Doe v. Johnson
817 F.Supp. 1382 (W.D. Mich. 1993)
Facts: Johnson transmitted HIV to Jane Doe through consensual sexual contact. He didn't warn her that he might have it or use a condom.
Procedure: Considering a motion to dismiss at the trial level.
Issue: Was it a battery?
Holding: Yes.
Reasoning: One who knows he has a venereal disease and knows his partner doesn't know, commits a tort by having intercourse, consensual or not.
Showing posts with label consent. Show all posts
Showing posts with label consent. Show all posts
Monday, September 8, 2008
Kennedy v. Parrott
Kennedy v. Parrott
243 N.C. 355, 90 S.E.2d 754 (1956)
Facts: Plaintiff consented to an appendectomy; her doctor, while operating, the doc noticed some cysts and operated on them too. After the operation, the plaintiff developed phlebitis in her leg and sued the doctor for battery (thinking the vein cut while operating on the cysts led to blood clots).
Procedure: Trial level held a nonsuit for the defendant.
Issue: Did her consent cover the extended touching?
Holding: Yes.
Reasoning: When a surgeon is acting in a professional capacity, consent should be construed as broadly as possible (as a matter of policy). (PS- no longer good law.)
243 N.C. 355, 90 S.E.2d 754 (1956)
Facts: Plaintiff consented to an appendectomy; her doctor, while operating, the doc noticed some cysts and operated on them too. After the operation, the plaintiff developed phlebitis in her leg and sued the doctor for battery (thinking the vein cut while operating on the cysts led to blood clots).
Procedure: Trial level held a nonsuit for the defendant.
Issue: Did her consent cover the extended touching?
Holding: Yes.
Reasoning: When a surgeon is acting in a professional capacity, consent should be construed as broadly as possible (as a matter of policy). (PS- no longer good law.)
Ashcraft v. King
Ashcraft v. King
228 Cal.App.3d 604, 278 Cal.Rptr. 900 (1991)
Facts: Woman consented to an operation as long as any required blood transfusions were made from family donated blood; hospital took family blood but used the hospital stores anyway. Woman got AIDS from the HIV positive blood the hospital used.
Procedure: (It's an appellate court, but the procedural history isn't explicit.)
Issue: Was it a battery, or did she consent?
Holding: Battery.
Reasoning: Her consent had limits; their behavior went beyond it.
228 Cal.App.3d 604, 278 Cal.Rptr. 900 (1991)
Facts: Woman consented to an operation as long as any required blood transfusions were made from family donated blood; hospital took family blood but used the hospital stores anyway. Woman got AIDS from the HIV positive blood the hospital used.
Procedure: (It's an appellate court, but the procedural history isn't explicit.)
Issue: Was it a battery, or did she consent?
Holding: Battery.
Reasoning: Her consent had limits; their behavior went beyond it.
Reavis v. Slominski
Reavis v. Slominski
250 Neb. 711, 551 N.W.2d 528 (1996)
Facts: Reavis was the employee of Slominski. They'd had prior sexual relations during a prior period of her employment with him, however the incident in question was the first since she'd resumed working for him. Both were at least somewhat intoxicated and alone with each other when Slominski locked a door and started kissing her. Reavis said no, but eventually went along because she felt she couldn't do anything and that Slominski would just laugh. The intercourse hurt her. She sued for battery since her actions didn't amount to consent, and even if they did, they wouldn't count because she had an abnormal ability to refuse sexual intercourse as a result of childhood sexual abuse.
Procedure: Trial court jury found for Reavis. Appealed by Slominski.
Issue: Did her words and actions amount to consent?
Holding: Perhaps; remanded for new trial.
Reasoning: The trial court erred in refusing to tell the jury that (a) incapacity only cancels out consent if that incapacity affects her ability to understand and judge her conduct and (b) the defendant has to have knowledge of that incapacity.
250 Neb. 711, 551 N.W.2d 528 (1996)
Facts: Reavis was the employee of Slominski. They'd had prior sexual relations during a prior period of her employment with him, however the incident in question was the first since she'd resumed working for him. Both were at least somewhat intoxicated and alone with each other when Slominski locked a door and started kissing her. Reavis said no, but eventually went along because she felt she couldn't do anything and that Slominski would just laugh. The intercourse hurt her. She sued for battery since her actions didn't amount to consent, and even if they did, they wouldn't count because she had an abnormal ability to refuse sexual intercourse as a result of childhood sexual abuse.
Procedure: Trial court jury found for Reavis. Appealed by Slominski.
Issue: Did her words and actions amount to consent?
Holding: Perhaps; remanded for new trial.
Reasoning: The trial court erred in refusing to tell the jury that (a) incapacity only cancels out consent if that incapacity affects her ability to understand and judge her conduct and (b) the defendant has to have knowledge of that incapacity.
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