Defenses to Intentional Torts Flashcards
Three main defenses
1) Consent
2) Protective Privleges (three)
3) Necessity
Consent
Defense to all intentional torts
P who gave consent must have had legal capacity
-drunk, young, retards, insane
–not all or nothing. depending on issue, can consent to one act but can’t to another
—haircut vs surgery
Can be actual or implied
Action must be within scope of consent
Express/actual consent exceptions
1) fraud/duress
2) mistake IF D knew of and took advantage of mistake
Implied COnsent
Custom or usage; body language;
all reasoanble person standard
the Protective Privleges
1) Self defense
2) Defense of others
3) Defense of property
TIMING: In process or imminent. No preemption, no revenge.
ACCURACY: Party must have reasonable BELIEF that threat is genuine
Reasonable force and protective privleges
Force necessary under the circumstances. Proportional.
Deadly force (knife) = deadly force (gun)
Can NEVER use deadly force to protect property.
Shopkeepers Privilege (Defense of property)
Allows a merchant/store owner to detain customer with reasonable belief of shoplifting
Reasonable scope/manner/time etc.
Duty to retreat (protective privleges)
Majority: none
Tresspass and threat to person
In some jurisictions, there’s a PRESUMPTION that it’s reasonable to PRESUME a deadly threat if someone trespasses onto your dwelling.
Necessity Defenses
1) Public necessity
2) Private necessity
ONLY apply to PROPERTY torts.
Public necessity
D acts in emergency to protect COMMUNITY.
ABSOLUTE defense. Tort excused.
ONLY property torts
Private Necessity
D acts in emergency to protect OWN INTERESTS.
LIMITED/QUALIFIED defense
–so must pay compensatory damages
–but NOT liable for nominal or punitive damages
–can remain as long as emergency continues
ONLY property torts
