9) IT - Defenses Flashcards
defenses: mnemonic
POP CANS
defenses: list
1) Privilege
2) Others
3) Property
4) Consent
5) Authority
6) Necessity
7) Self-defense
consent: result
total defense (so P loses claim)
consent: kinds
1) express
2) by implication
3) as MOL
consent: express: def
affirmatively communicates permission (usu by words)
consent: implication: def
RP would interpret P’s conduct as evidencing permission to act (by conduct) (sports)
consent: limitation
exceeding scope of consent given/implied (use gun to prevent eating twinkie)
consent as MOL: def
1) P is unable to consent and
2) emergency action needed to prevent his death or serious injury
3) RP would be expected to consent under the circs
4) no reason to believe this P would not consent
consent: exception
mistake (sometimes)
consent –> mistake: rule
if:
1) mistake goes to core/nature of the act (rather than a collateral matter) AND
2) D knows about P’s mistake, then no consent
mistake: result
cancels out consent so that there’s still tort liability/recovery
collateral mistake: result
doesn’t count as a mistake, so there’s still consent, so no tort recovery
self defense: elements
D:
1) honestly + reasonably believes
2) that used reasonable / proportionate force
3) to prevent imminent/unprivileged attack
self defense: imminent
once threat is over, defense won’t work!
self-defense: honestly/reasonably believes? result
ok if mistaken (as long as honestly/reasoanbly believed)
SD: reasonable/proportional: rule
deadly force cannot be used to meet nondeadly force
SD: reasonable/proportional: retreat
SOME JS: must retreat before using deadly force if safe to do so
Self defense: retreat: exceptions
1) never have to retreat from own home
2) never have to retreat from loaded gun
Others: def
D entitled to defend another person from an attack by P to the same extent that 3rd person would be lawfully entitled to assert self-defense
property: def
ok use reasonable force to defend (prevent a tort against) real + personal property
property: reasonable (+ojo)
deadly force is never reasonable to defend property
but: maybe the situation started as d. of property but has now become d. of a person?
property: trespass
ok use reasoanble force to eject trespasser from personal property, AFTER asking them to leave
property: trespass to chattels: rule
ok to use reasonable, nondeadly force to get back one’s personal property, IF:
1) D is in immediate hot pursuit, AND
2) request is made for return of the property (exception)
property: trespass to chattels: request to return: exception
dnn ask for return of the property if it’s futile
necessity: General rule
ok injure PROPERTY if reasonably believes nec. to avoid a substantially greater harm to the public, himself, or to his property
necessity: kinds
1) public
2) private
necessity: public: def
D is acting to protect the general public from SEVERE harm (ex. disasters)
note: could be 5A/takings
necessity: private: def
D commits intentional tort for D’s own personal benefit and argues it was the right thing to do (substantially greater harm)
necessity: liability?
!! D IS liable for any damage he causes in PRIVATE necessity (even if not liable for the tort)
authority: areas
1) arrest
2) shopkeeper’s privilege
3) discipline
authority: arrest: when permitted: police officer
1) felony: police officer can arrest anyone PO reasonably believes committed a felony
2) misdemeanor: Po can only arrest if misdemeanor is breach of the public peace
authority: arrest: private person
private individuals act at their own peril bc if they’re wrong about you committing the felony/public misdemeanor, then they’re liable for torts committed
authority: arrest: exception ko
shopkeeper’s privilege (but it’s also an independent subdefense of authority–conceptually not just an exception)
authority: shopkeeper’s privilege: def
D shopkeeper is not liable for false imprisonment ni related tort IF
1) RS that P stole goods
2) reasonable time
3) reasonable manner/force of detention on premises or in immediate vicinity
authority: discipline: def
D charged with maintaining discipline (ex. parent or teacher) may use reasonable force to perform this duty
