Lesson 3 Discussion B Dave and Sue boi age 21, have been dating for two years and have lived together and been sexually active with each other for over a year. Dave and Sue go to a party where Sue sees Dave talking to Sue's enemy, Mary. Sue decides to break up with Dave and starts drinking straight vodka to forget what a jerk Dave is. lifter several drinks, Sue staggers up to Dave and tells him she wants to break up and then passes out. Dave thinks this is the vodka talking takes Sue home, undresses her and puts her in their bed. As Dave is brushing his teeth and getting ready for bed, Sue wakes up. She repeats that she wants to break up and says that Dave must sleep on the couch. Sue then falls asleep. Dave ignores Sue and gets into the bed. They do not have intercourse. In the morning, Sue is still mad, and moves out of their apartment. Sue sues Dave for battery. i.F-Ihat facts support her claim? TWhat defenses can Dave assert? issue: What are the facts and defenses surrounding an accusation of civil batteryr against Dave? Rule: The Restatement {Second} Torts 13 holds battery to be an offensive or harmful intentional contact with another. Defenses include consent, defense (of self or property} and recapture of chattels. Analysis: Dave had to physically handle Sue after she passed out, this contact could be considered by Sue to be offensive particularly after she had expressed an intent to "break up". The contact was about limited to carrying her to their communal domicile, but included undressing her. Dave's intent is clear, all of the touching was done on purpose. The fact that he did not intend it to be offensive is not relevant, the offense is in Sue's perception. The question here would seem to be whether Dave can claim consent as a defense. Due to their standing relationship and shared domicile, the Restatement (Second) Tom holds that consent may be inferred from custom and usage, from prior dealings between the parties, or from the existence between them of some relationship. There is some question whether or not Sue's communicated intent to break up would be considered specific enough to revoke the implied consent of their relationship and duty of care by Dave. Just as intoxication vitiates effective consent according to the second