DEFENSES TO INTENTIONAL TORTS Flashcards
consent
- Was there a valid consent?
- Did the defendant stay within the boundaries of the consent?
Self-Defense
When a person reasonably believes that they are being or are about to be attacked, they may use such force as is reasonably necessary to protect against injury.
The majority rule is that there is no duty to retreat
A reasonable mistake as to the existence of the danger is allowed.
Defense of Others
One may use force to defend another when they reasonably believe that the other person could have used force to defend themselves.
A reasonable mistake as to whether the other person is being attacked or has a right to defend themselves is permitted.
The defender may use as much force as they could have used in self-defense if they were the one threatened with the injury.
Defense of Property
One may use reasonable force to prevent the commission of a tort against their real or personal property
A reasonable mistake is allowed as to whether an intrusion has occurred or whether a request to desist is required
Reasonable force may be used. However, one may not use force causing death or serious bodily harm unless the invasion of property also entails a serious threat of bodily
harm.
Shoplifting Detentions
- There must be a reasonable belief as to the fact of theft
- The detention must be conducted in a reasonable manner and only nondeadly force can be used
- The detention must be only for a reasonable period of time and only for the purpose of making an investigation
NECESSITY
A person may interfere with the real or personal property of another when it is reasonably and apparently necessary in
an emergency to avoid injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it.
Necessity is a defense only to property torts
Public Necessity
A defendant can raise public necessity as a defense if they acted to avert an “imminent public disaster.”
Private Necessity
Private necessity can be a defense when the action was to prevent serious harm to a limited number of people. Under private necessity, the actor must pay for any injury they cause (unless the act was to benefit the property owner).
