DEFENSES TO INTENTIONAL TORTS Flashcards
If a prima facie case is presented for an intentional tort, is recovery by the plaintiff automatic?
No.
Define CONSENT
- To one who is willing, no wrong is done.
- CONSENT may be verbal (direct) or by action (implied/indirect).
- Willingness in fact for conduct to occur -> it NEED NOT BE COMMUNICATED TO THE ACTOR
Can a crazy person consent?
No.
Can a small child consent to battery?
No.
Define SELF DEFENSE
Actor is PRIVILEGED to use REASONABLE force, not intended to cause death or serious bodily harm, to defend himself against UNPRIVILEGED harmful or offensive contact or other bodily harm which he REASONABLY believes another is about to inflict INTENTIONALLY upon him.
{REASONABLE FORCE/REASONABLE BELIEF}
Can you claim self defense in defense of others?
Yes.
Same rules as self defense, but harder to establish mistake.
Does the Restatement favor stand your ground or duty of retreat with respect to self defense?
DUTY OF RETREAT
Define DEFENSE OF PROPERTY
A person may use REASONABLE force to protect property when she REASONABLY believes that force is necessary to prevent the intrusion.
NOTE: Once threat to property has ended, self-help is restricted.
When is it ok to set a spring gun in your house?
NEVER!!!!
TRUE OR FALSE: You can use deadly force to defend property.
FALSE
TRUE OR FALSE: You can shoot someone to wound them, but not to kill them if they are trying to steal your car.
FALSE - you cannot use deadly force to defend property only. This includes bodily harm, like shooting someone in the kneecaps.
Define NECESSITY
Permissible interference with another’s property in emergency situations.
NECESSITY is a defense to which 3 intentional torts?
Trespass to Chattels
Trespass to Land
Conversion
Define PRIVATE NECESSITY
Provides defendant with a QUALIFIED PRIVILEGE to interfere with property to protect their own interests.
QUALIFIED because it still requires defendant to compensate property owner for any damage caused.
Define PUBLIC NECESSITY
Provides defendant with a PRIVILEGE to commit an act which would otherwise be a TRESPASS TO CHATTEL, LAND, or CONVERSION if the act is or is REASONABLY BELIEVED to be necessary for the purpose of avoiding a public disaster.
What is the key difference between PRIVATE AND PUBLIC NECESSITY?
Private - defendant has to pay for damage
Public - defendant does not have to pay for damage
TROUBLE: when defendant is the State (Takings Doctrine)
