Defenses to Intentional Torts

Question 1

Consent

Answer 1

• P’s consent to D’s conduct is a defense, but the majority view is that one cannot consent to a criminal act.

Question 2

Consent: Capacity Required

Answer 2

• Individuals w/o capacity are deemed incapable of consent (ex. drunken persons, very young children).
• Persons with limited capacity, (ex. older children, persons with mild intellectual disabilities), can consent, but only to things within the scope of their understanding.

Question 3

Consent Tip:

Answer 3

• This requirement of capacity differs from the rule for the intent element of intentional torts, where incapacity is no defense. Everyone (even a young child) has the capacity to commit a tort, but not everyone has the capacity to consent to a tort.

Question 4

Express (Actual) Consent

Answer 4

• D is not liable if P expressly consents to D’s conduct
• Exceptions:
  (1) mistake will undo express consent if D knew of and took advantage of the mistake;
  (2) consent induced by fraud will be invalidated if it goes to an essential matter, but not a collateral matter; and
  (3) consent obtained by duress will be invalidated unless the duress is only threats of future action or future economic deprivation.

Question 5

Implied Consent

Answer 5

• Apparent consent is that which a reasonable person would infer from custom and usage/P’s conduct, (ex. normal contacts inherent in body-contact sports, ordinary incidental contact, etc).
• Consent implied by law arises when action is necessary to save a person’s life/some other important interest in person/property.

Question 6

Exceeding Consent Given

Answer 6

If D exceeds the scope of consent by committing
a more intrusive invasion/by invading a different interest than the one P referenced, they may be liable

Question 7

Protective Privileges

Answer 7

When a question involves the defense of self, others, or property, ask the following three questions:
(1) Is the privilege available? These privileges apply only for preventing the commission of a tort. Already committed torts do not qualify.
(2) Is a mistake permissible as to whether the tort being defended against (battery, trespass, etc.) is actually being committed?
(3) Was a proper amount of force used?

Question 8

Protected Privileged Tip:

Answer 8

• Keep your parties clear. In questions involving
  these defenses, the conduct of D was
  prompted by the commission/apparent commission of a tort by P.
• That tort is not at issue, however; the issue is whether D’s response itself constituted a tort against P (usually battery, trespass to land/trespass to chattels) or instead was privileged by one of these defenses.

Question 9

Self Defense

Answer 9

• When a person reasonably believes that they are being/are about to be attacked, they may use such force as is reasonably necessary to protect against injury

Question 10

When SD is Available

Answer 10

• The majority rule is that there is no duty to retreat.
• The modern trend imposes a duty to retreat before using deadly force if this can be done safely, unless the actor is in their home.
• Self-defense is not available to the initial aggressor unless the other party responds to the aggressor’s non deadly force by using deadly force.
• Self-defense may extend to 3rd party injuries (caused while the actor was defending themselves).
• An actor might be liable to a 3rd person if they deliberately injured the 3rd person in trying to protect themselves.

Question 11

SD: Is Mistake Allowed?

Answer 11

• A reasonable mistake as to the existence of the danger is allowed.

Question 12

SD: How Much Force May Be Used?

Answer 12

• One may use only that force that reasonably appears to be necessary to prevent the harm (including deadly force). If more force than is reasonably necessary is used, the defense is lost.

Question 13

SD: Defense of Others

Answer 13

• One may use force to defend another when they reasonably believe that the other person could have used force to defend themselves

Question 14

SD: Defense of Others - Is Mistake Allowed?

Answer 14

• A reasonable mistake as to whether the other person is being attacked or has a right to defend themselves is permitted.

Question 15

SD: Defense of Others - How Much Force May Be Used?

Answer 15

• The defender may use as much force as they could have used in self-defense if they were the one threatened with the injury.

Question 16

Defense of Property

Answer 16

• One may use reasonable force to prevent a tort against their property.
• A request to desist/leave must first be made unless it clearly would be futile/dangerous.
• Defense does not apply once tort has been committed; however, one may use force in hot pursuit of another who has tortiously dispossessed the owner of their chattels

Question 17

DOP: Tip

Answer 17

• Remember that this defense is not available
  against one with a privilege. Whenever an actor
  has a privilege to enter onto the land of another
  because of necessity, recapture of chattels, etc., that privilege will supersede the privilege of the land possessor to defend their property.

Question 18

DOP: Is Mistake Allowed?

Answer 18

• A reasonable mistake is allowed as to whether an intrusion has occurred/whether a request to desist is required.
• A mistake is not allowed as to whether the entrant has a privilege (ex. necessity) that supersedes the defense of property right, unless the entrant conducts the entry so as to lead D to reasonably believe it is not privileged
  (such as by refusing to say what the necessity is).

Question 19

DOP: How Much Force May Be Used

Answer 19

• Reasonable force may be used.
• One may not use force causing death/serious bodily harm unless the invasion of property also entails a serious threat of bodily harm.
• Same principle makes it impermissible to set deadly mechanical devices/traps (such as spring guns) to protect property

Question 20

DOP: Tip on Force

Answer 20

• There is a common misperception that deadly force
  may be used to protect one’s home. This is not
  strictly true.
• Many of the “home defense” cases are
  really self-defense cases. Thus, deadly force can only be used when a person, not just property, is threatened.

Question 21

DOP: Shoplifting Detentions

Answer 21

• A shopkeeper has a privilege to detain a suspected shoplifter for investigation.
• Following conditions must be satisfied:
  (1) There must be a reasonable belief as to the fact of theft
  (2) The detention must be conducted in a reasonable manner and only non deadly force can be used
  (3) The detention must be only for a reasonable period of time and only for the purpose of making an investigation

Question 22

Reentry onto Land

Answer 22

• Under modern law, there are summary procedures
  such as ejectment for recovering possession of real
  property. Hence, resort to self-help is no longer allowed.

Question 23

Recapture of Chattels

Answer 23

• When another’s possession began lawfully (ex. a conditional sale), one may use only peaceful means to recover the chattel.
• Reasonable force may be used to recapture a chattel only when in hot pursuit of one who has obtained possession wrongfully (ex. by theft)

Question 24

Property Torts: Necessity

Answer 24

• A person may interfere with another’s property when it is reasonably & 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.
• There are two types of necessity:
  (1) Public
  (2) Private
• Necessity is a defense only to property torts

Question 25

Public Necessity

Answer 25

• D can raise public necessity as a defense if they
  acted to avert an “imminent public disaster.”

Question 26

Private Necessity

Answer 26

• 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).