Defenses to Intentional Torts Flashcards
What are the three defenses to intentional torts
1) Consent
2) Protective Privileges (self-defense, Defense of Others, Defense of Property)
3) Necessity (limited to property intentional torts)
Consent
The plaintiff’s consent to the defendant’s conduct is a defense, HOWEVER one cannot consent to a criminal act.
Capacity Required (Consent)
Individuals without capacity are deemed incapable of consent (drunk, very young children)
Persons with limited capacity (older children and persons with mild intellectual disability) can consent, but only to things within their scope of understanding.
NOTE - on the MBE, everyone has the capacity to commit a tort, but not everyone has the capacity to consent to a tort
Express Consent
The defendant is not liable if the plaintiff expressly consented to the defendant’s conduct.
EXCEPTIONS:
1) mistake if the defendant knew of and took advantage of the mistake;
2) consent induced by fraud is invalid if it goes to an essential matter (not a collateral); and
3) consent obtained by duress unless the duress is only threats of future action or future economic deprivation
Implied Consent
Apparent consent - what a reasonable person would infer from
1) custom and usage; or
2) the plaintiff’s conduct - For this to apply, it must be the defendant’s REASONABLE interpretation of the plaintiff’s objective conduct and surrounding circumstances
Implied consent - arises when an action is necessary to save a person’s life or some other important interest in person or property
Exceeding Consent
If the defendant exceeds the scope of consent by committing one or more intrusive invasions or by invading a different interest that the plaintiff referenced, they may be liable
Self-Defense (Protective Privilege 1)
When a person reasonably believes that they are being or about to be attacked, they may use such force as is reasonably necessary to protect against injury.
NOTE - The majority rule is there is not duty to retreat.
Self defense is not available to the initial aggressor, unless the other party responds to the aggressor’s non-deadly force with deadly force
Self defense may extend to third party injuries, but the actor may be liable to a third person if they deliberately injured the third party in trying to protect themselves.
Mistake and Amount of Force (Self Defense)
A reasonable mistake as to the existence of the danger is allowed.
One may use only the force that reasonably appears necessary to prevent the part. If more force than reasonably necessary is used, the defense is lost.
Defense of Others (Protective Privilege 2)
One may use force to defend another when they reasonably believe that the other person could have used force to defend themselves.
A reasonably mistake at to whether the other person is being attacked or has a right to defend themselves is permitted.
The defender may use as much force as they could have used in self-defense if they were the one threatened with the injury.
Defense to Property (Protective Privilege 3)
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
HOT PURSUIT EXCEPTION
– one may use force in hot pursuit of another who has tortiously dispossessed the owner of their chattel because the tort is viewed as still in progress if the defendant is in the act of fleeing
NOTE - this is not available against one with a privilege. Whenever one has a privilege to enter onto the land of another because of necessary, recapture chattel, ect. that privilege will supersede the privilege of the land possessor to defend their property.
Mistake (Defense to Property)
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 that supersedes the defense to property right, unless the entrant conducts the entry so as to lead the defendant to reasonably believe it is not privileged
How Much Force (Defense to Property)
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.
It is impermissible to set deadly mechanical devices or traps to protect property (spring guns)
GA Defense of Habitation
A person is justified in using deadly force in defense of habitation when, based on reasonable belief:
1) the entry is made or attempted in a violent manner and entails a serious threat of bodily harm to the occupant;
2) the force is used against the person who is unlawfully and forcibly entering the habitation and the person is not a member of the household; or
3) the entry is made or attempted for the purpose of committing a felony and such force is necessary to prevent the felony
Deadly force may be used in defense of property other than habitation based on a reasonable belief that it is necessary to prevent the commission of a forcible felony.
Shopkeeper’s Privilege
A shopkeeper has a privilege to detain a suspected shoplifter for investigation if:
1) there is a reasonable belief as t the fact of theft;
2) the detention is conducted in a reasonable manner and only non deadly force is applied; and
3) the detention is only for a reasonable period of time and only for the purpose of making an investigation
Recapture of Chattels
When another’s possession began lawfully (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
