Defenses to Intentional Torts

Question 1

for what intentional torts is consent a defense?

Answer 1

ALL intentional torts

Question 2

what are the two requirements for consent to be a valid defense to intentional torts?

Answer 2

1) consent must be valid (plaintiff had capacity to consent), and
2) defendant acted within the scope of the plaintiff’s consent

Question 3

what are some examples of people that do NOT have capacity to consent?

Answer 3

drunken people, severely mentally disabled people and very young children

Question 4

what can persons of limited capacity consent to?

Answer 4

only to things within the scope of their understanding

Question 5

what are some examples of people with limited capacity to consent?

Answer 5

older children and persons with mild intellectual disabilities

Question 6

when will a plaintiff’s express consent NOT be a defense to defendant’s conduct? (3 exceptions)

Answer 6

1) plaintiff’s mistake that a defendant knew and took advantage of,
2) consent induced by fraud, or
3) consent obtained by duress

Question 7

true or false: consent induced by fraud will be invalidated ONLY if it goes to an essential matter

Answer 7

TRUE (fraud as to collateral matters does not bar a consent defense)

Question 8

true or false: consent by duress is OKAY when the duress is merely threats of future harm or future economic deprivation.

Answer 8

TRUE (future threats of harm/econ deprivation are not enough to invalidate consent)

Question 9

what is implied consent for purposes of intentional torts’ defense?

Answer 9

consent which a reasonable person would infer from custom/usage or plaintiff’s conduct (apparent consent)
**EX = normal contact during sports, ordinary incidental contact, cutting someone’s hair at the salon

Question 10

when is consent implied by law?

Answer 10

when action is necessary to save a person’s life or some other important interest to person/property

Question 11

what are the 3 protective privileges?

Answer 11

1) self defense
2) defense of others
3) defense of property

Question 12

when can someone exercise a protective privilege? (timing)

Answer 12

only in the heat of the moment (NO revenge and NO preemption)

Question 13

what 3 things must be true for a protective privilege to be a valid defense?

Answer 13

the privilege holder must…
1) act in the heat of the moment
2) with a reasonable belief that the threat is genuine
3) and only exercise force proportional to the tort being defended against

Question 14

when is a protective privilege still a valid defense despite the privilegeholder’s mistake about whether a tort was being committed?

Answer 14

when the privilege holder had a reasonable belief that the threat was genuine (acted with reasonable accuracy)

Question 15

what level of force may be used in exercising a protective privilege?

Answer 15

only that which is proportional to the tort being defended against

Question 16

what is self defense?

Answer 16

when a person reasonably believes they are being/about to be attacked, they may use such force as is reasonably necessary to protect against injury

Question 17

under the majority rule, does a defendant generally have a duty to retreat before exercising self defense?

Answer 17

NO

Question 18

generally, does the law impose a duty to retreat before using deadly force?

Answer 18

YES (if it can be done safely)

Question 19

true or false: the law imposes a duty to retreat before using deadly force even when the actor is in their home.

Answer 19

FALSE (no duty to retreat before using deadly force if you’re in your home)

Question 21

when is self defense available to the initial aggressor?

Answer 21

only when the other party respond’s to the initial aggressor’s nondeadly force with deadly force

Question 22

true or false: self defense generally does NOT extend to third party injuries caused while the actor was defending themselves.

Answer 22

FALSE (DOES generally apply to third party injuries)

Question 23

when may a person using self defense nonetheless be liable for third party injuries?

Answer 23

when they deliberately injured the third person in trying to protect themselves

Question 24

true or false: a reasonable mistake as to the existence of danger is allowed when using self defense.

Answer 24

TRUE

Question 25

when may someone act in defense of others?

Answer 25

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

Question 26

true or false: a reasonable mistake as to whether the person is being attacked or has a right to defend themselves IS allowed for defense of others.

Answer 26

TRUE (mistake won’t defeat the defense)

Question 27

how much force can be used in defense of others?

Answer 27

only as much force as they could have used in self defense if they were the one threatened with the injury

Question 28

what is defense of property?

Answer 28

one may use reasonable force to prevent the commission of a tort against their real or personal property

Question 29

what must happen before you can use force to defend your property?

Answer 29

a request to desist or leave must be made before using force

Question 30

when do you NOT have to request that the tortfeasor desist/leave before using force to defend your property?

Answer 30

when it is clearly futile or dangerous to do so

Question 31

true or false: generally, the defense of property defense does NOT apply ONCE the tort has been committed.

Answer 31

TRUE

Question 32

what is the one exception to the general rule that you may not use force to defend your property after a tort has been committed against it?

Answer 32

when in hot pursuit of someone who has tortiously dispossessed the owner of their chattels
**RATIONALE = tort is viewed as being still in progress if defendant is in the act of fleeing

Question 33

true or false: defense is NOT available against someone with a privilege to be on the land/possess chattels.

Answer 33

TRUE (privilege supersedes the privilege of the possessor to defend their property)

Question 34

true or false: generally, a mistake as to whether an entrant has a privilege that supersedes the possessor’s right to defend will NOT bar the excuse of defense of property.

Answer 34

FALSE (this kind of mistake will bar defense of property excuse)

Question 35

true or false: mistakes as to whether or not an intrusion occurred or request to desist is required will NOT bar excuse of defense of property.

Answer 35

TRUE (these mistakes won’t bar the defense)

Question 36

when will a possessor’s mistake as to an entrant’s superseding privilege NOT bar a defense to property excuse? (exception to general rule)

Answer 36

when the entrant conducts the entry so as to lead the possessor to reasonably believe it is not privileged (ie – refusing to say what the necessity is)

Question 37

true or false: deadly force may be used in defense of property

Answer 37

FALSE!!!
(deadly force can only be used when a person, not just property, is sufficiently threatened)

Question 38

what level of force is allowed for defense of property?

Answer 38

only reasonable force

Question 39

when may a possessor use force that causes serious bodily harm?

Answer 39

only when the invasion of property entails a serious threat of bodily harm (proportional response)

Question 40

true or false: it is NOT okay to set up deadly traps/devices in defense of property

Answer 40

TRUE (no deadly force!)

Question 41

when may a shopkeeper detain a suspected shoplifter? (shopkeeper’s privilege) (4 rqmts)

Answer 41

can detain when:
1) shopkeeper reasonably believes there’s been a theft,
2) the detention is conducted in a reasonable manner (ie – no deadly force),
3) detention is for a reasonable period of time, and
4) detention is only for the purpose of making an investigation

Question 42

true or false: under modern law, resorting to self help to reenter/repossess wrongfully taken land are NO LONGER allowed.

Answer 42

TRUE (must go thru procedures like ejectment, quiet title, etc)

Question 43

what is the defense of necessity?

Answer 43

a person may interfere with prop when:
1) it is reasonably and apparently necessary in an emergency to avoid injury from a natural or other force and
2) the threatened injury is substantially more serious than the invasion that is committed to avert it

Question 44

what are the two types of necessity?

Answer 44

1) public necessity
2) private necessity

Question 45

when can a defendant raise a public necessity defense?

Answer 45

only if they acted to avert an “imminent public disaster” (would harm a large amount of ppl)
**NOTE = this is an absolute defense (no liability)

Question 46

when can a defendant raise a private necessity defense?

Answer 46

when the action was done to prevent serious harm to a limited number of people, and the actor must pay for any injury they cause
**NOTE = this is a limited/qualified defense

Question 47

what kinds of damages is a defendant raising private necessity still liable for?

Answer 47

only compensatory damages (not liable for nominal/punitive damages)

Question 48

how long can a defendant remain on someone’s property due to necessity?

Answer 48

can remain as long as the emergency continues (called “right of sanctuary”)