Defenses to Intentional Torts Flashcards
Draft Third Restatement of Torts, Self-Defense and Defense of Third Persons: General Principles
An actor is privileged to use force against another for the purpose of defending the actor or a third person against the other’s unprivileged use of force, if the actor reasonably believes that the force is both necessary and proportionate to the force that the other is intentionally inflicting or about to inflict….
Draft Third Restatement of Torts, Privilege to Defend Land or Personal Property from Intrusion
An actor is privileged to engage in conduct that would otherwise satisfy the elements of battery, assault, … or false imprisonment in order to prevent another’s imminent intrusion or terminate another’s intrusion upon the actor’s land or personal property, if:
(a) the intrusion is not privileged;
(b) the actor first asks the intruder to desist and the intruder disregards the request, or the actor reasonably believes that a request will be useless or dangerous or that substantial harm will be done before the request can be made;
(c) the actor reasonably believes that the other is intruding or imminently will intrude upon the actor’s property, and that the intrusion can be prevented or terminated only by the means used;
(d) the means used are reasonably proportionate to the value of the interest the actor is protecting; and
(e) the means used are not intended or likely to cause death or serious bodily injury.
Draft Third Restatement of Torts, Privilege to Regain Possession of … Personal Property
… (b) An actor is privileged to [use force] for the purpose of regaining possession of the actor’s personal property from another, only if the following conditions exist:
(1) the other
(A) has wrongfully removed the property from the actor’s possession; or
(B) has received custody of the property from the actor and refuses to surrender it to the actor; or
(C) has received custody of the property from a third party, knows or should know of the underlying facts that make receipt of the property wrongful, and refuses to surrender the property to the actor;
(2) the actor is entitled as against the other to the immediate possession of the property;
(3) the actor reasonably believes that the other is about to remove the property from the actor’s presence;
(4) the actor first requests the other to return the property and the other disregards the request, or the actor reasonably believes that a request will be useless or that the property will be damaged or secreted before the request can be made;
(5) the actor reasonably believes that the property can be regained only by the means used;
(6) the means used are reasonably proportionate to the value of the interest the actor is protecting; and
(7) the means used are not intended or likely to cause death or serious bodily harm.
The Recapture Privilege (Regain Possession of Personal Property)
“The court rejected plaintiff’s suit on the grounds that the defendants were privileged to recapture the stove:
To obtain possession of the property in question no violence to the person of the plaintiff was necessary, or required, unless from his resistance. It was not like property carried about the person, as a watch, or money, nor did it require a number of people to effect the object.”
Claims of Right (Regain Possession of Personal Property)
“But this right of defense and recapture involves two things:
(1) First, possession by the owner; and,
(2) Second, a purely wrongful taking or conversion, without a claim of right.”
Draft Third Restatement of Torts, Categories of Consent That Preclude Liability
An actor is not liable to another for the actor’s otherwise tortious intentional conduct if the other gives legally effective consent to that conduct. Consent is legally effective, and thus precludes liability, if the criteria of any of the following categories of consent are satisfied:
(a) Actual consent …; (plaintiff has burden of proof)
(b) Apparent consent …. (defendant has burden of proof)
Draft Third Restatement of Torts, Actual Consent: Definition and Conditions
A person actually consents to an actor’s otherwise tortious intentional conduct if:
(a) the person is willing for that conduct to occur, and such willingness may be express or may be inferred from the facts;
(b) the actor’s conduct is within the scope of the person’s consent…;
(c) the person has the capacity to consent …; and
(d) the consent is not given under duress or under substantial mistake….
Draft Third Restatement of Torts, Actual Consent: … Absence of Substantial Mistake
A person does not actually consent to the actor’s conduct if any of the following circumstances exists:
…
(c)
(i) The person gives consent because of a substantial mistake concerning either the nature of the invasion of the person’s interests, the extent of the expected harm, or the actor’s purpose in engaging in the conduct; and
(ii) The actor knows of the mistake or causes the mistake by affirmative misrepresentation or fraud.
Draft Third Restatement of Torts, Apparent … Consent
… Apparent consent exists if the actor reasonably believes that the other person actually consents to the conduct, without regard to whether the person does actually consent….
Limitations on Consent
- “One set of situations where the effect of consent is limited is when the person who purportedly consented could not legally give that consent.
The Restatement explains it this way: “To be effective, consent must be (a) by one who has the capacity to consent or by a person empowered to consent for him, and (b) to the particular conduct, or to substantially the same conduct.” - A final set of situations where the law will not honor what the defendant claims to be consent is where the facts suggest a lack of voluntariness.”
Privilege of Necessity
For cases of alleged trespass, tort law allows defendants to argue that their actions were necessary and therefore privileged. Private vs. Public Necessity
Public Necessity (Privilege of Necessity)
“Where the more valuable interest belongs to a large number of persons, as for example, where a city must be saved from a fire, the privilege may be deemed one of public necessity, and the defendant will owe no compensation for any damage that occurs in reasonable exercise of the privilege. → defendant is acting in the public’s interest
Private Necessity (Privilege of Necessity)
However, where the more valuable interest belongs only to the defendant or a small number of persons, the privilege is classified as a case of private necessity, and in suits by a party injured by the invasion, courts will require that the taker pay compensation for the harm caused by the invasion. The privilege of private necessity is thus an incomplete privilege.” → defendant is acting in his/her own interest
If you cause harm as result of invoking the privilege of necessity, the person who commits the “trespass” out of necessity might be required to pay compensation → incomplete privilege instead
