Affirmative Defenses to Intentional Torts

Question 1

Defenses to Intentional Torts

Answer 1

1. Consent
2. Self-Defense
3. Defense of Others
4. Defense of Property
5. Necessity

Question 2

Consent is a defense to:

Answer 2

Every intentional tort

Question 3

Capacity to Consent

Answer 3

• Those without capacity are incapable of consent
  
  • incompetents
  • drunken person
  • very young children
• A child can only consent to age appropriate things
  • Example: wrestling

Question 4

Scope of Consent

Answer 4

• All consent has a scope - if you exceed scope, you forfeit the defense
• Scope is not clearly defined but relies on common sense - reasonableness standard
  
  • Ex: Don’t expect to get shot on the football field

Question 5

Types of Consent

Answer 5

1. Express
2. Implied

Question 6

Express Consent

Answer 6

Express consent is invalid if obtained through fraud or duress

Question 7

Implied Consent

Answer 7

1. Customary practice
   
   • If a P engages in an activity or goes to a place where certain invasions are routine, then P forfeits his right to sue
     
     • Ex: Sports
2. Or Defendant’s reasonable interpretation of Ps objective conduct and surrounding circumstances
   
   • This is body language and surrounding circumstances consent
     
     • Ex: 2 people dating and D decides to kiss or caress the P
   • Defendant has to be behaving reasonably
     • Just having a drink with someone does not mean sexual intercourse is going to happen (its called rape)
3. Consent Implied by Law
   
   • when action is necessary to save a persons life or some important interest or property

Question 8

When do Self-Defense, Defense of Others, and Defense of Property Apply

Answer 8

All 3 defenses arise when D is doing something of a threatening nature

Question 9

What does P have to show to prove all 3 of these defenses: Self D, Defense of Others, Defense of Property

Answer 9

1. P has to prove proper timing
2. P has to have a reasonable belief the threat is genuine
3. Force P used is proportional to the threat

Question 10

Proper Timing for Self D, Defense of Others, Defense of Property

Answer 10

Threat must be in progress or imminent

• Not allowed to act pre-emptively
• Can’t act after the threat is over

Question 11

Reasonable Belief Threat is Genuine for Self D, Defense of Others, Defense of Property

Answer 11

• You are reasonable even if you are making a reasonable mistake
• Shopkeeper’s Privilege falls under here
• Shopkeeper has the privilege to investigate if he reasonably believes his property is being used

Question 12

Proportional Force for Self D, Defense of Others, Defense of Property

Answer 12

• Excessive force is a tort
• If you confront a life threatening situation, you can use deadly force if necessary
• Deadly force is always excessive to protect property
• Cannot set traps or spring guns

Question 13

Self-Defense

Answer 13

When a person reasonably believes that she is being or is about to be attacked, she ,may use such force as is reasonably necessary to protect against injury

Question 14

Duty to Retreat under Self-Defense

Answer 14

• majoirty rule is that there is no duty to retreat
• modern trend is to impose a duty to retreat before using deadly force if this can be done safely, unless the actor is in her home

Question 15

Self-Defense for Initial Aggressor

Answer 15

Self-Defense is not available to the intial aggressor unless the other party responds to the aggressor’s nondeadly force by using deadly force

Question 16

Defense of Others

Answer 16

One may use force to defend another when the actor reasonably believes that the other person could have used force to defend himself

Question 17

Defense of Property

Answer 17

• One may use reasonable force to prevent the commission of a tort against her real or personal property
• A request to desist or leave must first be made unless it clearly would be futile or dangerous
• The defense does not apply once the tort has committed; however one may use force in Hot Pursuit of another who has tortiously dispossesed the owner of her chattels because the tort is viewed as still being committed

Question 18

Is Mistake Allowed in Defense of Property?

Answer 18

• A reasonable mistake is allowed as to whether an intrusion has occurred or whether a request to desist is required.
• A mistake is not allowed as to whether the entrant has privilege to the property that supersedes the defense of property right, unless that entrant conducts the entry so as to lead the defendant to reasonably believe it is not privileged.

Question 19

How much force may be used to defend property?

Answer 19

Reasonable force may be used. However, one may not use force causing death or serious bodily harm unless the invasion of property also entails a serious threat of bodily harm.

Question 20

Reentry to Land

Answer 20

• At common law, one could use force to reenter land only when the other came into possession tortuously
• Under Modern Law, there are summary procedures such as ejectment for recovering possession to real property. Hence the resort to self-help is no longer allowed.

Question 21

When is recapture of chattels allowed?

Answer 21

• Timely demand is required unless clearly futile and dangerous
• Can only recover from the wrongdoer or from a 3rd person who knew or should have known the chattel was taken tortuously obtained.
• One may not use force to recover from an innocent party

Question 22

Entry onto Land to Remove Chattel Rules

Answer 22

1. On wrongdoer’s land
   
   • the owner is privilaged to enter onto the land and reclaim them at a reasonable time and in a reasonable manner, after first making a demand for their return
2. On land of Innocent Party
   
   • the owner is privilaged to enter onto the land and reclaim them at a reasonable time and in a reasonable manner if the landowner has been given notice of the presence of the chattel and refuses to return it
   • chattel owner will be liable for any actual damage caused by the entry
3. On Land through Owner’s Fault
   
   • If the chattel ends up on landowner’s land there is no privilege to enter to recapture. Must go about the legal process

Question 23

Necessity

Answer 23

Only a defense to the 3 property torts

2 separate defenses

1. Private Necessity
2. Public Necessity

Question 24

Public Necessity

Answer 24

• D commits a property tort in an emergency to protect the community as a whole or a significant group of people
  
  • We do not want the hero to hesitate over potential liability for saving lots of lives
• Absolute defense

Question 25

Private Necessity

Answer 25

D commits property tort in an emergency to protect an interest of his own

Limited Defense

Question 26

Consequences for Limited Necessity

Answer 26

1. D will be liable for compensatory damages to P property owner
2. However, the private necessity D is not liable for nominal or punitive damages
   
   • Nominal damages would be damages for trespass (not actual damages like to repair something broken)
3. As long the emergency persists, the P property owner may not throw the D off his land, rather he must allow the D to remain in his safety
   
   • Right to Sanctuary in an emergency
   • Defense of property does not apply here