Defenses to Intentional Torts

Question 1

What is a defense to Intentional Torts

Answer 1

Consent.

Question 2

Can one consent to a criminal act?

Answer 2

No.

Question 3

Consent testing areas

Answer 3

1) Was there a valid consent?
2) Did Defendant stay within bounds of consent?

Question 4

What is required for consent?

Answer 4

Capacity.

Question 5

Who doesn’t have capacity?

Answer 5

1) Drunk people
2) Very young children

Question 6

Who has limited capacity and what does it mean?

Answer 6

1) older children
2) Persons with mild intellectual disabilities

Means they can only consent to things within scope of their understanding.

Question 7

What is the difference between capacity and consent in intentional Torts?

Answer 7

Everyone has the capacity to commit a tort, but not everyone has the capacity to consent to it.

Question 8

What are the exceptions to actual consent?

Answer 8

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.

Question 9

What is implied consent?

Answer 9

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

Question 10

What happens if D exceeds scope of consent given?

Answer 10

If they commit a more invasive intrusion or invade a different interest then Consent given, may be liable.

Question 11

What are protective privileges?

Answer 11

Defense of self, others, or property

Question 12

When are Protectibve Priv. Available?

Answer 12

Preventing the commission of a tort. Torts already committed do not qualify.

Question 13

What to ask when Protective privilege involved?

Answer 13

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?

Question 14

What is self defense in Torts?

Answer 14

1) When they reasonably believe
2) They are being or about to be attacked.

Question 15

When is self defense available in the majority rule?

Answer 15

There is no duty to retreat before using self

Question 16

What is the modern trend with Self-Defense

Answer 16

Modern imposes a duty to retreat before deadly force if this can be done safely.

Question 17

What is the exception to the modern trend’s rule on self defense?

Answer 17

No duty to retreat before using self-defense is actor is in their home.

Question 18

Where does self defense extend?

Answer 18

Third Party injuries caused while actor was defending themselves.
UNLESS
Actor deliberately injured third party in trying to protect themselves

Question 19

What mistakes are allowed in self defense?

Answer 19

A reasonable mistake to the existence of danger.

Question 20

How much force?

Answer 20

Reasonable force to prevent harm, including deadly.

Question 21

When is Self Defense of others allowed?

Answer 21

When an actor reasonably believes that the other person would have been able to use self defense force for themselves.

Question 22

What type of mistake is allowed in defense of others?

Answer 22

1) A reasonable mistake as to whether other person is being attacked,
2) or whether person a right to defend themselves.

Question 23

When is self defense allowed with property?

Answer 23

Reasonable force is allowed use to prevent commission of tort against real or personal property.

Question 24

What must you do to be able to use self defense for property?

Answer 24

Unless it would clearly be futile or dangerous, actor must first make a request to desist or leave

Question 25

When does ability to use self defense of property extinguish?

Answer 25

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.

Question 26

When is self defense not available?

Answer 26

When someone has a privilege to enter land (necessity, recapture of chattels)
Privilege will supersede privilege of land posssor to defend property.

Question 27

What Are mistakes allowed in self defense of property?

Answer 27

Reasonable mistake as to whether intrusion has occurred or whether a request to desist has been made.

Question 28

What mistakes are not allowed in self defense of property? Unless?

Answer 28

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.

Question 29

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?

Answer 29

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.

Question 30

Self defense on re entry to land in common law?

Answer 30

Force to reenter land only when intruder came into possession by Trespass.

Question 31

Self defense on reentry to land in modern times?

Answer 31

Must use procedures like ejectment. No self help allowed.

Question 32

Self Defense during recapture of Chattel?

Answer 32

If lawfully, only peaceful means to recover.
Reasonable force can be used in hot pursuit of someone wrongfully taking chattel.

Question 33

What is Necessity?

Answer 33

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.

Question 34

What is public neccessity?

Answer 34

D acted to avert imminent public disaster.

Question 35

Private Necessity?

Answer 35

Prevent serious harm to a limited number of people.
Actor must pay for any injury caused. Unless it benefited property owner.

Question 36

What types of torts is neccessity a defense to?

Answer 36

Propety