Defenses to Intentional Torts

Question 1

Consent

Answer 1

A defense to all intentional torts: if P consents to D’s otherwise tortious conduct, D is not liable for that act
-Capacity required: P must be capable of consenting
-I.e. drunks, mentally impaired, and young children are incapable of consenting to tortious conduct

Question 2

Express consent

Answer 2

P gives D verbal or written consent
-Nullified by duress, fraud, or mistake

Question 3

Implied consent

Answer 3

D can reasonably infer P’s consent based on custom or P’s observable conduct
-Often arises if P participates in an activity or goes to a place where torts are common
-E.g. if P plays tackle football, P has given implied consent to certain forms of battery
-Consent is usually implied for ordinary contacts of daily life (e.g. brushing against someone on crowded sidewalk or public transportation)
-Facts must indicate that based on P’s objective conduct, D was reasonable in interpreting P’s consent

Question 4

Scope of consent

Answer 4

D can be held liable for conduct that exceeds the scope of P’s valid consent (express or implied)

Question 5

Requirements for all defenses (self defense, defense of others, defense of property)

Answer 5

1) Reasonable belief: D must reasonably believe a tort is being or about to be committed
2) Proper timing: tort must be in progress or imminent
3) Reasonable force: must be proportionate to threat of harm
-Deadly force: allowed if D reasonably believes a life is in danger (never permitted to protect property alone)

Question 6

Self-defense

Answer 6

• No duty to retreat (except a minority of jurisdictions impose a duty to retreat before using deadly force if retreat can be done safely)
• Only available to initial aggressor if initial threat has terminated or D responds to non deadly force with deadly force

Question 7

Defense of others

Answer 7

D must have reasonable belief that the person he is aiding would have the right of self defense
-D may use as much force as he could have used if the injury was threatened to him (i.e. if he was acting in self defense)

Question 8

Defense of property

Answer 8

Avaiable to prevent tort against property
* Reasonable force may be used, but force that is deadly or causes serious bodily harm is not allowed for defense of property alone
* Unavailable if initial actor had a privilege to enter land (e.g. recapturing chattel)
* Reasonable mistake only allowed as to whether an intrusion occurred, not whether privilege existed)

Question 9

Necessity

Answer 9

A defense to torts against property (trespass to land, trespass to chattel, conversion) in which D damages P’s property in an effort to avoid a greater danger

Question 10

Necessity-requirements

Answer 10

1) D’s interference with P’s property must be reasonably necessary to avoid an immediate threatened injury
2) Threatened injury must be more serious than the interference undertaken to avert it

Question 11

Public necessity

Answer 11

Absolute defense
-D’s invasion of P’s property must be reasonably necessary to protect the community or a large group of people
-Absolute defense: P cannot recover any damages

Question 12

Private necessity

Answer 12

Limited defense
-D invades P’s property to protect his own property or self or small group
-Limited defense: P can only recover damages for actual harm to D’s property, unless D trespassed for P’s benefit

Question 13

Property owner liability

Answer 13

If an owner repels or expels a trespasser who interfered with or invaded owner’s property out of a valid necessity (e.g. P seeks shelter from terrible storm) owner will be liable for any damage caused

Question 14

Recapture of chattels

Answer 14

D has a legal privilege to use peaceful means to recover possession of chattel taken unlawfully, and to use reasonable, non deadly force if in fresh pursuit of the chattel taker
-Also a defense to assault and battery and false imprisonment

Question 15

Recapture of chattels-limitations and requirements

Answer 15

• D owner must make a timely demand for return of chattel
  -Exception: not required if making demand would be futile or dangerous
• D owner may recapture from original wrongdoer or a third person who knows the chattel was wrongfully obtained
  -Recapture is not available if chattel is in the hands of an innocent party
• Use of force: reasonable force may be used to recapture chattel only if in fresh pursuit of one who has wrongfully obtained possession
  -No deadly force or serious bodily harm permitted