Defenses to Intentional Torts

Question 1

Consent

Answer 1

If the P has willingly agreed to be subjected to the D’s wrongful conduct, she may not recover for the resulting damages.
Affirmative defense.

Question 2

Operative Consent

Answer 2

Consent is to conduct not any particular result. Consent can be invalid if the P was misled as to the expected consequences. Or if the D’s knew or should have known that the consent was based on a material mistake of facts.

Question 3

How is Consent viewed?

Answer 3

from an objective standard and may be implied by circumstances.

Question 4

Capacity to Consent

Answer 4

understood the nature of the quality of D’s conduct, and was not coerced.

Question 5

Scope of implied consent

Answer 5

P controls the scope of any consent given and may limit that consent in any manner of her choosing.

Question 6

Mistakes of Material Facts - Consent

Answer 6

may sometimes negate apparent consent.

Question 7

Self Defense

Answer 7

a privilege for a person to defend his person, other persons, and property.
1. Reasonably believed that it was necessary to defend himself;
2. used only that degree of force he reasonably believed necessary.

Question 8

Privilege in Defense

Answer 8

allow the defendant to engage in conduct that invades some protected interest of the plaintiff and would otherwise constitute a tort.

Question 9

Self-Defense and Mistake of Fact?

Answer 9

generally allowed for most defenses.
A reasonable belief that defensive force was necessary and proportionate to the threat is all that is required for self-defense.

Question 10

Defense of Property

Answer 10

• force must reasonably appear necessary but may not be exessive in light of the higher value the law places on human safety over property interests. (cannot use deadly force)

Question 11

Deadly Force

Answer 11

capable of causing death or serious bodily harm.
* never a defense to the protection of property except an occupied dwelling (castle doctrine)

Question 12

Castle Doctrine

Answer 12

Self-Defense may justify the use of deadly force if reasonably necessary to defend against the same force or when defending an occupied dwelling.

Question 13

Privilege to recover wrongfully taken personal property: limitations

Answer 13

1. must involve an immediate hot pursuit of the wrongfully taken chattel and not require a breach of the peace.

Question 14

Common Law and Retreat (defense)

Answer 14

requires that the defendant retreat rather than use force to defend himself if he can do so safely.
Exception: castle doctrine: no retreat approach extends to areas outside the home.

Question 15

Necessity Defense

Answer 15

1. Facing an imminent threat;
2. that reasonably appears necessary to preserve some higher or more valuable interest;
3. the actor is then privileged to commit a tort.

Question 16

Public Necessity - what is protected?

Answer 16

interest beloning to society, the public at large

Question 17

Privilege of Public Necessity

Answer 17

No compensation under common law.
- mistake doctrine applies as long as the D’s decision was objectively reasonable.

Question 18

Private Necessity - interests protected

Answer 18

actors own interests.
Mistake doctrine applies, and allows reasonable mistakes.

Question 19

Police Powers: public necessity

Answer 19

authority of the state to preserve public health, safety, and welfare.
If the plaintiff property itself imposes a threat, that property may be destroyed or damaged as the government abates the threat it poses and without compensation to the owner.

Question 20

Eminent Domain

Answer 20

Governments may take private property for public use but must provide compensation.