Appellate Division of the Supreme Court of New York, Second Department · Torts
TortsCommon carrier liabilityConsentCivil liability arising from sexual assaultcommon carrierpassengerchauffeurconsent
Facts
Plaintiff was fifteen years old and claimed that while she was a passenger of defendant common carrier, defendant's chauffeur forcibly raped her. The chauffeur testified that plaintiff consented to the sexual relations. It was conceded that if the chauffeur assaulted plaintiff while she was a passenger, defendant would be liable in damages for failure to perform its duty as a common carrier to its passenger. The jury was instructed that plaintiff could recover even if she consented, though consent could mitigate damages, and returned a verdict of $3,000.
Issue
Whether a fifteen-year-old female passenger who willingly consented to sexual intercourse with the defendant's chauffeur, while understanding the nature and quality of her act, had a civil cause of action for damages based on her minority alone. Also, whether the trial court erred in instructing the jury that she could recover even if she consented.
Rule
Although intercourse with a female under eighteen may constitute second-degree rape under the Penal Law even if she consents, that criminal statute does not by itself furnish a basis for civil liability in her favor. A female under eighteen has no cause of action against a male with whom she willingly consorts if she knows the nature and quality of her act.
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One of 10 multiple-choice questions for this case. Pick an answer to see why.
In Buffalo, 17-year-old Elena Ruiz accepted a ride home from a shuttle operated by Lakeshore Transit Co. During a stop, she willingly engaged in sexual intercourse with the shuttle driver and later admitted she fully understood the nature of the act. She sues the driver for damages, arguing that because she was under eighteen, his conduct was criminal regardless of her consent.
Under the majority rule, which is the strongest basis for resolving Elena's civil claim?
Explanation. The majority held that although intercourse with a female under eighteen may be criminal even with her consent, that criminal prohibition does not itself furnish a civil cause of action in her favor when she willingly consorted and knew the nature and quality of her act. The rule rejects using minority alone to create tort liability in those circumstances. (Derived from Barton v. Bee Line, Inc. (n.d.).)