Defenses to Intentional Torts

Question 1

Consent

Answer 1

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

Question 2

Capacity and consent

Answer 2

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

Question 3

Mistake and consent

Answer 3

Mistake will undo express consent if the defendant knew of and and took advantage of the mistake

Question 4

Consent and fraud

Answer 4

Consent induced by fraud will be invalidated if it goes to an essential matter, but not a collateral matter

Question 5

Consent and duress

Answer 5

Consent obtained by duress will be invalidated unless the duress is only threats of future action or future economic deprivation

Question 6

Implied consent

Answer 6

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

Question 7

Scope of consent

Answer 7

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

Question 8

Things to consider for protective privileges

Answer 8

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

Question 9

Types of privileged defenses

Answer 9

Self-defense

Defense of others

Defense of property

Reentry onto land

Recapture of Chattels

Question 10

Self-defense

Answer 10

When a person reasonably believes that they are being or are about to be attacked

May use force that is reasonably necessary to protect

Question 11

Duty to retreat

Answer 11

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

Question 12

Self-defense and initial aggressor

Answer 12

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

Question 13

Self-defense and third party

Answer 13

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

Question 14

Mistake and self-defense

Answer 14

A reasonable mistake as to the existence of the danger is allowed

Question 15

How much force and self-defense

Answer 15

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

Question 16

Defense of others

Answer 16

Can use force to defend another when they reasonably believe that the other person could have used force to defend themselves

Question 17

Defense of others and mistake

Answer 17

A reasonable mistake as to whether the other person is being attacked or has a right to defend themselves is permitted

Question 18

Defense of others and how much force

Answer 18

Defender may use as much force as they could have used in self-defense

Question 19

Defense of property

Answer 19

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

Question 20

Defense of property and entering with a privilege

Answer 20

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

Question 21

Defense of property and hot pursuit

Answer 21

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

Question 22

Defense of property and mistake

Answer 22

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)

Question 23

Defense of property and how much force

Answer 23

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

Question 24

Shopkeeper privilege

Answer 24

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

Question 25

Reentry onto land

Answer 25

Common law - one could use force to reenter land only when an intruder came into possession tortiously

Modern law - summary procedures like ejectment for recovering possession of real property so resort to self-help is no longer allowed

Question 26

Recapture of chattels

Answer 26

Same as reentry of land at common law - when another’s possession began lawfully, 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, like by theft

Question 27

Necessity

Answer 27

May interfere with the real property of another when
- it is reasonably and apparently necessary in an emergency to avoid injury from a natural or other force, and
- the threatened injury is substantially more serious than the invasion that is undertaken to avert it

Two types of necessity - public and private

Only a defense to property torts

Question 28

Public necessity

Answer 28

A defendant can raise public necessity as a defense if they acted to avert an imminent public disaster

Question 29

Private necessity

Answer 29

Can be a defense when the action was to prevent serious harm to a limited number of people

The actor must pay for any injury they cause unless the act was to benefit the property owner