The following section from Day on Torts Leading Cases in Tennessee Tort Law​​​ is out of date and should not be used. It remains a part of this site for historical purposes only. An updated version of the book is available by subscription at (Additional information below.)

§6.3 Defense – Consent

The Case: Kline by Kline v. Jordan , 685 S.W.2d 295 (Tenn. Ct. App. 1984).

The Basic Facts: Parents alleged the doctor's examination of minor child was assault and battery.

The Bottom Line:

  • "For a cause of action for assault and battery to arise, there must be an absence of consent. Ray v. Scheibert, [484 S.W.2d 63 (Tenn. Ct. App. 1972)]. Consent may appear from the circumstances, so that if there was some manifestation of consent upon which the defendant could reasonably rely, he would not be liable. As Prosser has stated, '[c]onsent to an act is simply willingness that it shall occur. Actual willingness, established by competent evidence, will prevent liability; and, if it can ever be proved, will no doubt do so even though the plaintiff has done nothing to manifest it to the defendant. But the converse is also true, that a manifestation of consent, upon which the defendant may reasonably rely, will be equally effective even though there is no willingness in fact. In our society we must perforce rely upon the overt words and acts of others, rather than upon their undisclosed minds. Consent may therefore be manifested by words. The defendant is entitled to rely upon what any reasonable man would understand from the plaintiff's conduct. [W. Prosser, The Law of Torts, § 18 (4th ed. 1971)]." 685 S.W.2d at 295.

Other Sources of Note: Doe v. Mama Taori's Premium Pizza, LLC , No. M1998-00992-COA-R9-CV, 2001 WL 327906 (Tenn. Ct. App. Apr. 5, 2001) (holding the consent is not effective to void liability if, "(1) the person giving consent lacked the necessary capacity, (2) the consent was coerced, (3) the person giving the consent was mistaken about the nature and quality of the act, or (4) the nature of the act was such that no person could consent to it … Incapacity to give consent may arise from age, intoxication, or mental incompetence.").

After an accident, many injury victims and their families want more information on the accident and their legal rights. Consequently, many of them have found their way to these pages. While we are happy you are here, please understand Day on Torts: Leading Cases in Tennessee Tort Law was written to be a quick, invaluable reference for Tennessee tort lawyers. While the book provides the leading case for more than 300 tort law subjects and thousands of related case citations, it is not a substitute for personalized legal advice from a qualified lawyer.

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

The book is now available electronically by subscription at The new format allows us to keep the book current as new opinions are released. BirdDog Law also has John's Tennessee Law of Civil Trial and Compendium of Tennessee Tort Reform Statutes available by subscription, as well as multiple free resources to help Tennessee lawyers serve their clients

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