Affirmative Defenses to Intentional Torts Flashcards
Consent
what are the 3 types
- Actual consent
- Apparent consent
- Presumed consent
Actual Consent rule
scope of consent
o A person’s actual consent extends to conduct of the actor that is not substantially different in nature from the conduct that the person is willing to permit.
Actual consent
dealing with sports
certain types of conduct is expected, and then there’s other conduct that isn’t expected
Reasonable conduct within a game
* Ask whether the conduct part of the game?–> if so its within the scope of consent
Actual Consent
Consent requires the capacity to do so…but…
o Incapacity might be due to a plaintiff’s youth, intellectual disability, or mental illness, or it might be due to a temporary condition such as inebriation.
The standard in is generally whether the “person is capable of appreciating the nature, extent, and potential consequences of the conduct consented to.
Actual consent
dealing with inferred actual consent rule
Presumed Consent rule
You must ask yourself “would a reasonable person in the defendant’s position believe that the plaintiff consented to D’s conduct?”
o Ex. using this in a fact pattern where P is silent
Presumsed Consent
Emergency Doctrine EXCEPTION
o It’s the policy of doctor being there immediately or P’s life is in jeopardy
o 1. P is unconscious
o 2. There is an emergency of life or death where immediate action is necessary
o 3. AND physician has no reason to believe that had this person been conscious, they would have objected
Presumed Consent
Religious Exception to Emergency Doctrine Exception
Religious objections can cease the emergency doctrine by the P himself or by parents over the child
Presumed Consent
Doctor overruling Exception to Emergency Doctrine Exception
- If the doctor can overrule a parent’s denial of life-or-death emergency to operation of a minor child–> the doctor needs an immediate court order
Presumed Consent
Accidental conduct on P by Physician
o Even if the conduct is beneficial to P–>battery is still committed bc there was no consent
Presumed Consent
conditions paced
o Anyone may put conditions on consent
o AND every adult of sound mind has the right to determine what shall be done with her body
Presumed consent
more on conditions placed dealing with refusing treatment
o A competent, informed adult may refuse medical treatment that is necessary to preserve life as long as right to refuse treatment is not limited to those who are suffering from terminal condition
Self Defense (SD)
general rules for SD
Generally, you must meet initial aggressor’s force
* Your force must be proportionate to the aggressor’s force
Generally, you can use deadly force when you reasonably believe you are threatened with deadly force
* You can make a mistake as long you reasonably believed you were threatened with deadly force
Non deadly force
* There is never a duty to retreat
SD
Deadly Force majority approach: Stand your Ground
- You can stand your ground in a place you have the right to be in
- AND you can use deadly force when met with deadly force
SD
Deadly Force minority approach: Castle Doctrine
You must retreat rather than using deadly force even if you can do so safely unless you are in your own home
* If you are in your own home–> you do not have to retreat, and you can use proportional force
o The law presumes that if you are threatened with deadly force by aggressor–> you can use deadly force
* This doctrine typically comes into play is when ppl break and enter into a home at night
Defense of Others
DofO
Majority approach: Reasonable Belief
o If you have reasonable belief that you’re attacking the aggressor and use reasonable force–> you’re off the hook
So here you are allowed to make a reasonable mistake
DofO
Other Approach: Step in the shoes
o if you place yourself in the shoes of the person being attacked by aggressor–> and attacked person is using self defense –>then you can use Defense of others against the aggressor
Defense of Property (DofP)
rule
The value of human life outweighs the possessor’s property interest in excluding others
DofO
dealing with unlawful intrusion situations
If the inruder in some ay misled the possessor as to his ID or authorization–> possessor who used force to defend property in a reasonably mistaken belief is protected
DofP
Right to Eject Limitation
The limitations on the possessor’s privilege may also restrict the power to eject the plaintiff from the possessor’s property.
* Ex. Thus, a teenager stealing a ride on a railroad train cannot be thrown off at thirty miles an hour.
DofP
Shopkeeper’s Privilege rule
- A merchant has the privilege to detain a person within the immediate vicinity of his premises for reasonable investigation if he believes the person has unlawfully taken chattel.
o To detain one that is alleged to have stolen an item at premises–> your detainment of them extends to the immediate vicinity of the store
That is the parking lot
DofP
Defense of Personal Property rule
- Dispossessed owner of his personal property may use reasonable force to recapture their property while in fresh pursuit
DofP
Defense of personal property
fresh pursuit sub element
is limited to prompt discovery of the dispossession, and prompt and persistent efforts to recover the chattel.
DofP
Defense of personal property
Reasonable force sub element
The privilege is limited to force reasonable under the circumstances
However, it is not reasonable to use force calculated to inflict serious bodily harm to protect a property interest.
Necessity defense rule
Necessity requires some type of extreme circumstances or emergency. The circumstances cannot be a mere inconvenience
Necessity
Public Necessity rule
- If you are acting in the public interest to prevent immediate harm to the public that interferes with P –> you are privileged
Necessity
Private Necessity rule
A party who damages the property of another while acting out of self interest must compensate the property owner for the resulting damage.
Necessity
Private Necessity on Majority approach to compensating…
defendant’s obligation must compensate plaintiff even though the intentional entry onto land was privileged and thus not tortious
Authority of Law rule
Police officers, military personnel, prison officials, regulatory inspectors, or officials at mental health facilities may act under authority of law, engaging in conduct that otherwise would be tortious.
Discipline rule
Parents and others in position of like parents can discipline children with reasonable discipline
Statutes can limit authority on discipline
