Wednesday, February 15, 2017

More on Consent

Responding to Katarina's post on consent.

By asserting a defense of consent the defendant would be stating that the allegation was true so far as there was harmful or offensive contact (or whatever the allegation), but that the plaintiff consented to the contact so there is no liability.

I think you would still assert this defense, but I imagine a defendant would want to assert it in the alternative.

First, deny the allegation regarding the harmful or offensive contact (or whatever), as was done in Kinsman. Then, in the alternative, that to the extent there was any contact at all, that the plaintiff consented to the contact.

This would be consistent with FRCP 8(d)(2)/(3).