Defense & Privileges to Intentional Torts

Question 1

What are the defense & privileges to intentional torts?

Answer 1

POPCANS

Privilege

Defense of Others

Defense of Property

Consent

Authority

Necessity

Self-Defense

Question 2

What do you need to show to have a privilege?

Question 3

What is the privilege of defense of others?

Answer 3

Δ is entitled to defend another person from an attack by the plaintiff to the same extent that the third person would be lawfully entitled to defend himself from plaintiff.

NOTE - some jurisdictions do not allow mistake to be a reason to use this defense

Question 4

What is the privilege of the defense of property?

Answer 4

• Δ may take reasonable steps (force) to defend his property (real or personal)
• Δ may never use deadly force for this
• Δ may use reasonable force to eject after asking to leave
• Defense for personal property** - P can use **recapture of chattel
  
  • one may use reasonable non-deadly force to get back one’s personal property so long as
    
    • a request was made or futitle to return
    • Δ is in hot pursuit

Question 5

What is the defense of consent?

Answer 5

• There will be no recovery for any damages
• It can be expressed or implied or as a matter of law
• Mistake can be become relevant when it goes to the nature of the act

Question 6

What is the rule if P consents to an illegal act?

Question 7

How do you invoke consent?

Answer 7

• must be effective
• must not exceed the scope of the consent

Question 8

What is expressed consent?

Answer 8

• P by words manifest a willingness to be exposed to intentionally tortouous conduct
• must be w/in the scope of the consent

Question 9

What is implied consent?

Answer 9

• where a reasonable person would: where the P through conduct manifest a willingness to be exposed to intentionally tortous conduct
• w/in the scope
• standard - what a Δ would reasonably believe

Question 10

How can consent be found as a matter of law?

Answer 10

1. emergency action is necessary to prevent his death or serious injury;
2. a reasonable person would be expected to consent under the circumstances; and
3. no reason exists to believe that plaintiff would not consent.

Question 11

What are the types of defense of authority?

Answer 11

1. Arrest
2. Shopkeeper’s privilege
3. Discipline

Question 12

How doe sthe authority privilege of arrest apply?

Answer 12

• POLICE OFFICERS
  
  • Felony - PO can arrest a person if PO reasonably believe they committed a felony
  • Misdemeanor - PO can only arrest for misdemeanors that constitute breach of the peace
• PRIVATE INDIVIDUALS
  
  • act @ your own peril
  • if wrong, you are liable for the intentional tort

Question 13

What is the shopkeeper’s privilege?**********

Answer 13

• If a store owner
  
  • has reasonable suspicion that someone has shoplifted
  • use reasonable force
  • detain person for a reasonable time (dfuration) provided they conduct the investigation in a
  • reasonable manner
  • on the premise or immediate vicinity

Question 14

What is the privilege of discipline (authority)?

Answer 14

Parents or teachers may use reasonable force to discipline children

Question 15

What is the privilege of necessity?

Answer 15

• Δ asserts that the lesser evil was to commit the intentional tort
• TWO TYPES
  
  • Public Necessity
    
    • Δ (often gov’t) is acting protect the public rom severe harm
  • Private Necessity********
    
    • Δ commits an intentional tortsaying it was better than what would have been the likely consequences
    • Δ will be liable for damages in most jurisdictions

Question 16

When does the privilege of self-defense arise?

Answer 16

• Δ honestly & reasonably believed that the force used was necessary to avoid imminent harm
• Δ only be reasonable in belief
• force used must be proportionate the the threat
• Retreat
  
  • some jurisdictions require retreat before use of deadly force
  • Never have to retreat from one’s home