20. In this action, will the plaintiff prevail?

A defendant is not liable for an otherwise tortious act if the plaintiff consented to the defendant's act. The plaintiff's consent may be express (actual) or implied from the plaintiff's conduct, custom, and/or surrounding circumstances. Actual consent exists where the plaintiff has expressly shown a willingness to submit to the defendant's conduct. Implied consent may be apparent, meaning it reasonably seemed to the defendant that the plaintiff consented, regardless of the plaintiff's subjective state of mind (e.g., someone who voluntarily engages in sports). If the plaintiff does give consent, the defendant will not be privileged if he goes beyond the scope of that consent. That is, the plaintiff generally consents to the defendant's performing of acts of a certain nature, and not others. If the defendant invades the plaintiff's interests in a way that is substantially different from that which is consented to, he will be liable.

D is correct. The plaintiff consented to physical contact with the defendant and the defendant's conduct remained within the scope of that consent. Consent may be implied by taking into account the plaintiff's conduct, customary behavior in the situation, and other surrounding circumstances. Here, the plaintiff and the defendant were voluntarily participating in a basketball game that «had been rough from the beginning,» which included the use of elbows and knees to block opposing players, and the plaintiff made «liberal use of such tactics.» By taking part in the physically interactive basketball game in this way, the plaintiff gave his implied consent to contact that, outside the game, might have otherwise been considered a harmful or offensive.

A is incorrect. It is true that the plaintiff's consent was limited to ordinary game conduct. Had the defendant's intentional contact reached a level of force that fell outside the scope of ordinary gamesmanship among the group of players, he would have exceeded his privilege. But that was not the case, as the game was rough from the beginning and the plaintiff had participated in similar tactics, which implies consent to the defendant's similar level of contact.

B is incorrect. The privilege of consent shields a defendant from liability where the parties had impliedly agreed to a certain level of intentional contact that would otherwise amount to battery. This often applies to sports, where the parties impliedly consent to a certain amount of physical contact with one another.

C is incorrect. This answer reaches the correct answer with the wrong reasoning. The plaintiff will not prevail in an action against the defendant, but not because the plaintiff's consent was to «violent play.» The defendant did not have the plaintiff's blanket consent to any «violent play.» The game had been rough from the beginning, which included blocking with elbows and knees. Had the defendant engaged in «violent play» that exceeded the scope of the implied consent, the plaintiff could prevail in a claim for damages. However, the facts indicate that the defendant's contact with the plaintiff was within the scope of consent, which is why the plaintiff will lose.