Affirmative Defenses

Question 1

O’Brien v. Cunard S.S. Co.

On Board Vaccination

Answer 1

If the plaintiff does not indicate that they do not consent, or if in the circumstances consent is implied, a defendant is not liable.

Question 2

Mohr v. Williams

ENT Decision

Answer 2

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.

Question 3

Hackbart v. Cincinnati Bengals, Inc.

Football Inury

Answer 3

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.

Question 4

De May v. Roberts

Birthing Assistant

Answer 4

• 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.

Question 5

Surocco v. Geary

Fire

Answer 5

• Individual rights of property can be superseded by human necessity in extreme circumstances, especially in situations of public necessity.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.

Question 6

Vincent v. Lake Erie Transp. Co.

Disaster While Docked

Answer 6

• 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.

Question 7

Freehe v. Freehe

Husband Sues Wife

Answer 7

The court decided that interspousal tort immunity was outdated and that the immunity should be abandoned in personal injury cases.

Question 8

Zellmer v. Zellmer

Child Drowns

Answer 8

Parents and those in loco parentis are immune from tort liability as it allows parents to discipline their children as they see fit.

Question 9

Abernathy v. Sisters of St. Mary’s

Negligence at Charity Hospital

Answer 9

The public policy benefits of protecting charities is outdated as charities are now big businesses capable of absorbing the cost of damages.

Question 10

Deuser v. Vecera

Park Ranger Arrest

Answer 10

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.

Question 11

Delong v. Erie County

Woman Killed by Intruder

Answer 11

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.

Question 12

Riss v. New York

Acid Thrown

Answer 12

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.

Question 13

Prima Facie Case

Answer 13

Case in which the technical elements of the tort are met, burden is on the plaintiff to prove this

Question 14

Affirmative Defense

Answer 14

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

Question 15

Self-Defense

Answer 15

Anyone is privileged to use reasonable force to defend himself against a threatened battery

Question 16

Defense of Others

Answer 16

Anyone is privileged to use reasonable force to defend a third party against a threatened battery

Question 17

Katko v. Briney

Spring Gun Trap

Answer 17

A property owner cannot use lethal or indiscriminate force to defend their property if they do not believe their life is in danger.

Question 18

Recovery of Property

Answer 18

A defendant may use force to recapture chattel if the chattel was taken by force or fraud and the defendant is in fresh pursuit.

Question 19

Defense of Property

Answer 19

A defendant may use reasonable, non-lethal and non-indiscrimiate force to defend their property.

Question 20

Consent

Answer 20

Plaintiff voluntarily exposed themselves to the tort.

Question 21

Rules and Customs

Answer 21

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

Question 22

Discipline

Answer 22

Parents and those acting in a parental role can use reasonable force and restraint against their children

Question 23

Shopkeeper’s Privilege

Answer 23

Merchant is privileged to detain someone they reasonably suspect of theft

Question 24

Bonkowski v. Arlan’s Department Store

Jewelry Thief

Answer 24

• 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.

Question 25

Sindle v. New York City Transit Authority

School Bus

Answer 25

Those in a parental role can use reasonable force to maintain discipline for safety purposes.

Question 26

First Amendment

Answer 26

Constitutionally protected speech is a complete defense to IIED.

Question 27

Public Necessity

Answer 27

In extreme circumstances individual property rights may be superseded by human necessity

Question 28

Assumption of Risk

Answer 28

If a plaintiff takes on a risk before they perform an activity, they are unable to recover from injuries resulting from that activity.

Question 29

Unforeseeable Misuse

Answer 29

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.