Chapter 3 - Privileges (Defenses)

Question 1

In general, who is liable for Intentional Physical Harm?

Answer 1

An actor who intentionally causes physical harm. R3(5) of Torts

Question 2

Describe the general variance of consent.

Answer 2

Consent is contextualized and depends on cultural norms.

Question 3

Is consent valid if it was induced by fraud?

Answer 3

No (De May v. Roberts)

Question 4

What is implied consent?

Answer 4

The determination of what a reasonable person would infer. Think bumping into people in a crowd etc. (O’brien v. Cunard)

Question 5

List an example of consent implied by law

Answer 5

Emergency medical situations

Question 6

When is a self-defense privilege available?

Answer 6

(1) When a threat of battery exists
(2) When the defendant reasonably believes that force is necessary to protect himself against battery even if there is not necessity.

Question 7

What two situations negate the self-defense privilege?

Answer 7

(1) Retaliation - The privilege expires when battery is no longer threatened
(2) Provocation - Insults, verbal threats, and scornful language do not justify self defense

Question 8

When may a deadly weapon be used in the self-defense privilege?

Answer 8

A defendant must have reasonable apprehension of loss of life or great bodily injury

Question 9

For the self-defense privilege, what is the general consensus in the courts for retreating before the use of deadly force?

Answer 9

The courts agree that a person may stand their ground and use any force short of that likely to cause serious injury

*Majority - defendant can stand his ground and use deadly force, and kill without having to retreat first
*Minority - victim may use deadly force if there is the slightest reasonable doubt that the retreat can be safely made

Question 10

If a person acts in self-defense and injures a third party is he/she liable?

Answer 10

No

Question 11

In the Defense of Others privilege, how much privilege would the third party have when intervening of behalf of another?

Answer 11

third party must use reasonable force. He/She is only privileged to the extent of the person he/she was defending.

Question 12

In the Defense of Property Privilege, how much force may be used?

Answer 12

An owner of a property has no privilege to use force to harm another in order to protect the property (Katko v. Briney) unless a request for the invader to depart has been made.

Question 13

In the Recover of Property Privilege, can an owner dispossessed of a chattel use force to recapture it?

Answer 13

Yes, unless the owner originally obtained it by force or fraud.

Question 14

In the Recover of Property Privilege, what are the limitations to recovery?

Answer 14

A prompt discovery of the dispossession and persistent efforts to recover the chattel must be made
and
the Privilege is limited to force reasonable under the circumstances

Question 15

What are the elements of the shopkeeper dilemma

Answer 15

1. shopkeeper must have reasonable belief the property has been dispossessed
2. and shopkeeper must investigate in a reasonable manner within a reasonable period of time

(Bonkowski v. Arlan’s Department Store)

Question 16

What privilege has situations commonly referred to as the “acts of God”

Answer 16

Necessity

Question 17

What are the two types of necessity?

Answer 17

Public and Private

Question 18

What is the difference between public and private necessity?

Answer 18

Public necessity creates no liability when the act is necessary for the public good (Surrocco v. Geary) however, private necessity creates liability because a private individual intentionally acts in their own personal interest (Vincent v. Lake Erie Trans. Co.)

Question 19

In the Authority of Law Privilege, when is an officer held liable under an arrest warrant?

Answer 19

Only if he acts improperly by using excessive force.

Question 20

In the Authority of Law Privilege, when may an officer make an arrest without a warrant?

Answer 20

• to prevent a felony or brach of the peace
• if he has information that affords reasonable grounds for thinking that a felony has been committed and he has the right person
• If a breach of peace was committed in the officers presence
• Some jurisdictions allow the arrest for misdemeanors if the act was committed in the presence of the officer

Question 21

When can an officer we held liable for a lawful arrest?

Answer 21

When using excessive force.

Question 22

In the Authority of Law privilege, when can a citizen make an arrest without a warrant?

Answer 22

• to prevent a felony or breach of the peach
• if a breach of peace was committed in the citizens presence

Question 23

What defense is very amorphous? and what questions are taken into consideration for this defense?

Answer 23

Justification defense

Were the actions reasonable?
Was there a duty to protect for injury or property?

(Sindle v. New York CIty Transit Authority)