O'Brien v. Cunard S.S. Co.

Supreme Judicial Court of Massachusetts · 1891 · Torts

TortsBatteryConsentNegligenceCarrier liabilityassaultbatteryconsent

Facts

While traveling as an immigrant passenger from Queenstown to Boston, the plaintiff was vaccinated on board by the defendant's surgeon. Notices posted on the ship explained quarantine regulations and the surgeon's willingness to vaccinate passengers who lacked evidence of prior protection, and the plaintiff saw other women line up, show their arms, and receive vaccination certificates. When her turn came, she showed her arm, said she had previously been vaccinated though it left no mark, held up her arm for the surgeon, accepted the certificate stating she had been vaccinated, and used it at quarantine. There was no evidence that anyone touched her by force, that she objected, or that the defendant had been careless in selecting the surgeon or obtaining the vaccine matter.

Issue

Was there evidence that the surgeon committed an assault by vaccinating the plaintiff without her consent? If the vaccination was lawful, could the defendant steamship company be held liable for negligence in the surgeon's performance of the vaccination?

Rule

A medical touching is lawful if the plaintiff's overt acts and manifestations would indicate consent, regardless of unexpressed feelings. A shipowner satisfies its duty by providing a duly qualified and competent surgeon with proper instruments and supplies, and is not liable for the surgeon's negligence in treating passengers because that treatment is the passengers' business, not the carrier's business, and is not subject to the carrier's control.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

On a voyage from Lisbon to New York, North Channel Lines posted notices in several languages explaining that passengers without proof of immunization could receive a free injection from the ship's doctor and then avoid delay at inspection. Elena Marku watched other passengers step forward, bare their upper arms, receive the injection, and take the doctor's card; when her turn came, she silently rolled up her sleeve, extended her arm, accepted the card, and later used it to leave the terminal quickly. She later sues for battery, saying she never wanted the injection in her heart.

What is the strongest argument for the doctor and carrier on the battery claim?

Explanation. The governing rule is that the lawfulness of a medical touching depends on the plaintiff's overt acts and manifestations in context. If the plaintiff's behavior would indicate consent, the actor is justified, regardless of hidden feelings. Here, Elena joined the process, presented her arm, accepted the certificate, and used it, so there is no evidence of force against her will.