dissenting.
I must respectfully dissent. However, in doing so, I wish to begin by noting my agreement with the plurality on several points.
Although the plurality does not deal separately with the district court’s overruling of the motion for directed verdict made by the defendant-appellant and cross-appellee, James Slominski, D.D.S., at the close of the evidence presented by the plaintiff-appellee and cross-appellant, Mary Reavis, I agree that Slominski cannot successfully predicate error on that ruling, for by adducing evidence after the ruling, he waived any error such ruling may have created. See Farmers and Merchants Bank v. Grams, ante p. 191, 548 N.W.2d 764 (1996). I agree, too, that the theory of recovery at issue is one for battery, not assault, and that the Restatement (Second) of *740Torts § 892 (1979) accurately states the law of consent in Nebraska. I also agree that consent can be rendered ineffective if the person consenting lacks the legal capacity to do so or if the person was coerced into consenting. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 18 (5th ed. 1984).
Having reviewed all of that, I recall that Slominski does not deny that he engaged in sexual intercourse with Reavis, but, rather, contends that the contact was consensual. Although, so far as the record shows, Reavis did not file a reply denying that assertion, she presented, and the trial court received, evidence attempting to prove that she did not consent to sexual contact with Slominski or, as an alternative, that any consent she gave was not effective because she either lacked the legal capacity to consent to sexual intercourse or was coerced by Slominski into consenting.
In support of her claim that she lacked the legal capacity to consent to sexual intercourse, Reavis introduced the testimony of Dr. Wesley Sime, a counseling psychologist, as follows:
Q . . . Can you explain why — why [Reavis’] childhood experiences could hamper her in the ability to say no to . . . Slominski?
A When you’ve been abused as a child in a way where you cannot escape, so to speak, and where there’s a circumstance where if you protest too vigorously, if you fight back, you get punished or hurt more so, then it makes it difficult for a person as an adult to take the risk of making a huge and a — a — a outlandish kind of a cry out.
Q . . . And based on all that and your experience, do you have an opinion with a reasonable degree of psychological certainty, whether or not . . . Reavis could consent to . . . Slominski’s sexual advances?
A My opinion is that consent is — consists of a yes or no. It consists of an attempt or a gesture to express one’s feelings about a situation. And that in this situation her *741ability to consent and carry out the consent or not consent was compromised by the circumstances.
Q And can you be more specific about what circumstances prevented [Reavis] from — from enforcing the no that she told him?
Q . . . The question is you understand that [Reavis] said no to . . . Slominski at least twice, according to her testimony, on the 31st. Correct?
A That’s correct.
Q What prevented her from crying out for help or from enforcing the no?
A Well, there’s probably at least two variables here. Number one is she was isolated in an area with him. The door was locked, which was an implied threat. And secondarily, the fact that she has suffered previous trauma in association with the crying out experience or making a — making a huge appeal, would make it difficult for a person to make that a public kind of a[n] appeal.
Q And you’ve heard testimony where [Reavis] has said to . . . Slominski I was able to say no at some times.
A Yes.
Q And other times I was not.
A Yes.
Q What’s the difference?
A It’s a situational refusal. In other words, it’s — it’s easier to say no when there are other people at least in the vicinity where it would be difficult to carry out something that is kind of questionable of nature. When you’re isolated, that’s a situationally difficult situation to refuse and to enforce a refusal.
In further support of her claim of incapacity, Reavis also presented the testimony of Dr. Y. Scott Moore, her treating psychiatrist. Moore testified to the following:
Q Based on your examination of . . . Reavis, your review of the hospital records, your experience, your *742training, do you have an opinion with any degree — with a degree of reasonable .... A reasonable degree of medical certainty, whether or not . . . Reavis could have consented to have sex with her boss on December 31, 1991?
[A] Yes.
Q What is that opinion?
[A] Yes, I believe that . . . Reavis was in the same position then that she’d always been in which she had the inability to refuse him. I think she felt that her job depended upon having sex with him, and that she had no recourse.
Slominski countered by testifying that he had no knowledge of Reavis’ abusive childhood and that he did not know that she was in any way mentally disturbed. He argues that the district court thus erred in admitting the evidence regarding Reavis’ alleged lack of capacity to consent to sexual intercourse and that the error prejudiced him.
The most that Sime’s and Moore’s testimony shows is that due to Reavis’ abusive childhood, she might fear protesting too vigorously; that because she was isolated and the door was locked, she would have difficulty saying no and enforcing her refusal; and that she felt unable to refuse Slominski because she felt her job depended on having sex with him.
As I understand it, the test for legal capacity depends upon the state of one’s knowledge, not upon the exercise of one’s will. Like many other tests, it merely requires one to understand and appreciate the nature and consequences of the act at issue. Therefore, one has testamentary capacity if one understands the nature of one’s act in making a will or codicil thereto, knows the nature and extent of one’s property, knows and understands the proposed disposition of one’s property, and knows the natural object of one’s bounty. In re Estate of Wagner, 246 Neb. 625, 522 N.W.2d 159 (1994); In re Estate of Peterson, 232 Neb. 105, 439 N.W.2d 516 (1989). Similarly, one has the legal capacity to marry if one has sufficient capacity to understand the nature of the marital contract and the *743obligations and responsibilities it creates. Edmunds v. Edwards, 205 Neb. 255, 287 N.W.2d 420 (1980); Fischer v. Adams, 151 Neb. 512, 38 N.W.2d 337 (1949).
Although we have not heretofore addressed the issue of capacity to consent with respect to sexual intercourse, other jurisdictions have concluded that one has such capacity if one understands and appreciates the nature of the act of sexual intercourse, its character, and the probable or natural consequences which may attend it. State v. Johnson, 155 Ariz. 23, 745 P.2d 81 (1987); Salsman v. Com., 565 S.W.2d 638 (Ky. App. 1978); Stephenson v. State, 35 Ala. App. 379, 48 So. 2d 255 (1950), cert. denied 254 Ala. 313, 48 So. 2d 259; People v. Boggs, 107 Cal. App. 492, 290 P. 618 (1930); People v. Blunt, 65 Ill. App. 2d 268, 212 N.E.2d 719 (1965). See, also, Annot., Rape or Similar Offense Based on Intercourse With Woman Who Is Allegedly Mentally Deficient, 31 A.L.R.3d 1227 (1970). Therefore, the proper inquiry in this case is whether Reavis’ “mental disorder was an impairment of such a degree that it precluded the victim from understanding the act of intercourse and its possible consequences.” Johnson, 155 Ariz. at 26, 745 P.2d at 84.
The evidence in this case falls far short of the test. There is absolutely no evidence that Reavis did not understand and appreciate the nature of the act of sexual intercourse, its character, and the probable or natural consequences which may attend it. By all accounts, Reavis was a mature woman who had substantial sexual experience. Not only was she married and the mother of four children, she had previously engaged in a sexual relationship with Slominski. Moreover, there is no evidence that Reavis was in any way subnormal in intelligence or deficient in her ability to understand things. In fact, the evidence at trial shows quite the opposite. It shows that Reavis was a very capable employee who was instrumental in introducing new business practices to improve the profitability of her workplace.
In sum, there is no factual foundation for the opinion evidence that Reavis lacked the capacity to consent, because the facts relied upon by the witnesses in reaching that conclusion do not relate to the applicable legal test. See, Priest v. *744McConnell, 219 Neb. 328, 363 N.W.2d 173 (1985) (factual basis lacking for opinion that witness had confabulated); Dawson v. Papio Nat. Resources Dist., 206 Neb. 225, 292 N.W.2d 42 (1980) (opinions based on unproven assumption inadmissible). Moreover, admission of the opinion evidence was prejudicial, for it permitted the jury to improperly speculate that Reavis lacked the legal capacity to consent to sexual intercourse.
The plurality’s view that this dissent recasts the posture of this case and supplements the arguments made in Slominski’s brief overlooks that Slominski’s brief explicitly argues “it was completely irrelevant whether Reavis’ capacity to give consent was hampered somehow by her prior abuse as a child when she verbally and by her actions consented to have sex with Slominski.” Brief for appellant at 22. No matter how inartfully the issue may have been raised at trial by Slominski, the question of the proper legal standard to govern claims of incapacity to consent to sexual intercourse was before the trial court and is before this court. With regard to such questions of law, we have an obligation to come to an independent conclusion. Welch v. Welch, 246 Neb. 435, 519 N.W.2d 262 (1994); Duggan v. Beermann, 245 Neb. 907, 515 N.W.2d 788 (1994).
It appears that the reason the plurality believes this dissent recasts the posture of this case is that the plurality understands Slominski to have raised the issue of incapacity only as it relates to Reavis’ failure to prove that Slominski had any knowledge of her alleged incapacity. But I respectfully submit that the issue of Slominski’s knowledge of Reavis’ incapacity is intimately related to the legal standard for capacity to consent.
The general rule is that “one who has reached the age of majority can give an effective consent to all kinds of conduct unless the defendant knows or has reason to know of some kind of abnormality, temporary or permanent, of the consenting person.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 18 at 114 (5th ed. 1984). The type of abnormality which is contemplated as negating consent is that which renders one mentally incapable of giving consent. Thus, in *745determining whether one gave effective consent to sexual intercourse, the inquiry is twofold: First, did the person understand and appreciate the nature of the act of sexual intercourse, its character, and the probable or natural consequences which may attend it? If the person did not, we then must ask whether the defendant had real or constructive knowledge of the victim’s incapacity. If the defendant was ignorant of the victim’s incapacity, then no liability attaches.
Thus, in a case of otherwise effective consent, liability can be avoided upon proof that the victim had the capacity to consent or upon proof that the defendant was ignorant of the victim’s incapacity.
In a related matter, I cannot agree with the plurality’s conclusion that the “relevancy of Reavis’ evidence regarding her incapacity hinged on proof that Slominski knew or had reason to know of the incapacity.” This is simply not so. As noted earlier, evidence of incapacity is relevant in its own right to the issue of effectiveness of consent and is not dependent on a showing that the defendant had knowledge of the victim’s incapacity. Once it is understood that the two issues are interrelated but separate, it becomes apparent that the plurality has erred in applying the rules governing the conditional admittance of evidence. Those rules apply only “[w]hen the relevancy of evidence depends upon the fulfillment of a condition of fact----” Neb. Rev. Stat. § 27-104(2) (Reissue 1995). See, also, 1 McCormick on Evidence § 58 (John W. Strong 4th ed. 1992). That condition does not obtain here, since evidence concerning capacity is relevant in its own right and not dependent on the fulfillment of a condition.
As a result of applying the wrong evidentiary rule, the plurality chastises Slominski for not seeking a conditional admittance of Reavis’ proffered evidence and failing to move to strike it. The plurality then reasons that Slominski has waived his right to assert prejudicial error on appeal because he failed to make a timely objection. But I am aware of no rule of evidence in our adversarial system which requires an advocate to request that an opponent’s evidence be admitted conditionally; it is the proponent of the proffered evidence who must seek the conditional admittance of that evidence. Nor can it be *746maintained that Slominski was under an obligation to move to strike the evidence, since, as explained previously, the rules for the conditional admittance of evidence do not apply here. I must also disagree with the plurality’s determination that Slominski did not preserve this issue on appeal. By raising a timely objection to Reavis’ evidence of incapacity, Slominski did all that was required to preserve the issue.
Having set out the appropriate legal standard for determining capacity to consent and identifying the crux of my disagreement with the plurality on the issues in this case, I now turn to comment on the substantive legal standard adopted by the plurality and its analysis.
The plurality imports into the realm of tort law the legal concepts contained within our criminal sexual assault statutes. Neb. Rev. Stat. §§ 28-319 and 28-320 (Reissue 1995). This, I respectfully suggest, is imprudent.
Under both §§ 28-319 and 28-320, sexual assault can be proved without the consent of the victim if the perpetrator “knew or should have known that the victim was physically or mentally incapable of resisting or appraising the nature of his or her conduct.” This phrase embodies both the concept of duress and the concept of incapacity. Given the complexity of these issues, it seems most unwise to confuse the legal concepts by adopting a unified standard. As the plurality itself notes, the jury in this case would have benefited by being instructed to reach its decision through a step-by-step analysis.
The plurality rightly points out that its concept of capacity to consent is much broader than the one other jurisdictions have adopted. Under the plurality’s analysis, one lacks the capacity to consent if one is “physically and mentally incapable of resisting.” But this deprives capacity of its legal meaning. For example, consider the case of a person who is sexually assaulted and is physically incapable of resisting. This person’s consent is ineffective not because she or he lacks the capacity to consent, but, rather, because the use or threat of force vitiates any consent that she or he might give. The other half of the formulation relates to those “mentally incapable of resisting.” This is essentially a standard which relies upon the exercise of one’s will. Such standards are commonly criticized *747on the basis that they lead to mistakes because, as noted by a respected panel of psychiatrists speaking for the American Psychiatric Association, “[t]he line between an irresistible impulse and an impulse not resisted is probably no sharper than that between twilight and dusk.” Insanity Defense Work Group, American Psychiatric Association Statement on the Insanity Defense, 140 Am. J. Psychiatry 681, 685 (1983). The problem is not that mental health professionals do not know where to locate an appropriate cutoff point in the strength of impulses, or in this case the mental capability to resist; rather, the problem is that mental health professionals have no good way to gauge the strength of such internal impulses at all. Because of the difficulties of proof, I would not adopt a standard relying on the exercise of will as the law governing the capacity to consent.
Be that as it may, the analysis made herein regarding the evidence of capacity in this case is correct even under the exercise of will test adopted by the plurality. The expert testimony that Reavis felt unable to refuse Slominski because she felt her job depended on having sex with him is cited by the plurality as having undermined Reavis’ capacity to consent and as a form of duress. But this type of testimony is irrelevant to both capacity and duress. It is a well-settled proposition of law that economic duress such as a threat of loss of employment is not sufficient to invalidate consent. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 18 (5th ed. 1984). See, also, Foley v. Polaroid Corp., 400 Mass. 82, 508 N.E.2d 72 (1987) (threats of discharge from employment not sufficient to invalidate consent that contradicts false imprisonment); Faniel v. Chesapeake & Potomac Telephone Co., 404 A.2d 147 (D.C. App. 1979) (fear of losing one’s job, although powerful incentive, does not render involuntary the behavior induced). Thus, although Reavis’ fear of losing her job might have been a powerful incentive, it did not affect her capacity to consent or constitute a form of duress as a matter of law. Whether such a fear would be sufficient to support a claim of sexual harassment under title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(l) (1988), or the Nebraska Fair Employment Practice Act, Neb. Rev. Stat. § 48-1101 et seq. *748(Reissue 1993), is a different question; but this is not such a case.
Other expert testimony that the circumstances of being isolated and behind a locked door compromised Reavis’ ability to withhold consent does not show that Reavis was incapable of consenting or resisting. It is therefore irrelevant to the issue of capacity. As an implied threat, it more properly belongs in the category of duress or coercion.
This leaves only the testimony that Reavis might fear protesting too vigorously because of her abusive childhood. That testimony, even when construed in the light most favorable to Reavis, falls far short of showing that Reavis was “mentally incapable of resisting.” The most it shows is that because of her abusive childhood, it would be more difficult for Reavis to protest vigorously. There are simply no facts in evidence which would support an opinion that Reavis was “mentally incapable of resisting.”
Because the facts relied upon by the witnesses in reaching that conclusion do not relate to the plurality’s legal test, I have to conclude that there is no factual foundation for the opinion evidence that Reavis lacked the capacity to consent.
Having reviewed the law of consent, I move on to the question of whether the facts are such that as a matter of law, Reavis effectively consented to having sexual relations with Slominski. In this regard, the plurality correctly observes that a trial court may properly direct a verdict as a matter of law only when the facts are conceded, undisputed, or such that reasonable minds could draw but one conclusion therefrom. Nickell v. Russell, 247 Neb. 112, 525 N.W.2d 203 (1995); Lindsay Mfg. Co. v. Universal Surety Co., 246 Neb. 495, 519 N.W.2d 530 (1994); Kozeny v. Miller, 243 Neb. 402, 499 N.W.2d 75 (1993). Moreover, the party against whom the verdict is directed is entitled to have every controverted fact resolved in his or her favor and to have the benefit of every inference which can reasonably be drawn from the evidence. If there is any evidence which will sustain a finding for the party against whom the motion is made, the case may not be decided as a matter of law. Nickell, supra; Lindsay Mfg. Co., supra.
*749Under the record with which we are presented, there is no triable issue of fact on the matter of consent. How can one’s disrobing and one’s willing participation in sexual intercourse be considered an ambiguous indication of consent to have intercourse? The plurality has no answer, except to say that “disrobing does not necessarily indicate that [Reavis] consented to the sexual contact if the prior events indicated that she felt that she had no other choice but submission at that time.” While I recognize that there could be an issue regarding whether Reavis was coerced by Slominski, that does not render Reavis’ conduct an ambiguous indication of her consent.
Coercion, as noted previously, goes to the effectiveness of consent. So the ultimate question becomes whether Slominski forced Reavis to engage in sexual intercourse with him.
Reavis admitted that Slominski never physically forced her to have sex with him, and a review of the record reveals no evidence that Slominski ever threatened Reavis with physical force. Nonetheless, Reavis claims that she felt that she had no other choice but to engage in sexual intercourse with Slominski because she feared losing her job and needed the money.
As a consequence, there is no issue of fact for the jury to decide, not because Reavis was “unchaste” or “errant,” and was not subjected to physical force, but because, as noted in Schieffer v. Catholic Archdiocese of Omaha, 244 Neb. 715, 718, 508 N.W.2d 907, 911 (1993), it is a fundamental principle of common law that “ ‘to one who is willing, no wrong is done.’ ” The district court clearly erred in not sustaining the motion for a directed verdict Slominski made at the close of all the evidence.
Accordingly, I would reverse the judgment of the district court and remand the cause for dismissal.
Fahrnbruch, J., joins in this dissent.