Defenses to Intentional Torts

Question 1

Consent

Answer 1

A defense to all intentional torts — if P consents to D’s otherwise tortious conduct, D is not liable for that act

• Capacity required — P must be capable of consenting
  
  • E.g., drunks, mentally impaired, and young children are incapable of consenting to tortious conduct

Express consent — P gives D verbal or written consent

• Nullified by duress, fraud, or mistake

Implied consent — D can reasonably infer P’s consent based on custom or P’s observable conduct

• Often arises if P participates in an activity or goes to a place where minor torts are common
  
  • E.g., if P plays tackle football, P has given implied consent to certain forms of battery
• Consent is usually implied for ordinary contacts of daily life
• Facts must indicate that based on P’s objective conduct, D was reasonable in interpreting P’s consent

Scope of consent — D can be held liable for conduct that exceeds the scope of P’s valid consent (express or implied)

Question 2

Self-Defense, Defense of Others, & Defense of Property

Answer 2

Requirements for all defenses:

1. Reasonable belief — D must reasonably believe a tort is being or about to be committed

2. Proper timing — tort must be in progress or imminent

3. Reasonable force — must be proportionate to threat of harm
   * Deadly force — allowed if D reasonably believes a life is in danger (never permitted to protect property alone)

Self-defense

• No duty to retreat
• Only available to initial aggressor if D responds to non-deadly force with deadly force

Defense of others — D must have reasonable belief that the person he is aiding would have the right of self-defense

• D may use as much force as he could have used if the injury was threatened to him (i.e., if he was acting in self-defense)

Defense of property — available to prevent tort against property

• Reasonable force may be used, but force that is deadly or causes serious bodily harm is not allowed for defense of property alone
• Unavailable if initial actor had a privilege to enter land (e.g., recapturing chattel)
• Reasonable mistake only allowed as to whether an intrusion occurred, not whether privilege existed

Question 3

Necessity

Answer 3

A defense to torts against property (trespass to land, trespass to chattel, conversion) in which D damages P’s property in an effort to avoid a greater danger

Requirements:

1. D’s interference with P’s property must be reasonably necessary to avoid an immediate threatened injury
2. Threatened injury must be more serious than the interference undertaken to avert it

Public necessity — absolute defense

• D’s invasion of P’s property must be reasonably necessary to protect the community or a large group of people
• Absolute defense — P cannot recover any damages

Private necessity — limited defense

• D invades P’s property to protect an individual or small group
• Limited defense — P can recover actual damages, but not punitive or nominal damages (unless D’s act benefitted P)

Property owner liability — if an owner repels or expels a trespasser who interfered with or invaded owner’s property out of a valid necessity, owner will be liable for any damage caused

Question 4

Recapture of Chattels

Answer 4

A defense to trespass; D may use peaceful means to recover possession of chattel taken unlawfully

Limitations & requirements:

• 1. D-owner must make a timely demand for return of chattel*
• Exception— not required if making demand would be futile or dangerous
• 2. D-owner may recapture from original wrongdoer or a third person who knows the chattel was wrongfully obtained*
• Recapture is not available if chattel is in the hands of an innocent party
• 3. Privilege to enter — depends on who possesses property:*
• Wrongdoer’s property — reasonable time and manner
  
  • D-owner may enter at a reasonable time to reclaim chattel in a reasonable manner
• Innocent person’s property — notice required
  
  • D-owner must first give notice to landowner
    
    • If landowner refuses entry, D may enter at a reasonable time and in a peaceful manner
  • If D’s chattel is on another’s property through D’s fault, D does not have a privilege to enter property
• 4. Use of force — reasonable force may be used to recapture chattel if in hot pursuit of one who has wrongfully obtained possession*
• No deadly force or serious bodily harm permitted

Question 5

The privilege to use reasonable force in the defense of others exists when the defendant reasonably believes that:

Answer 5

1) the plaintiff is about to inflict harmful or offensive contact upon a third party
2) the third party has the right of self-defense and
3) the defendant’s action is necessary to protect the third party.

The force used must be proportionate to the anticipated harm, so the defendant can threaten or use deadly force to defend the third party when the defendant reasonably believes that the plaintiff will inflict imminent death or serious bodily injury on the third party.