Our focus, therefore, is on the plaintiff's actions at the time the polygraph was administered. If the plaintiff consented to the administration of the polygraph, then there can be no claim for assault and battery.
Consent is a defense to the intentional torts of assault and battery. W. Prosser, Law on Torts § 18 (4th ed. 1971). Consent may be manifested by an individual's words and/or affirmative actions which indicate a willingness for another's conduct to occur. Consent also may be indicated by inaction which indicates to another an implied or apparent willingness for conduct to occur. Restatement (Second) Torts § 892, comment b and c (1979). In effect, the individual's actions speak louder than words. Prosser, Law on Torts § 18.
In the instant action, plaintiff's conduct implied a willingness to have the polygraph administered. Plaintiff testified in her deposition that she did not tell either Limited's representative or the examiner that she did not want to take the test. Quinn depo. p. 70. Plaintiff also testified that she did not object to the examiner hooking up the polygraph equipment. Id. at 72. Prior to the test, plaintiff signed not one but two consent forms after reading them. Quinn depo. p. 68; Quinn depo. exhibits 10 and 11. These circumstances indicate an implied consent to have the test administered even though she felt compelled to submit. We conclude that as a matter of law plaintiff's consent negates her cause of action for assault and battery.
Our conclusion that plaintiff impliedly consented to the polygraph examination is supported by the absence of duress. Plaintiff testified that neither the examiner nor any representative from the company told her she had to take the polygraph test. Quinn depo. p. 70. Likewise, neither the examiner nor any company representative told her she had to sign the consent forms. Id. at 71. In addition, plaintiff's feeling of compulsion was at best an assumption on her part. Quinn depo. p. 73. Plaintiff was never told she would be fired if she did not submit to the exam. Plaintiff's Brief in Opposition to Defendant's Memorandum, Quinn affidavit. We recognize that plaintiff "felt that if I did not submit to it that I would either be terminated or looked upon with disfavor and suspicion by my superiors." Id. The plaintiff's perceptions of economic duress, however, are insufficient to negate plaintiff's conduct which manifested her implied consent.
Furthermore, a cause of action for battery requires offensive contact with the individual. Restatement (Second) of Torts § 13 (1965). During her deposition, plaintiff testified that she was not touched in any offensive manner. Quinn dep. p. 85. In the absence of this element, a cause of action in battery cannot be said to lie.
In conclusion, we refuse to recognize a cause of action for assault and battery merely on the basis that the plaintiff submitted to an employer requested polygraph. Plaintiff's conduct manifested her consent to the administration of the exam. In addition, the contact at issue was not offensive. Therefore, plaintiff's cause of action for assault and battery fails. An appropriate order will be entered.
AND NOW, this 9th day of May, 1989, upon consideration of the defendant's Motion for Summary Judgment and consistent with the accompanying opinion, it is
1. Summary judgment is denied as to Count I, Slander, of plaintiff's complaint.
2. Summary judgment is granted in favor of the defendants as to Count II, Slander by Self-Publication, of plaintiff's complaint. Count II is dismissed with prejudice.
3. Summary judgment is granted in favor of the defendants as to Count III, Assault and Battery, of plaintiff's complaint. Count III is dismissed with prejudice.