Affirmative Defenses Flashcards
O’Brien v. Cunard S.S. Co.
On Board Vaccination
If the plaintiff does not indicate that they do not consent, or if in the circumstances consent is implied, a defendant is not liable.
Mohr v. Williams
ENT Decision
Even if a defendant acts in good faith and without negligence, they may still be held liable if they act without the consent of the plaintiff. However, this may mitigate the damages a defendant incurs.
Hackbart v. Cincinnati Bengals, Inc.
Football Inury
Players consent to injuries inflicted within the scope of the rules of a game. This includes actions which may be fouls that regularly occur and are expected during the course of the game.
De May v. Roberts
Birthing Assistant
- Consent is invalid if it has been obtained through fraud. However, if the fraud is collateral consent is still valid.
- Consent can be revoked retroactively.
Surocco v. Geary
Fire
- Individual rights of property can be superseded by human necessity in extreme circumstances, especially in situations of public necessity.
- The authority figure is critical as they must protect the public rather than satisfy their personal interests.
Vincent v. Lake Erie Transp. Co.
Disaster While Docked
- Even if decisions are made in good faith and without negligence, if the action is intentional the plaintiff can recover damages.
- A plaintiff may recover damages if the purpose of the action is to protect private interests.
Freehe v. Freehe
Husband Sues Wife
The court decided that interspousal tort immunity was outdated and that the immunity should be abandoned in personal injury cases.
Zellmer v. Zellmer
Child Drowns
Parents and those in loco parentis are immune from tort liability as it allows parents to discipline their children as they see fit.
Abernathy v. Sisters of St. Mary’s
Negligence at Charity Hospital
The public policy benefits of protecting charities is outdated as charities are now big businesses capable of absorbing the cost of damages.
Deuser v. Vecera
Park Ranger Arrest
The US government cannot be sued for the actions of an employee if the employee is (1) acting as a matter of choice and (2) acting to support the social, political or economic goals of the governing body.
Delong v. Erie County
Woman Killed by Intruder
The municipality and police force do not have a general duty to protect the public unless there exists a special duty. Once the municipality promises an individual a service, they are responsible for not doing it negligently.
Riss v. New York
Acid Thrown
A municipality has immunity from tort prosecution for failure to act. Municipalities are bound by the resources they are allocated so holding them liable for not providing services creates limitless liability and requires municipalities to have limitless resources.
Prima Facie Case
Case in which the technical elements of the tort are met, burden is on the plaintiff to prove this
Affirmative Defense
Defendant concedes that the elements of the tort are met but nonetheless argue that they should not be held liable, burden is on the defendant to prove this
Self-Defense
Anyone is privileged to use reasonable force to defend himself against a threatened battery
Defense of Others
Anyone is privileged to use reasonable force to defend a third party against a threatened battery
Katko v. Briney
Spring Gun Trap
A property owner cannot use lethal or indiscriminate force to defend their property if they do not believe their life is in danger.
Recovery of Property
A defendant may use force to recapture chattel if the chattel was taken by force or fraud and the defendant is in fresh pursuit.
Defense of Property
A defendant may use reasonable, non-lethal and non-indiscrimiate force to defend their property.
Consent
Plaintiff voluntarily exposed themselves to the tort.
Rules and Customs
Players consent to injuries inflicted within the scope of the rules of a game including fouls that are expected to occur during the course of the game
Discipline
Parents and those acting in a parental role can use reasonable force and restraint against their children
Shopkeeper’s Privilege
Merchant is privileged to detain someone they reasonably suspect of theft
Bonkowski v. Arlan’s Department Store
Jewelry Thief
- Shopkeeper’s privilege: merchant is privileged to detain someone they suspect of theft.
- The merchant must have a reasonable belief the theft occurred and they must conduct a reasonable investigation and must be close to the store itself.
Sindle v. New York City Transit Authority
School Bus
Those in a parental role can use reasonable force to maintain discipline for safety purposes.
First Amendment
Constitutionally protected speech is a complete defense to IIED.
Public Necessity
In extreme circumstances individual property rights may be superseded by human necessity
Assumption of Risk
If a plaintiff takes on a risk before they perform an activity, they are unable to recover from injuries resulting from that activity.
Unforeseeable Misuse
If the plaintiff misuses the product in an unforeseeable way, they are liable for injuries resulting from that misuse. However, if the manufacturer is aware that their product is widely and foreseeably misused by consumers they are liable for injuries resulting from that use.
