Defenses to Intentional Torts Flashcards
Consent
Plaintiff’s consent to the defendant’s conduct is a defense
- but the majority view is that one cannot consent to a criminal act
Valid consent and defendant was within scope of consent
Capacity and consent
Individuals without capacity are deemed incapable of consent
- drunken persons and very young children
Limited capacity - older children and mild intellectual disabilities - can consent, but only to things within the scope of their understanding
Capacity is not a defense to intent element because everyone has capacity to commit a tort, but not everyone has the capacity to consent to a tort
Mistake and consent
Mistake will undo express consent if the defendant knew of and and took advantage of the mistake
Consent and fraud
Consent induced by fraud will be invalidated if it goes to an essential matter, but not a collateral matter
Consent and duress
Consent obtained by duress will be invalidated unless the duress is only threats of future action or future economic deprivation
Implied consent
Apparent consent is what a reasonable person would infer from custom and usage, or the plaintiff’s conduct
- normal contacts inherent in body-contact sports
Consent implied by law - action is necessary to save a person’s life or some other important interest in person or property
Scope of consent
If the defendant exceeds the scope of consent - committing a more intrusive invasion or by invading a different interest than the one the plaintiff referenced - may be liable
Things to consider for protective privileges
Involves the defense of self, others, or property, need to consider:
Is the privilege available?
- apply only for preventing the commission of a tort so already committed torts do not qualify
Is a mistake permissible as to whether the tort being defended against is actually being committed?
Was a proper amount of force used?
Overall, whether the defendant’s response itself to the plaintiff’s tort constituted a tort against the plaintiff or instead was privileged by one of the defenses
Types of privileged defenses
Self-defense
Defense of others
Defense of property
Reentry onto land
Recapture of Chattels
Self-defense
When a person reasonably believes that they are being or are about to be attacked
May use force that is reasonably necessary to protect
Duty to retreat
Majority rule is that there is no duty to retreat
Modern trend imposes a duty to retreat before using deadly force if this can be done safely, unless the actor is in their home
Self-defense and initial aggressor
Self-defense is not available to the initial aggressor unless the other party responds to the aggressor’s non deadly force by using deadly force
Initial aggressor imposes non deadly force - plaintiff responds to initial aggressor with deadly force - initial aggressor can claim self-defense
Self-defense and third party
Self-defense may extend to third-party injuries caused while the actor was defending themselves
An actor might be liable to third person if they deliberately injured the third person in trying to protect themselves
Mistake and self-defense
A reasonable mistake as to the existence of the danger is allowed
How much force and self-defense
One may use only the force that reasonably appears to be necessary to prevent the harm, which includes deadly force
Defense is lost if more force than reasonably necessary is used
Defense of others
Can use force to defend another when they reasonably believe that the other person could have used force to defend themselves
Defense of others and mistake
A reasonable mistake as to whether the other person is being attacked or has a right to defend themselves is permitted
Defense of others and how much force
Defender may use as much force as they could have used in self-defense
Defense of property
Can use reasonable force to prevent the commission of a tort against their real or personal property
- does not apply once tort has been committed
A request to desist or leave must first be made unless would clearly be futile or dangerous
Defense of property and entering with a privilege
Defense of property is not available against someone who enters the land with a privilege
Whenever an actor has a privilege to enter onto the land because of necessity, recapture of chattels, etc., that privilege will supersede the privilege of the land possessor to defend their property
Defense of property and hot pursuit
One may use force in hot pursuit of another who has tortiously dispossessed the owner of their chattels because the tort is viewed as still in progress if the defendant is in the act of feeling
Defense of property and mistake
Reasonable mistake is allowed as to whether an intrusion occurred or whether a request to desist is required
Not allowed as to whether the entrant has a privilege that supersedes the defense of property right,
- unless the entrant conducts the entry so as to lead the defendant to reasonably believe it is not privileged (like refusing to say what the necessity is)
Defense of property and how much force
Reasonable force
But one may not use force causing death or serious bodily harm unless the invasion of property also entails a serious threat of bodily harm
Same principle makes it impermissible to set deadly mechanical devices or traps like spring guns or vicious dog
Shopkeeper privilege
A shoekeeper has a privilege to detain a suspected shoplifter for investigation
For the privilege to apply, following conditions must be satisfied
- reasonable belief as to the fact of theft
- detention must be conducted in a reasonable manner and only non deadly force can be used
- detention must only be for a reasonable period of time and only for the purpose of making an investigation
