Defenses to Intentional Torts Flashcards
for what intentional torts is consent a defense?
ALL intentional torts
what are the two requirements for consent to be a valid defense to intentional torts?
1) consent must be valid (plaintiff had capacity to consent), and
2) defendant acted within the scope of the plaintiff’s consent
what are some examples of people that do NOT have capacity to consent?
drunken people, severely mentally disabled people and very young children
what can persons of limited capacity consent to?
only to things within the scope of their understanding
what are some examples of people with limited capacity to consent?
older children and persons with mild intellectual disabilities
when will a plaintiff’s express consent NOT be a defense to defendant’s conduct? (3 exceptions)
1) plaintiff’s mistake that a defendant knew and took advantage of,
2) consent induced by fraud, or
3) consent obtained by duress
true or false: consent induced by fraud will be invalidated ONLY if it goes to an essential matter
TRUE (fraud as to collateral matters does not bar a consent defense)
true or false: consent by duress is OKAY when the duress is merely threats of future harm or future economic deprivation.
TRUE (future threats of harm/econ deprivation are not enough to invalidate consent)
what is implied consent for purposes of intentional torts’ defense?
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
when is consent implied by law?
when action is necessary to save a person’s life or some other important interest to person/property
what are the 3 protective privileges?
1) self defense
2) defense of others
3) defense of property
when can someone exercise a protective privilege? (timing)
only in the heat of the moment (NO revenge and NO preemption)
what 3 things must be true for a protective privilege to be a valid defense?
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
when is a protective privilege still a valid defense despite the privilegeholder’s mistake about whether a tort was being committed?
when the privilege holder had a reasonable belief that the threat was genuine (acted with reasonable accuracy)
what level of force may be used in exercising a protective privilege?
only that which is proportional to the tort being defended against
what is self defense?
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
under the majority rule, does a defendant generally have a duty to retreat before exercising self defense?
NO
generally, does the law impose a duty to retreat before using deadly force?
YES (if it can be done safely)
true or false: the law imposes a duty to retreat before using deadly force even when the actor is in their home.
FALSE (no duty to retreat before using deadly force if you’re in your home)
when is self defense available to the initial aggressor?
only when the other party respond’s to the initial aggressor’s nondeadly force with deadly force
true or false: self defense generally does NOT extend to third party injuries caused while the actor was defending themselves.
FALSE (DOES generally apply to third party injuries)
when may a person using self defense nonetheless be liable for third party injuries?
when they deliberately injured the third person in trying to protect themselves
true or false: a reasonable mistake as to the existence of danger is allowed when using self defense.
TRUE
