Defenses to Intentional Torts

Question 1

what are the defense to inteinotal torts?

Answer 1

(1) consent
a) express consent
b) implied consent

(2) protective privileges
a) self-defense
b) defense of others
c) defense of property
d) re-entry onto land
e) recapture of chattels

(3) Necessity
a) public necessity
b) private necessity

Question 2

what is the defense of ‘consent’?

Answer 2

The plaintiff’s consent to the defendant’s conduct is a defense, but the majority view is that one cannot consent to a criminal act.

Any consent fact pattern raises two questions:
(1) Was there a valid consent?
(2) Did the defendant stay within the boundaries of the consent?

Question 3

who can give ‘consent’?

Answer 3

individuals with capacity.
Individuals without capacity are deemed incapable of consent, i.e. drunks and very young children.

Persons with limited capacity (i.e. older children and persons with mild intellectual disabilities) can consent, but ONLY to things within the scope of their understanding

Question 4

what two types of consent are available?

Answer 4

(1) express consent
(2) implied consent

Question 5

what is (1) express consent?

Answer 5

The defendant is NOT liable if the plaintiff expressly consents to the defendant’s conduct.

Question 6

what 3 things will invalidate express consent?

Answer 6

Exceptions:
(1) mistake will undo express consent if the defendant 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 7

what is (2) implied consent?

Answer 7

Apparent consent is that which a reasonable person would infer from custom and usage OR the plaintiff’s conduct

for example, normal contacts inherent in body-contact sports, ordinary incidental contact, etc.

Question 8

what is ‘consent implied by law’?

Answer 8

Consent implied by law arises when action is necessary to save a person’s life or some other important interest in person or property.

Question 9

if consent is given - how could the defendant still be otherwise liable for the tort?

Answer 9

If the defendant exceeds the scope of consent by committing a more intrusive invasion or by invading a dierent interest than the one the plainti referenced, they may be liable.

Question 10

what is the defense of (2) protective privileges?

Answer 10

when a question involves the defense of self, others, or property, ask THESE 3 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 11

protective privileges: a) self-defense

Answer 11

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.

Question 12

self defense - 1) is the privilege available?

Answer 12

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 privilege may also extent to THIRD PARTY INJURED that were caused while the actor was trying to defend themselves (will not apply if they deliberately injured the 3P in trying to protect themselves)

WHEN NOT AVAILABLE: self-defense is not available to the INITIAL AGRESSOR - unless the other party responds to the aggressor’s non-deadly force by using deadly force

Question 13

self-defense (2) is mistake allowed?

Answer 13

a reasonable mistake as to the existence of the danger is allowed

Question 14

self defense - (3) was a proper amount of force used?

Answer 14

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 15

protective privileges: b) defense of others

Answer 15

defense of others - (1) is privilege available?

one may use force to defend another when they REASONABLE BELIEVE that the other person could have used force to defend themselves

Question 16

defense of others - (2) is mistake allowed?

Answer 16

a reasonable mistake as to whether the other person is being attacked or has a right tot defend themselves is PERMITTED

Question 17

defense of others - (3) was a proper amount of force used?

Answer 17

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 18

protective privileges: c) defense of property

(1) is privilege available?

Answer 18

One may use reasonable force to prevent the commission of a tort against their real or personal property.

A request to desist or leave MUST FIRST be made UNLESS it clearly would be futile or dangerous.

The defense does not apply once the tort has been committed; however, one may use force in hot pursuit of another who has tortiously dispossessed the owner of their chattels because the tort is viewed as still in progress if the defendant is in the act of fleeing.

Question 19

when else is the defense of property NOT available?

Answer 19

it 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 20

defense of property (2) is mistake allowed?

Answer 20

a reasonable mistake is allowed as to whether an intrusion has occurred OR whether a request to desist is required.

A mistake is NOT allowed as to whether the entrant has a privilege (i.e. necessity) that SUPERSEDES the defense of property right (unless entrant conducts the entry so as to lead the defendant to reasonably believe it is not privilege)

Question 21

defense of property (3) how much force may be used?

Answer 21

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.

The same principle makes it impermissible to set deadly mechanical devices or traps (such as spring guns) to protect property.

Question 22

Defense of property - SHOPLIFTING DETENTIONS

Answer 22

a shopkeeper has a privilege to detain a SUSPECTED shoplifter for investigation.

For the privilege to apply, the following conditions must be met:
1) there must be a REASONABLE BELIEF as to the fact of theft
2) the detention must be conducted in a REAOSNABLE 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 23

protective privileges (d) - re-entry onto land

Answer 23

At common law, one could use force to reenter land ONLY when an intruder came into possession tortiously, such as by a trespass.

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 24

protective privileges (e) recapture of chattels

Answer 24

The basic rule is the same as that for reentry of land at common law: When another’s possession began lawfully (for example, 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 (for example, by theft)

Question 25

what is the defense of (3) Necessity?

Answer 25

A person may interfere with the real or personal property of another when
(1) it is REASONABLY and APPARENTLY NECESSARY in an EMERGENCY to AVOID INJURY from a natural or other force
AND
(2) when the threatened injury is substantially more serious than the invasion that is under- taken to avert it.

Question 26

What are the two types of necessity?

Answer 26

There are two types of necessity:
1) public necessity
2) private necessity

Question 27

1) public necessity

Answer 27

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

Question 28

2) private necessity

Answer 28

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).