Defenses and Privileges to Intentional Torts Flashcards
What are the defenses to intentional torts?
Privilege
Defense of others
Property (can use reasonable force)
Consent
Authority
Necessity
Self-Defense
Defense of others Rule
D is entitled to defend another from an attack by P to the same extent that a third person would be lawfully entitled to defend himself, but D is liable for a mistake.
Defense of Property rule
o D can use reasonable force to defend real or personal property.
o May never use deadly force to protect personal or real property.
▪ Look for situations that start with defense of property and escalate to become defense of self/others.
o May use reasonable force to eject a trespasser after asking him to leave.
Recapture of Chattels
: Reasonable, non-deadly force may be used to get back own personal property if:
▪ the person seeking to recapture requests its return first or a request would be futile; and
▪ D is in hot pursuit.
EXAMPLE: Dale took Paul’s jacket. Paul saw it and asked for it back. Dale takes off running with the jacket. Paul can chase Dale and use reasonable force to get it back.
Defense of Consent
Usually defense for battery/assault
Defense of Consent: Express
P affirmatively communicates permission for D to act»_space; explicit statement orally or in writing.
▪ Limit – Reasonability; D’s actions cannot exceed the scope of consent.
Defense of Consent: Implied
A reasonable person interprets P’s conduct as evidencing permission to act.»_space;> D’s reasonable interpretation of p’s objective conduct (body language consent)
(ex) p goes somewhere or does something where relatively minor invasions of person/property is normal/expected
e.g. team sports. Not just contact laid out in the game, but contact that happens as a result, like fouls.
What can negate consent?
MISTAKE, when it goes to the consequences or nature of the act.
EXAMPLE: Dale and Penny are about to have sex when Penny asks if Dale has any sexually transmitted diseases. Dale knows that he has herpes, but he lies and denies it and then sleeps with Penny without using any protection. Penny gets herpes and sues Dale. Penny will not be deemed to have consented because of Dale’s deception.
EXAMPLE: Vivian is a sex worker who engages in sexual relations with Mark. Mark pays Vivian with a counterfeit bill. In this case, there is still consent because the counterfeit bill is a collateral matter.
Defense of Authority: Arrest - Felony
Police officer can arrest if reasonably believes D committed a felony.
Defense of Authority: Arrest - Misdemeanor
Police officer can arrest for misdemeanor if D’s action constituted a breach of the peace.
Defense of Authority: Arrest - Citizen’s Arrest
Private person acts at his/her own peril – if wrong, liable for tort.
Defense of Authority: Shopkeeper’s Privilege
▪ Not liable for false imprisonment if had a reasonable suspicion that P stole.
▪ Can only detain for a reasonable period and in a reasonable manner on the premises/immediate vicinity.
Defense of Authority: Discipline
Parent/teacher may use reasonable force to discipline a child.
Defense of Necessity
D is permitted to injure P’s property if it is reasonably necessary to avoid a substantially greater harm to the public, self, or D’s property.
Defense of Necessity: Public
D is acting to protect the public at-large from severe harm.
EXAMPLE: An earthquake starts a fire in the city. Della blows up Peter’s home to stop the spread of the fire. Peter sues Della for conversion and trespass to land. Peter would lose. The greater good was trying to stop the fire.
Defense of Necessity: Private
D commits an intentional tort to protect himself (better tort was committed than risk the consequence). If a reasonable person would believe the action taken was necessary to avoid the harm, D is privileged even if D made an honest mistake in that regard.
▪ D is not liable for the tort, but will have to pay DAMAGES.
(EX) Dev is boating on a lake when his motor boat springs a leak. Concerned that he will sink and drown, Dev ties his boat to Paulo’s dock and walks across Paulo’s land in search of help. The boat damages the dock while moored there. Defendant can assert necessity privilege. Because harm occurred during the exercise, defendant will have to pay for harm to the dock.
Defense of Self-Defense Rule
D honestly and reasonably believes that D used reasonable force to prevent P from engaging in an imminent and unprivileged attack.
▪ D only needs to be reasonable and respond with proportionate force.
▪ Once the threat is over, the defense will not work. There must be an imminent existing threat.
▪ Deadly force cannot be used against non-deadly threat.
EXAMPLE: Donna and Paula exchanged harsh words. Paula says “wait until the next time I see you alone. I am going to teach you a lesson you will never forget.” Donna is alone in a parking lot that night when she sees Paula walking towards her with something in her hand. Donna picks up a stone, throws it, and hits Paula, causing injury. Paula sues for battery. Donna intended contact, but argues self-defense based on the earlier threat. Even if Paula was only carrying a fishing pole (as an apology gift), if Donna believed she was threatened, she can respond accordingly.
VA Self-Defense - Retreat
Retreat is not required before using self-defense in VA EXCEPT: if you were the aggressor
Self-Defense at home in VA
Never have to retreat from own home but use of force must not be more than necessary
- owner cannot assault mere trespasser w/ deadly weapon
VA justifiable self-defense
D not at fault - no need to retreat
VA excusable self-defense
D at fault to some extent - but trivial enough to be excused under the circumstances (ie. when D started fight but abandoned and retreated)
VA Shopkeepers Privilege
not civilly liable for detention up to one hour nor slander, malicious prosecution, false imprisonment, false arrest, or assault and battery
alarm going off when person exits store is enough BUT also need clear/visible notices indicting presence of anti-shoplifting devices
VA Intra-family immunities
VA has abolished both interspousal immunity and parental immunity in cases that are:
- covered by liability insurance and
- in cases of willful harm
VA Privilege to Administer Corporal Punishment at school
no teacher/school employee may subject student to corporal punishment
They can use:
-minor, reasonable physical contact designed to maintain order and control; OR
-reasonable and necessary force to:
- quell disturbance
- prevent student from inflicting physical harm on himself
- for self-defense or defense of others
- get possession of weapon or other dangerous
objects/controlled substances on person of student
VA Privilege to Administer Corporal Punishment - Parents
may administer such reasonable punishment as necessary to correct faults in a growing child w/in moderation judged in totality of the circumstances
VA Privilege to Administer Corporal Punishment - Prisons
Prohibited by statute
VA Charitable Immunity Defense - w/o compensation
directors, officers, trustees and others who serve a tax exempt organization w/o compensation - immune from civil liability for acts taken in capacity w/ organization
VA Charitable Immunity Defense - w/ compensation
If receive compensation - may be held liable only to extent of amount of compensation received w/in the 12 months preceding the act/omission
To determine consent, you first must determine…
Whether the plaintiff had legal capacity to consent.
e.g. mentally disabled people, children, drunk/high people
Capacity is a _______ ______, not all or nothing.
Sliding scale. Scope of capacity dependent on person’s level of cognizance
Who determines whether D reasonably interpreted P’s actions as implied consent?
Judgement of reasonableness is in hands of jury
What is the exception to the consent defense?
Consent obtained through fraud or duress is not valid.
Usually comes up in express consent defenses.
Consent is limited by . . .
Scope.
e.g. playing basketball and physically assaulted by player.
What are the three protective privileges?
Self defense, defense of others, or defense of property.
For the protective privileges to apply, there must be an…
imminent or in progress threat.
What is an imminent or in progress threat?
(1) Can’t hit someone for telling you they’re gonna hit you tomorrow
(2) If someone hits you and turns away, you can’t go after them and hit them back.
(3) But if someone hits you, tells you they’re done, and hits you again, reasonable to assume threat imminent. Hitter must have disengaged
To successfully assert a protective privilege, you need a reasonable belief that…
the threat is genuine
If you are wrong, and the threat was not genuine…
You can still assert a protective privilege defense, so long as your belief was reasonable.
The necessity defenses only apply to…
trespass to land, chattels, and conversion.
Private Necessity Defense - D is liable for?
actual damages caused to plaintiff’s property
NOT LIABLE for nominal or punitive damages
How long does Private Necessity Defense last?
as long as the emergency persists»_space;
Property owner must allow you to remain as long as the emergency persists
