Affirmative Defenses to Intentional Torts Flashcards
1) Consent
a) Plaintiff must have the capacity to give valid consent.
i) Plaintiffs who are incompetent, intoxicated, or very young do not have capacity to give consent.
b) Consent can be express or implied.
i) Express consent
(1) This is when the plaintiff consents to the defendant’s conduct by words. Even if the plaintiff consents by mistake (such as by signing a form that gives consent), thedefendant still has the defense of consent.
ii) Implied consent
(1) This is when the plaintiff consents to the defendant’s conduct by his or her actions. Ask if a defendant would reasonably believe that the plaintiff was consenting.
Bar Exam Tip: if you are unsure if consent was given, look at the situation from the defendant’s perspective: Was the defendant reasonable in interpreting the plaintiff’s objective conduct as granting consent?
(a) Ex.: Plaintiff and defendant are playing football. Defendant tackles plaintiff (which is a normal occurrence in the game) and plaintiff sues for battery. Plaintiff will lose as he impliedly consented to the contact.
(b) Ex.: Defendant is vaccinating passengers as they depart a ship. Plaintiff holds out her arm and defendant gives her a vaccination. Plaintiff sues defendant for battery, arguing that she did not consent to the vaccine. Plaintiff will lose. Even if plaintiff did not subjectively consent to the vaccine, because defendant had a reasonable belief that she was
consenting, he will have the defense of consent.
(c) Ex.: Plaintiff entered a concert hall with metal detectors and a sign
stating that “All entrants are screened and may be searched.” Additionally, Plaintiff saw several patrons being frisked. Plaintiff told her friend she did not want to be frisked. She was frisked. She may have a problem establishing that there was an “offensive” touching, but even if she could, the concert hall could claim consent as a defense.
2) Self-defense and defense of others
a) Defense of self
i) A person who reasonably believes that he is being or is about to be harmed by another may use force that is reasonably necessary to protect against imminent harm.
(1) He may not use force if:
(a) the other person is merely verbally taunting him,
(b) he is acting in retaliation
(c) the threat is not imminent (e.g., he may not punch someone in the face if that
person had threatened to punch him the following day), or
(d) he is the initial aggressor. Note: the initial aggressor does not have the right to use force to defend himself unless the other party escalates the fight or he withdraws.
ii) One may only use the degree of force necessary to protect himself.
(1) Deadly force: majority law states that a person does not have to retreat before using deadly force but may “stand his ground.”
b) Defense of others
i) So long as one has a reasonable belief that another is in harm’s way, one can defend the other using reasonably necessary force.
c) Defense of property
i) A person may take reasonable steps to defend his real and personal property.
(1) A person may, in hot pursuit of another, use reasonable force (not deadly force) to get an item back that was wrongfully taken. First, however, he must demand return of the item if he is likely to recover it that way.
(a) Ex.: Stranger Stan offers to take a picture of Lilly and Billy when they are honeymooning in Hawaii. Lilly and Billy happily hand over their camera to Stranger Stan. Stranger Stan promptly runs away with the camera. Lilly and Billy may chase after him and use minor force to get the camera back.
ii) A person may not use deadly force to protect his property (e.g., one is not permitted to use shotgun traps or deadly animals to defend one’s property!).
3) Necessity
a) Public necessity: Defendant is not liable in tort and will not have to pay any damages if he acts in the public’s interest. A public necessity is an absolute defense.
i) This applies when defendant does something to protect the community as a whole and ends up causing harm to plaintiff’s property.
(1) Ex.: Defendant trespasses on plaintiff’s property to put out a huge fire that threatens the surrounding community. Defendant will not be held liable for trespass.
b) Private necessity: defendant has a limited defense.
i) This applies when the defendant does something to protect an interest of his own and ends up harming the plaintiff’s property.
ii) In this case, the defendant will not be liable for a tort but must still pay for the actual harm he causes. He will not be required to pay nominal or punitive damages. Furthermore, plaintiff cannot expose a defendant to an emergency so long as it continues.
