Affirmative Defenses to Intentional Torts

Question 1

Consent

what are the 3 types

Answer 1

1. Actual consent
2. Apparent consent
3. Presumed consent

Question 2

Actual Consent rule

scope of consent

Answer 2

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.

Question 3

Actual consent

dealing with sports

Answer 3

 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

Question 4

Actual Consent

Consent requires the capacity to do so…but…

Answer 4

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.

Question 5

Actual consent

dealing with inferred actual consent rule

Question 6

Presumed Consent rule

Answer 6

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

Question 7

Presumsed Consent

Emergency Doctrine EXCEPTION

Answer 7

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

Question 8

Presumed Consent

Religious Exception to Emergency Doctrine Exception

Answer 8

Religious objections can cease the emergency doctrine by the P himself or by parents over the child

Question 9

Presumed Consent

Doctor overruling Exception to Emergency Doctrine Exception

Answer 9

• 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

Question 10

Presumed Consent

Accidental conduct on P by Physician

Answer 10

o Even if the conduct is beneficial to P–>battery is still committed bc there was no consent

Question 11

Presumed Consent

conditions paced

Answer 11

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

Question 12

Presumed consent

more on conditions placed dealing with refusing treatment

Answer 12

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

Question 13

Self Defense (SD)

general rules for SD

Answer 13

 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

Question 14

SD

Deadly Force majority approach: Stand your Ground

Answer 14

• 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

Question 15

SD

Deadly Force minority approach: Castle Doctrine

Answer 15

 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

Question 16

Defense of Others

DofO

Majority approach: Reasonable Belief

Answer 16

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

Question 17

DofO

Other Approach: Step in the shoes

Answer 17

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

Question 18

Defense of Property (DofP)

rule

Answer 18

The value of human life outweighs the possessor’s property interest in excluding others

Question 19

DofO

dealing with unlawful intrusion situations

Answer 19

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

Question 20

DofP

Right to Eject Limitation

Answer 20

 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.

Question 21

DofP

Shopkeeper’s Privilege rule

Answer 21

• 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

Question 22

DofP

Defense of Personal Property rule

Answer 22

• Dispossessed owner of his personal property may use reasonable force to recapture their property while in fresh pursuit

Question 23

DofP

Defense of personal property

fresh pursuit sub element

Answer 23

is limited to prompt discovery of the dispossession, and prompt and persistent efforts to recover the chattel.

Question 24

DofP

Defense of personal property

Reasonable force sub element

Answer 24

 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.

Question 25

Necessity defense rule

Answer 25

 Necessity requires some type of extreme circumstances or emergency. The circumstances cannot be a mere inconvenience

Question 26

Necessity

Public Necessity rule

Answer 26

• If you are acting in the public interest to prevent immediate harm to the public that interferes with P –> you are privileged

Question 27

Necessity

Private Necessity rule

Answer 27

A party who damages the property of another while acting out of self interest must compensate the property owner for the resulting damage.

Question 28

Necessity

Private Necessity on Majority approach to compensating…

Answer 28

 defendant’s obligation must compensate plaintiff even though the intentional entry onto land was privileged and thus not tortious

Question 29

Authority of Law rule

Answer 29

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.

Question 30

Discipline rule

Answer 30

 Parents and others in position of like parents can discipline children with reasonable discipline
 Statutes can limit authority on discipline