Defenses to Intentional Torts Flashcards
When is consent a defense to an intentional tort?
Person had legal capacity to give express/implied consent
D didn’t exceed scope of consent by committing more intrusive invasion or by invading different interest
Majority view: P cannot consent to a criminal act
Legal Capacity
* No Capacity: Drunk people, very young children
* Limited Capacity: Can consent but only to things within scope of understanding (ex. older children, persons with mild intellectual disabilities)
Note: Everyone has capacity to commit a tort (no incapacity defense available) but not everyone has capacity to consent to a tort.
Scope of Consent: Ex. Doctor can’t give you nose job after getting consent for knee surgery
What are the exceptions to express (actual) consent?
Express consent = oral or written consent
(a) P made a mistake, and D knew of and took advantage of the mistake
(b) Consent was induced by fraud concerning an essential matter (NOT collateral matter)
(c) Consent induced under duress
* Threats of future action/future economic deprivation are not duress
How is implied consent created?
Reasonable person could infer consent from:
(a) Custom and usage (ex. tackled while playing football, pushed on subway)
(b) P’s conduct (ex. handshake)
Consent implied by law: action is necessary to save person’s life or an important interest in person/property
P’s conduct: reasonable reading of P’s behavior/body language and surrounding circumstances
What are protective privileges?
Self-defense of self, others, or property (based on a perceived threat from P)
* Requires reasonable belief that threat was genuine
* Can only be used to prevent commission of tort by P
* Only allows reasonable force
Issue is whether D’s act against P constitutes a tort (battery, trespass to land/chattels) or a privileged defense
When can D use self-defense?
If D reasonably believes he’s being or about to be attacked, D can use force as is reasonably necessary to protect against injury
There is no duty to retreat
* Initial aggressor can’t claim self-defense unless other party responds to aggressor’s nondeadly force with deadly force
Third Parties: If D hurt third party while trying to protect himself, self-defense might be used to third-party injury
* Ex. D threw rock to protect himself from attack and it hit third party
Self-Defense of Self
What if D was mistaken as to danger?
Reasonable mistake as to existence of danger is OK
Can D use deadly force to protect property?
No, deadly force can NEVER be used to protect property.
* Cannot set deadly mechanical devices/traps (spring guns) to protect property
If invasion of property threatens serious bodily harm to a PERSON on the property, then deadly force can be used
* Home intruder is presumed to pose a deadly threat to the person
When is defense of others allowed?
If D reasonably believes that other person could’ve used force to defend themselves
Reasonable mistake IS allowed as to whether other person is being attacked or has right to defend themselves
D can only use as much force as D could’ve used in defense of himself
When is defense of property allowed?
To prevent tort: D can use reasonable force to prevent tort against real or personal property AFTER request to desist/leave (unless request is futile/dangerous)
After tort: D can also use force in hot pursuit of someone who steals chattels (tortiously dispossesses owner of chattels)
Reasonable mistake IS allowed as to whether intrusion occurred or request to desist was required.
* Mistake NOT allowed if entrant had a privilege (ex. necessity) that override right to defend property
Trespass to Chattels
What is the shopkeeper’s detention privilege?
Shopkeeper has privilege to detain suspected shoplifter for investigation IF:
* (a) there is reasonable belief theft occurred
* (b) detention is conducted in reasonable manner (only nondeadly force)
* (c) detention was for reasonable period of time (to conduct investigation)
What can D do to recover possession of his land?
(Reentry of land)
Modern: D CANNOT use self-help to recover possession of real property. Must follow ejectment procedures
Common law: D can use force to reenter land if intruder came into possession tortiously (trespass)
What can D to recover possession of chattels?
If a person initially had legal right to possess chattel (and then later trespassed on it), D can only recover peacefully
* If D lent computer to friend and then friend refuses to return it, D can’t use force to take it back
If person initially obtained possession wrongfully (theft), reasonable force can only be used in hot pursuit
What is the privilege of necessity?
Person can interfere with real/personal property of another if (a) it’s reasonable and apparently necessary in an emergency to avoid injury and (b) threatened injury is substantially more serious than invasion
Necessity is an absolute defense (leads to NO liability)
What are the two types of necessity?
Public Necessity: D acts to avert an imminent public disaster (ex. from fire/hurricane) to protect the community as a whole
Private Necessity: D acts to prevent serious harm to limitebenefit property owner)d number of people.
* D must pay for any injury they cause (unless act was to
When can you use the privilege of necessity?
It’s only a defense to property torts (tresspass to chattel/land or conversion)
