Defenses to Intentional Torts Flashcards
What is a defense to Intentional Torts
Consent.
Can one consent to a criminal act?
No.
Consent testing areas
1) Was there a valid consent?
2) Did Defendant stay within bounds of consent?
What is required for consent?
Capacity.
Who doesn’t have capacity?
1) Drunk people
2) Very young children
Who has limited capacity and what does it mean?
1) older children
2) Persons with mild intellectual disabilities
Means they can only consent to things within scope of their understanding.
What is the difference between capacity and consent in intentional Torts?
Everyone has the capacity to commit a tort, but not everyone has the capacity to consent to it.
What are the exceptions to actual consent?
1) mistake if D knew and took advantage of it
2) Consent induced by fraud will be invalidated if it goes to essential matter, but not a collateral one
3) Consent obtained by duress unless duriess is only threats of future action or future economic deprivation.
What is implied consent?
Apparent consent
2) which a reasonable person
3) would infer from custom or usage
4) or plaintiff’s conduct
Saving someone’s life/playing sports
What happens if D exceeds scope of consent given?
If they commit a more invasive intrusion or invade a different interest then Consent given, may be liable.
What are protective privileges?
Defense of self, others, or property
When are Protectibve Priv. Available?
Preventing the commission of a tort. Torts already committed do not qualify.
What to ask when Protective privilege involved?
1) Is it available?
2) Is a mistake permissible as to whether the tort being defended (battery Trespass etc) is actually being committed?
3) Was proper force used?
What is self defense in Torts?
1) When they reasonably believe
2) They are being or about to be attacked.
When is self defense available in the majority rule?
There is no duty to retreat before using self
What is the modern trend with Self-Defense
Modern imposes a duty to retreat before deadly force if this can be done safely.
What is the exception to the modern trend’s rule on self defense?
No duty to retreat before using self-defense is actor is in their home.
Where does self defense extend?
Third Party injuries caused while actor was defending themselves.
UNLESS
Actor deliberately injured third party in trying to protect themselves
What mistakes are allowed in self defense?
A reasonable mistake to the existence of danger.
How much force?
Reasonable force to prevent harm, including deadly.
When is Self Defense of others allowed?
When an actor reasonably believes that the other person would have been able to use self defense force for themselves.
What type of mistake is allowed in defense of others?
1) A reasonable mistake as to whether other person is being attacked,
2) or whether person a right to defend themselves.
When is self defense allowed with property?
Reasonable force is allowed use to prevent commission of tort against real or personal property.
What must you do to be able to use self defense for property?
Unless it would clearly be futile or dangerous, actor must first make a request to desist or leave
When does ability to use self defense of property extinguish?
If the tort has been committed, unless
1) the actor is in hot pursuit of person
2) Person tortiously dispossessed actor of their chattel
Why? If actor is fleeing, tort is still in progress.
When is self defense not available?
When someone has a privilege to enter land (necessity, recapture of chattels)
Privilege will supersede privilege of land posssor to defend property.
What Are mistakes allowed in self defense of property?
Reasonable mistake as to whether intrusion has occurred or whether a request to desist has been made.
What mistakes are not allowed in self defense of property? Unless?
Actor cannot mistake whether entrant has a privilege like necessity.
Unless entrant has conducts entry so as to lead defendant to reasonably believe entrant is not privileged.
How much force can be used in self defense of property? What force can’t be used? Unless? What principle does this also apply to?
Reasonable force.
No force causing serious bodily harm or death.
Unless invasion also entail threat of bodily harm to actor.
Actor setting deadly mechanical devices or traps to protect property.
Self defense on re entry to land in common law?
Force to reenter land only when intruder came into possession by Trespass.
Self defense on reentry to land in modern times?
Must use procedures like ejectment. No self help allowed.
Self Defense during recapture of Chattel?
If lawfully, only peaceful means to recover.
Reasonable force can be used in hot pursuit of someone wrongfully taking chattel.
What is Necessity?
A person
1) may interfere with RPP of another
2) When reasonably and apparently neccessary
3) in emergency to avoid injury from a natural or other force
4) when threatened injury is substantially more serious than the invasion.
What is public neccessity?
D acted to avert imminent public disaster.
Private Necessity?
Prevent serious harm to a limited number of people.
Actor must pay for any injury caused. Unless it benefited property owner.
What types of torts is neccessity a defense to?
Propety
