O’Brien v. Cunard S.S. Co.

Nature of the Case

This is an action to recover damages for assault and negligence.

Facts

Cunard S.S. Co. (D) provided smallpox vaccinations to immigrants on its ships to avoid quarantine problems when passengers arrived in the U.S. Notice of quarantine regulations and the willingness to give passengers vaccinations was posted throughout the ship in various languages.

About 200 female passengers were assembled to receive vaccinations. O’Brien (P) stood in a line of women who waited to have the injections and saw the entire process of examination and vaccination. When her turn came she showed her arm and told the doctor that she had been vaccinated before but it had left no mark. The doctor told her that she should be vaccinated again whereupon she raised her arm and received the shot. The ship’s doctor assumed that O’Brien consented to receiving the vaccination because there was nothing in her conduct to indicate the contrary.

O’Brien sued Cunard for vaccinating her against her will. The verdict was directed to Cunard and O’Brien appealed.

Issue

What is the test for determining whether a party has given consent in the context of battery?

Holding and Rule of Law

Consent or the lack thereof is determined using an objective reasonableness standard in light of the surrounding circumstances.

When consent is not expressed others may rely on the party’s behavior and overt acts in order to determine whether there has been consent. Based upon the facts herein, a reasonable person would conclude that O’Brien had consented to the vaccination. There were strict regulations regarding quarantine upon landing at the port to ensure that all the immigrants were protected from small-pox. Only those with a certificate of vaccination from the doctor of the ship were permitted to land. Notices were posted throughout the ship in many languages.

Under these facts the doctor could assume that the passengers understood the importance of receiving the vaccination and in not be quarantined upon arrival. O’Brien never expressly indicted that she did not want to be vaccinated and even held her arm up to accept the procedure. O’Brien then took the certificate. There was nothing in the conduct of expressions of the plaintiff that would lead a reasonable person to understand that she did not want the procedure performed upon her.

Disposition

Affirmed.