Defenses to Intentional Torts

Question 1

Consent:

Answer 1

Subjective willingness to engage in conduct
Informal: Can reasonably be inferred
Doesn’t apply to Sexual Assault
Explicit: Verbal or Written

Question 2

5 ways to undermine Consent

Answer 2

1. Relationship (Power imbalance, prisoners and guards)
2. Incapacity (Minors, mentally disabled)
3. Scope Kaplan v. Mamelak
4. Lack of information (Can’t consent to having sex with HIV carrier that doesn’t tell you)
5. Consent to engage in crime

Question 3

Public Necessity (Surocco) :

Answer 3

1. Where public interest is involved
2. Reasonable belief action was necessary
3. Reasonable response to the circumstances
   -”Necessitas inducit privilegium quod jura privata.”
   -Protects against liability for actual harm

Question 4

Private Necessity (Ploof, Vincent)

Answer 4

-Private Necessity justifies
1. entry upon land and
2. interference with personal property that would otherwise be trespasses.
A. However, if one damages the property of another to preserve their own, they can still be held liable for the damages caused.