Defenses for Intentional Torts

Question 1

​Affirmative Defenses ​

Answer 1

An affirmative defense is a justification of the defendant’s actions. The defendant must admit to doing the tort and then defend his actions

Question 2

Negative Defenses

Answer 2

A negative defense is when a defendant denies doing the tort and the plaintiff must prove a prima facie case

Question 3

Self Defense and the Defense of Others

Answer 3

• If a person has a reasonable belief of use or imminent use of unlawful physical force by the other person, he may use the necessity amount of force for self defense
• Some states require the duty to retreat before deathly force is used if the person isn’t home
• A person can only use deadly force to prevent death or serious bodily harm
• Most states say you can defend others as you would yourself

Question 4

Self Defense

Bystanders

Answer 4

If bystanders get hurt during self defense, the defendant is not liable

Question 5

Self Defense

Excessive Force

Answer 5

If a person uses excessive force, he can’t claim self defense

Question 6

Self Defense

Initial Aggressor

Answer 6

The instigator cannot use self defense unless she tells the other person she is withdrawing and the other person continues the fight

Question 7

Self Defense

Grimes v. Saban

Supreme Court of Alabama 2015

Answer 7

The privilege of self defense is based on the actions of the defendant. When plaintiff let defendant in her room, defendant came right up to her and yelled in her face. Plaintiff pushed defendant away because she believed defendant planned to physically harm her.

Question 8

Defense and Repossession of Property

Katko v. Briney

Supreme Court of Iowa 1971

Answer 8

A possessor of property can use reasonable force to protect his property, but a property possessor may not willfully and intentionally use force that will cause major bodily harm or death to protect her property, except when there is also a threat to personal safety that justifies self defense. Defendant set up a spring gun in their unoccupied house. Plaintiff entered the house thinking it was abandoned and her leg was seriously injured.

Question 9

Defense and Repossession of Property

Brown v. Martinez

Supreme Court of New Mexico 1961

Answer 9

A person defending his or her property is not justified in using force calculated to cause death or serious bodily injury if only the property is threatened. Plaintiff entered Defendant’s land to steal watermelons. Defendant shot his rifle for a warning shot and unintentionally shot plaintiff.

Question 10

Defense and Repossession of Property

Hot Pursuit

Answer 10

In general, a property owner can’t use self help to reclaim her property; she must go through the courts. However, if she’s in fresh pursuit, she may use a reasonable amount of force to defend her property.

Question 11

Shopkeeper’s Privilege

Gortarez v. Smitty’s Super Valu, Inc.

Arizona Supreme Court 1984

Answer 11

Shopkeepers may detain a customer suspected of shoplifting in a reasonable manner (for questioning or summoning the police) for a reasonable amount of time if she has reasonable cause. Defendants accused plaintiffs of shoplifting, search one without telling him why, and put the other in a choke hold, injuring him. Plaintiffs didn’t shoplift. Court said defendants did not detain plaintiffs in a reasonable manner or for a reasonable cause.

Question 12

Shopkeeper’s Privilege

Answer 12

Most states allow shopkeepers to be mistaken about the alleged shoplifter, but some require absolute certainty

A person who causes someone to become falsely imprisoned may be liable for it unless she acted in good faith

Question 13

Discipline of Children

Answer 13

Parents may use reasonable force to discipline and confine their children as long as the force is not abusive

If someone other than the parent is in charge of the children, that person has the right to disciple and confine them, but possibly not to the extent that the parent has

Question 14

Consent

Answer 14

Consent must be informed, voluntary and given by someone with the legal capacity to consent. It may be express or implied and can be revoked at any time.

Question 15

Inmate’s Consent

Robins v. Harris

Indiana Supreme Court 2002

Answer 15

An inmate’s consent to sexual contact is not a defense. A prison guard had sexual relations with plaintiff.

Question 16

Minor’s Consent

Answer 16

Minors may consent to age appropriate activities, except for sexual contact

Question 17

Patient’s Consent

Kaplan v. Mamelak

California Court of Appeals 2008

Answer 17

While a patient gives implied consent to touching resulting from complications in an operation, it is battery if a surgeon operates on a significantly different body part than the patient consented to. Defendant operated on the wrong hermiated disk.

Question 18

Patient’s Consent

Duncan v. Scottsdale Medical Imaging, Ltd.

Arizona Supreme Court 2003

Answer 18

It is medical battery if a patient consents to a specific medication and is given its generic form. Plaintiff agreed to take morphine or demerol, was given a synthetic form and severed severe allergic reactons.

Question 19

When Patient’s Consent May Not be Needed

Answer 19

Doctors may not need consent in emergency situations

If a patience refuses consent because of intoxication, doctors may not need to get consent

Question 20

Consent and STDs

Johnson v. Jones

Oregon Court of Appeals 2015

Answer 20

One who knows he has a venereal disease, and knows that his sexual partner does not know of his infection, commits a battery by having sexual intercourse. Defendant knew or should have known he had a high risk of STDs, didn’t tell Plaintiff or use a condom. Plaintiff got HIV.

Question 21

Consent

Fraud or Duress

Answer 21

Consent based on fraud or duress is not valid

Question 22

Consent

Mistake

Answer 22

To avoid the effect of a manifested consent, the plaintiff’s mistake must be about the nature and quality of the invasion intended by the conduct.

Question 23

Public Necessity

Answer 23

If there’s an imminent danger where public needs are involved, the defendant had a reasonable belief that the action was needed, and the action was reasonable, public necessity can protect against harm done

Question 24

Public Necessity

Common Law

Surocco v. Geary

Supreme Court of California 1853

Answer 24

A person cannot be held liable for destroying property in a good faith attempt that is necessary to prevent a disaster. There was a fire and defendant mayor ordered plaintiff’s house destroyed to stop the fire.

Question 25

Public Necessity

Compensation

Wegner v. Milwaukee Mut. Ins. Co. 1991

Answer 25

Some states hold that if the government destroys personal property because of a public necessity, the state must compensate the person. The police throww flashbang grenades into a house while tryng to catch a criminal, and the state law required that the owner be paid for the damage.

Question 26

Private Necessity

Enter with No Harm

Ploof v. Putnam 1908

Answer 26

A person may enter another’s land without trespassing if he does so out of necessity – to save his life or the lives of others. Plaintiff and his family were sailing in unsafe waters and so moored the boat at defendant’s dock. Defendant untied the boat claiming trespass and its contents was distroyed and people were injured

Question 27

Private Necessity

Enter Causing Harm

Vincent v. Lake Eire Transportation Co. 1910

Answer 27

A person may use the private necessity defense when he uses another’s property to protect his own, but he will be liable for any damage. Defendant anchored its boat to plaintiff’s dock and the severe wind and waves caused defendant’s boat to damage plaintiff’s property.