Defenses for Intentional Torts Flashcards
Affirmative Defenses
An affirmative defense is a justification of the defendant’s actions. The defendant must admit to doing the tort and then defend his actions
Negative Defenses
A negative defense is when a defendant denies doing the tort and the plaintiff must prove a prima facie case
Self Defense and the Defense of Others
- 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
Self Defense
Bystanders
If bystanders get hurt during self defense, the defendant is not liable
Self Defense
Excessive Force
If a person uses excessive force, he can’t claim self defense
Self Defense
Initial Aggressor
The instigator cannot use self defense unless she tells the other person she is withdrawing and the other person continues the fight
Self Defense
Grimes v. Saban
Supreme Court of Alabama 2015
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.
Defense and Repossession of Property
Katko v. Briney
Supreme Court of Iowa 1971
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.
Defense and Repossession of Property
Brown v. Martinez
Supreme Court of New Mexico 1961
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.
Defense and Repossession of Property
Hot Pursuit
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.
Shopkeeper’s Privilege
Gortarez v. Smitty’s Super Valu, Inc.
Arizona Supreme Court 1984
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.
Shopkeeper’s Privilege
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
Discipline of Children
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
Consent
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.
Inmate’s Consent
Robins v. Harris
Indiana Supreme Court 2002
An inmate’s consent to sexual contact is not a defense. A prison guard had sexual relations with plaintiff.
Minor’s Consent
Minors may consent to age appropriate activities, except for sexual contact
Patient’s Consent
Kaplan v. Mamelak
California Court of Appeals 2008
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.
Patient’s Consent
Duncan v. Scottsdale Medical Imaging, Ltd.
Arizona Supreme Court 2003
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.
When Patient’s Consent May Not be Needed
Doctors may not need consent in emergency situations
If a patience refuses consent because of intoxication, doctors may not need to get consent
Consent and STDs
Johnson v. Jones
Oregon Court of Appeals 2015
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.
Consent
Fraud or Duress
Consent based on fraud or duress is not valid
Consent
Mistake
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.
Public Necessity
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
Public Necessity
Common Law
Surocco v. Geary
Supreme Court of California 1853
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.
Public Necessity
Compensation
Wegner v. Milwaukee Mut. Ins. Co. 1991
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.
Private Necessity
Enter with No Harm
Ploof v. Putnam 1908
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
Private Necessity
Enter Causing Harm
Vincent v. Lake Eire Transportation Co. 1910
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.
