DEFENSES TO INTENTIONAL TORTS

Question 1

consent by the pff

Answer 1

pff’s consent to D’s conduct = defense that D can assert

questions to ask re: consent
1) was there valid consent?
2) did the D stay within boundaries of the consent given?

Question 2

capacity required for consent

Answer 2

individuals without capacity cannot consent (drunk people, young children)

Question 3

actual consent by the plaintiff

Answer 3

D is NOT liable if pff expressly consents to D’s conduct

two exceptions where D is liable even if pff consents to D’s conduct:
1) pff’s consent induced by fraud by defendant
2) pff’s consent that is obtained by duress by defendant

Question 4

implied consent

Answer 4

RP can infer consent from CUSTOM OR pff’s conduct (e.g., normal contacts inherent in body contact sports, etc)

Question 5

exceeding consent given

Answer 5

if the D exceeds scope of consent given by pff by committing a more intrusive invasion, D may be liable

this is something that pff would raise in response to the consent defense by the D

Question 6

protective privilege defenses (3 total) to intentional torts

Answer 6

when q involves DEFENSE of self, others, or property, ask these questions:
1. is privilege available (apply only for preventing a tort; proper timing is important)
2. is mistake permissible as to whether tort being defended against (battery, trespass, etc) is actually being committed
3. was a proper amount of force used

NOTE: the issue is whether the D’s response itself constituted a tort against the pff (usually battery, trespass to land) or instead was privileged by one of these defenses; the D is saying that I didn’t commit an intentional tort because I was trying to prevent one

Question 7

self defense / when is it available
(First protective privilege)

Answer 7

• when person reasonably believes that they are being attacked, they can use force to protect themself
• unavailable to initial aggressor; it is available if other party responds to aggressor’s nondeadly force by using deadly force
• no duty to retreat
• self defense can extend to third party injuries (caused while actor was defending themself)

Question 8

is mistake allowed re: self defense

Answer 8

reasonable mistake as to existence of danger is permitted

Question 9

defense of others
(Second protective privilege)

Answer 9

• one can use force to defend another when they reasonably believe that the other person could’ve used self defense
• reasonable mistake as to whether the other person is being attacked/has a right to defend themselves is allowed

Question 10

defense of property
(Third protective privilege)

Answer 10

• one can use reasonable force to PREVENT A TORT against their real or personal property
• request to LEAVE must first be made unless it clearly would be dangerous
• one can use force in HOT PURSUIT of another who has taken their goods/chattel (tort is viewed as still in progress)

Question 11

defense of property defense v. one with a privilege

Answer 11

• defense of property defense is not available against one with a privilege (i.e., whenever actor has privilege to enter onto land of another b/c of necessity, recapture of chattels, etc., that privilege will supersede land possessor ability to defend their property)

Question 12

defense of prop and mistake

Answer 12

• reasonable mistake allowed re whether intrusion has occurred
• mistake is NOT permitted as to whether entrant has a privilege (e.g., necessity) that supersedes the defense of property right

Question 13

how much force can be used re defense of property

Answer 13

• NO deadly force unless invasion of prop also entails serious threat of bodily harm

***question re: trespasser threatening only property interest of the electric company – use of deadly force would NOT be privileged against the trespasser!

Question 14

shoplifting detentions re: defense of prop

(Three R’s)

Answer 14

shopkeeper has privilege to detain suspected shoplifter for investigation

1. there must be reasonable belief as to fact of theft
2. detention must be conducted in reasonable manner (only nondeadly force can be used)
3. detention must be only for reasonable period of time

this is defense to false imprisonment

Question 15

recapture of chattels privilege

Answer 15

• when another’s possession began LAWFULLY, one may use only peaceful means to recover chattel
• reasonable force may be used to recapture a chattel only when in hot pursuit of one who has obtained possession wrongfully (e.g., theft)

Question 16

necessity defense (defense ONLY to intentional property torts—i.e., trespass to land, trespass to chattels, conversion)

Answer 16

a person may interfere with someone else’s real or personal prop to AVOID THREATENED INJURY

• public necessity: D acted to avert imminent PUBLIC disaster
• private necessity: D acted to prevent harm to limited # of people (actor must pay for any injury they cause – unless act was to benefit property owner) - e.g., necessary for motorist to push car into landowner’s driveway to avoid threat of other cars colliding with it on the narrow road

REMEMBER THAT WHILE PRIVATE NECESSITY IS A DEFENSE TO TRESPASS TO LANDS, IT DOES NOT RELIEVE ONE OF LIABILITY FOR DAMAGE DONE TO THE PROPERTY!