Defenses to Intentional Torts

Question 1

Consent

Answer 1

• pl’s consent to def’s conduct is a defense, but majority view is that one cannot consent to a criminal act

Key Q’s for consent fact patterns:
- was there a valid consent?
- did def stay w/in the boundaries of that consent?

Question 2

Consent - Capacity

Answer 2

• indivs w/o capacity are considered incapable of consent
  -> ex: very young children, drunk people
• people w/ limited capacity (ex: older children + those with mild intellectual disabilities) can consent, but only to things w/in the scope of their understanding

Question 3

Express Consent

Answer 3

• aka actual consent
• def not liable if pl expressly consents to def’s conduct

Exceptions:
1) mistake will undo express consent IF def knew of + took advantage of the mistake
2) consent induced by fraud invalidated if it goes to an essential matter
-> wouldn’t be invalidated though if it went to a collateral matter
3) consent obtained by duress will be invalidated
-> UNLESS the duress is only threats of future action or future economic deprivation

Question 4

Implied Consent

Answer 4

• that which a reasonable person would infer from custom + usage OR pl’s conduct
  -> ex: normal contacts inherent in body-contact sports, ordinary incidental contact, etc.
• consent implied by law arises when action is necessary to save a person’s life or some other important interest in person or property

Question 5

Scope of Consent

Answer 5

• def may be liable if exceeds scope of consent
  -> i.e. def commits more intrusive invasion or invades different interest than one pl referenced

Question 6

Types of Protective Privileges

Answer 6

• self-defense
• defense of others
• defense of property
• reentry onto land
• recapture of chattels

Question 7

Key Q’s for Protective Privileges

Answer 7

• is the privilege available?
  -> the protective privileges apply only for preventing commission of a tort, already committed torts don’t qualify (no retaliatory torts allowed)
• is mistake permissible as to whether the tort being defended against (battery, trespass, etc.) is actually being committed?
• was a proper amount of force used?
• keep in mind distinguishing between parties - usually for these issues, pl committed a tort initially that isn’t actually at issue + q is really whether def’s response constituted a tort or was privileged conduct

Question 8

Self-Defense

Answer 8

• when a person reasonably believes that they’re being or are about to be attacked, they may use such force as is reasonably necessary to protect against injury

Question 9

Self-Defense - When Is It Available?

Answer 9

• majority rule says no duty to retreat
  -> modern trend though says duty before using DEADLY force if this can be done safely, unless actor is in their home
• not available to initial aggressor unless other party respond’s to aggressor’s nondeadly force w/ deadly force
• may extend to third-party injuries (if you injure third parties while defending yourself, you may have a defense)
  -> BUT might be liable to third person if deliberately injured the third person in trying to protect self

Question 10

Self-Defense - Mistake

Answer 10

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

Question 11

Self-Defense - Extent of Force Allowed

Answer 11

• can only use force that appears to be necessary to prevent the harm (including deadly force)
• if more force than is reasonably necessary is used, the defense is lost

Question 12

Defense of Others - When Available?

Answer 12

• can use force to defend another when reasonably believe the other person could’ve used force to defend themselves

Question 13

Defense of Others - Mistake

Answer 13

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

Question 14

Defense of Others - Extent of Force Allowed

Answer 14

• defender may use as much force as they could have used in self-defense if they were the one threatened with the injury

Question 15

Defense of Property - When Available?

Answer 15

• can use reasonable force to prevent commission of a tort against one’s real or personal property
• request to desist or leave must be made first unless clear it would be futile + dangerous
• the defense does not apply once the tort has already been committed
  -> BUT one can use force in hot pursuit of someone who has tortiously dispossessed owner of chattels b/c the tort is viewed as still in progress if def is in act of fleeing

Question 16

Defense of Property - Mistake

Answer 16

• reasonable mistake is allowed as to whether an intrusion has occurred or whether a request to desist is required
• NOT allowed as to whether the entrant has a privilege (ex: necessity) that supersedes the defense of property right, unless the entrant conducts the entry so as to lead def to reasonably believe it’s not privileged (ex: by refusing to say what the necessity is)

Question 17

Defense of Property - How Much Force May Be Used?

Answer 17

• reasonable force
• BUT can’t use force causing death or seriously bodily harm unless the invasion of property also entails serious threat of bodily harm
  -> under this principle, it is also impermissible to set deadly mechanical devices or traps to protect property
  -> note that there is typically NO right to use deadly force to protect one’s home in most cases - cases where deadly force is used in response to home invasions often involve corresponding threats to the occupants (actually self-defense, not defense of property)

Question 18

Shoplifting Detentions

Answer 18

• shopkeeper has privilege to detain suspected shoplifter for investigation

For this privilege to apply, need the following:
- reasonable belief as to the fact of theft
- detention conducted in a reasonable manner + only nondeadly force can be used
- detention must be only for a reasonable period of time + only for purpose of making an investigation

Question 19

Reentry onto Land

Answer 19

• at common law, you COULD use force to reenter land when an intruder came into possession tortiously (ex: by trespass)
• under modern law, there are summary procedures like ejectment for recovering possession of real property -> NO self-help allowed

Question 20

Recapture of Chattels

Answer 20

• basic rule same as for reentry of land at common law
• when another’s possession began lawfully (ex: 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 (ex: by theft)

Question 21

Necessity

Answer 21

• only a defense to property torts
• person may interfere w/ real or personal property of another when reasonably and apparently necessary in an emergency to avoid injury from a natural or other force + when the threatened injury is substantially more serious than the invasion that is undertaken to avoid it

Question 22

Public Necessity

Answer 22

• def can raise public necessity as a defense if they acted to avert an “imminent public disaster”

Question 23

Private Necessity

Answer 23

• can be a defense when the action was to prevent serious harm to a limited number of people
• actor must pay for any injury they cause (unless the act was to benefit the property owner)