Defenses to Intentional Torts

Question 1

Why do we have defenses to intentional torts

Answer 1

When faced with a civil action involving a tort, a D may assert various defenses to escape liability.

Question 2

List (3)

What are the main defenses

Answer 2

1. Consent
2. Privileges
3. Necessity

Question 3

what are the consent defenses

Answer 3

1. express/actual consent
2. implied consent

Question 4

what is the consent defense

Answer 4

the person affected by the tort (P) gave consent to the tortfeasor (D) to engage in the otherwise wrongful conduct

Question 5

Two questions to ask about consent

Answer 5

1. was there valid consent
2. did D stay within boundaries of consent

Question 6

express consent

Answer 6

P expressly consents to D’s conduct

Question 7

list (3)

Types of express consent

Answer 7

1. mistake
2. fraud
3. duress

Question 8

consent by mistake

Answer 8

P expressly consents by mistake to D’s conduct

UNLESS

D caused mistake or knows of mistake and takes advantage, then defense won’t apply

Question 9

consent by fraud

Answer 9

1. Defense applies - expressly given consent induced by fraud as to a collateral matter
2. Defense does not apply - expressly given consent induced by fraud as to an essential matter

Question 10

consent by duress

Answer 10

Consent obtained by duress invalid unless duress is for a:

1. future action
2. future economic deprivation, in which case it does not constitute legal duress sufficient enough to invalidate express consent

Question 11

list (2)

Types of implied consent

Answer 11

1. apparent consent
2. consent implied by law

Question 12

implied consent

Apparent consent

Answer 12

Consent which a reasonable person would infer from the P’s conduct

example: reasonable body language consent, P extends hand and says “nice to meet you”

Question 13

apparent consent inferred from social custom and usage

Answer 13

Example: tackling someone in football is implied consent

BUT NOTE: that such consent cannot exceed what is customary. So, in a football game, there is implied consent for tackling but no implied consent for violence clearly outside the scope of the game even if it is during the game. One player shooting another player during the football game would be outside the implied consent for violence in a football game and so, implied consent would not be a defense for such an action

Question 14

Consent implied by law

Answer 14

Arises when action necessary to save person’s life or property interest

Example: firefighters enter your land to extinguish fire without consent but not trespassing on to your land because entering to save your house

Question 15

list (3)

Exceptions to express or implied consent

Answer 15

1. Individuals without capacity cannot consent
   
   1. incompetents, infancy, inebriation (I³)
      
      1. NOTE: being part of the I³ is NOT a defense to committing a tort
2. Individuals with limited capacity can consent but only to things within their capacity
3. Criminal acts
   
   1. Majority - cannot consent, so no defense
   2. Minority + Restatement - defense valid
      
      1. consent to an act that is a breach of the peace is not effective, meaning that the defendant cannot avoid liability.
      2. acts that are not a breach of the peace, consent is effective, meaning the defendant could avoid liablity

Question 16

What happens if D exceeds the scope of consent given by P by committing a more intrusive invasion or intruding a different interest?

example: instead of preforming a tonsillectomy, doctor performs an appendectomy

Answer 16

D is liable

Question 17

self-defense

When D is responding to a perceived threat from P consider:

(Defenses for D)

Answer 17

1. Did D have proper timing?
   
   1. was threat imminent, in progress, or about to happen?
2. Does D have a reasonable belief that threat from P is genuine?
3. Did D use the proper amount of force?

Question 18

When can a person use self-defenses as a defense?

Answer 18

person reasonably believes that they are being attacked OR about to be attacked

Question 19

list (4)

when is self-defense available as a defense?

Answer 19

1. Reasonable belief of attack
2. Retaliation not allowed when there is no longer threat of injury
3. Retreat not necessary
4. Not available to initial aggressor unless other party uses deadly force

Question 20

Duty to retreat for self-defense?

Answer 20

1. Majority rule: no duty
2. Modern trend: duty to retreat before using deadly force if retreat can be done safely UNLESS actor is in their home

Question 21

When can the initial aggressor defend themselves

Answer 21

If the other party uses deadly force against initial aggressor who had only used nondeadly force, then initial aggressor CAN defend himself with deadly force against the other party’s deadly force.

Remember: Usually, the initial aggressor may not defend himself against the other party’s reasonable use of force in self-defense.

Question 22

How much force can be used?

Answer 22

only amount of force reasonably necessary to prevent harm.

cannot use deadly force unless reasonable belief of danger of serious bodily injury

Question 23

In the course of reasonably defending himself, one accidentally injuries a third party/bystander.

Is defense applicable?

(iow: not liable for injury to third party)

Answer 23

yes, defense applicable if injury was accidental.

if injury to bystander was deliberate then defense likely won’t apply

Question 24

is mistake allowed for the defense of self-defense

Answer 24

yes - reasonable mistake as to the existence of the danger

Question 25

While practicing their target shooting at the firing range, a man and woman got into an argument that almost erupted into physical combat, except that they were restrained and separated by bystanders. Later, in the parking lot of the range, the man shot the woman in the shoulder. Bystanders who rushed to the scene immediately after hearing the man’s shot found the woman on the pavement with a black flashlight in her hand. The woman’s pistol was in her locker at the firing range. At the trial of the woman’s civil action for battery against the man, the woman established that the man intentionally shot her. In defense, the man testified that the woman approached him, saying, “We’ll settle this once and for all, right now,” and raised an object toward the man. He testified that he feared that the woman was about to shoot him with a pistol, so he fired in self-defense.

Assuming that the jury decides that the man is telling the truth, what else must the jury find for him to prevail?

A No additional facts.

B That a reasonable person in the same circumstances would have believed that the woman was about to shoot.

C That the woman was at fault in raising a black object toward the man while threatening him.

D That the woman was the original aggressor.

Answer 25

B That a reasonable person in the same circumstances would have believed that the woman was about to shoot.

If the man prevails, it will be because the jury determined that he acted reasonably under the circumstances.

One may act in self-defense not only where there is real danger but also where there is a reasonable appearance of danger.

An honest but mistaken belief that the woman was about to shoot would justify the use of deadly force by the man if a reasonable person would have acted similarly under those circumstances.

The test is an objective one-an honest belief alone is not sufficient.

Question 26

Defense of others is available as a defense if the defender:

Answer 26

Has a reasonable belief that the person being aided has the right of self-defense

Question 27

For defense of others, can D use deadly force when aiding another person?

Answer 27

Yes, The defender may be able to use deadly force

Question 28

Is mistake allowed in defense of others

Answer 28

yes is reasonable mistake

meaning that even if the person the D aides did not have the right of force/self-defense (i.e. they were the initial aggressor), D will not be liable as long as he reasonably believed, EVEN MISTAKENLY, that the other person could have used force to defend themselves

Question 29

When is defense of property available?

Answer 29

to prevent commission of tort to ones property…should try to desist or leave first unless futile or dangerous

Question 30

When is the defense of a property unavailable

Answer 30

when tort has been committed* unless in hot pursuit

*remember - defense of property is only to prevent the commission of a tort

Question 31

List (5)

Shopkeeper’s privilege applies when

Answer 31

1. Reasonable belief that theft has been committed
2. Detention committed in a reasonable manner
3. Only nondeadly force can be used
4. Detention only for a reasonable period of time
5. Detention only for purpose of making an investigation

Question 32

What is the defense of necessity

Answer 32

A person can be/use/interfere with another person’s property when necessary to avoid injury from natural force or other forces

Question 33

list (2)

What are the types of necessity defenses

Answer 33

1. private necessity
2. public necessity

Question 34

When is public necessity raised

Answer 34

D acts to protect the public

ex: D sees a fire, breaks into a Acme Fire Extinguisher Co → Acme sues for trespass → D can use defense

Question 35

When can D use private necessity

Answer 35

When used to prevent serious harm to them, a limited group of ppl, or property from serious harm

Question 36

What is right of sanctuary

Answer 36

Type of private necessity

• ex #1: D enters house b/c snowstorm outside. If P kicks out D, D could sue for frostbite. P has to let D stay to prevent serious harm*
• ex #2: D ties up boat to P’ s dock during storm. If P kicks out D, P pays damages to D. However, D could be liable pay damages if boat ruins P’s dock even though it was a necessity to tie it up.*

Question 37

Defenses to intentional torts generally permit the use of reasonable force except for __________.

Answer 37

regaining possession of land

Question 38

For the defense of reentry onto land, which of the following is true?

A One can use force to regain possession only if she acts promptly

B One who has been dispossessed by fraud or force may use force to regain possession

C Force may never be used to regain possession

Answer 38

C Force may never be used to regain possession

Question 39

While practicing their target shooting at the firing range, a man and woman got into an argument that almost erupted into physical combat, except that they were restrained and separated by bystanders. Later, in the parking lot of the range, the man shot the woman in the shoulder. Bystanders who rushed to the scene immediately after hearing the man’s shot found the woman on the pavement with a black flashlight in her hand. The woman’s pistol was in her locker at the firing range. At the trial of the woman’s civil action for battery against the man, the woman established that the man intentionally shot her. In defense, the man testified that the woman approached him, saying, “We’ll settle this once and for all, right now,” and raised an object toward the man. He testified that he feared that the woman was about to shoot him with a pistol, so he fired in self-defense.

Assuming that the jury decides that the man is telling the truth, what else must the jury find for him to prevail?

A No additional facts.

B That a reasonable person in the same circumstances would have believed that the woman was about to shoot.

C That the woman was at fault in raising a black object toward the man while threatening him.

D That the woman was the original aggressor.

Answer 39

B That a reasonable person in the same circumstances would have believed that the woman was about to shoot.

If the man prevails, it will be because the jury determined that he acted reasonably under the circumstances.

One may act in self-defense not only where there is real danger but also where there is a reasonable appearance of danger.

An honest but mistaken belief that the woman was about to shoot would justify the use of deadly force by the man if a reasonable person would have acted similarly under those circumstances.

The test is an objective one-an honest belief alone is not sufficient.