The defense of consent operates as a bar to recovery for the intentional infliction of harmful or offensive touchings of the victim. Consent may be express or implied; if implied, it must be determined on the basis of reasonable appearances. When a person voluntarily participates in an altercation, he may not recover for the injuries which he incurs, unless force in excess of that necessary is used and its use is not reasonably anticipated. The use of unnecessary and unanticipated force vitiates the consent.
The parents' minor son injured his eye during a fistfight with the insureds' minor son. The parents brought suit against the insureds and the insurer to recover medical expenses. The trial court dismissed the suit, finding that the parents' son consented to the fight and was not entitled to recover his medical expenses.
Should the insureds and insurer be liable for the injuries sustained in a voluntary fistfight?
The court affirmed the judgment dismissing the parents' suit for injuries their minor son sustained in a fistfight. The court held that the defense of consent operated as a bar to recovery for the intentional infliction of harmful or offensive touching of the victim. Consent could be expressed or implied and, if implied, it had to be determined on the basis of reasonable appearances. When a person voluntarily participated in an altercation, he could not recover for the injuries that he incurred, unless force in excess of that necessary was used and its use was not reasonably anticipated. The evidence showed that the parents' minor son left the safety of his home to meet the insureds' son to fight. Both boys exchanged blows and neither used a weapon. The fact that the insureds' son threw the first punch did not vitiate the parents' minor son's consent to the fight.