Defenses to Intentional Torts

Question 1

Consent - key considerations

Answer 1

The plaintiffs consent to the defendants conduct is a defense, but the majority view is at one cannot consent to a criminal act. And consent fact pattern raises two questions:

Was there a valid consent?

Did the defendants stay within the boundaries of the consent?

Question 2

Consent - capacity required

Answer 2

Individuals without capacity are deemed in capable of consent, for example, drunken persons, and very young children. Persons with limited capacity, such as older children and persons with mild intellectual disabilities, can consent, but only to things within the scope of their understanding.

Remember, everyone has a capacity to commit a tort, but not everyone has a capacity to consent to a tort

Question 3

Consent - express consent

Answer 3

The defendant is not liable if the plaintiff expressly consents using words, oral, or written to the defendants conduct.

Exceptions include: 1) mistake will undo express consent if the defendant knew of and took advantage of the mistake, 2) consent induced by fraud will be invalid if it goes to essential matter, but not a collateral matter, 3) consent, obtained by the rest, will be invalid, unless the is only threat of future action or future, economic deprivation.

Question 4

Consent - implied consent

Answer 4

Parent consent is that which a reasonable person would infer from custom and usage or the plaintiff conduct, for example, normal contacts inherent and body contacts 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

Consent - exceeding consent that was given

Answer 5

If the defendant exceeds the scope of consent by committing a more intrusive invasion, or by invading a different interest than the one the plaintiff referenced, they may be liable. 

Question 6

Protective privileges - 3 questions

Answer 6

When a question involves the defense of self, others, or property, ask the following three questions:

Is the privilege available? These privileges apply only for preventing the commission of a tort. Already committed towards do not qualify.

Is a mistake permissible as to whether being defended against is actually being committed?

Was a proper amount of force used?

Question 7

Self-defense - generally

Answer 7

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

Question 8

Self-defense - when is defense available?

Answer 8

The majority rule is that there is no duty to retreat. The modern trend imposes of duty to retreat before using deadly force if this can be done safely, unless the attacker is in their home.

Self-defense is not available to the initial aggressor unless the other party responds to the aggressor non-deadly forced by using deadly force.

Self-defense extend to third-party injuries that are caused while the actor was defending themselves. And actor may be liable to a third person if they deliberately entered the third person and trying to protect themselves.

Question 9

Self-defense - is mistake allowed

Answer 9

A reasonable mistake as to the existence of the danger is allowed.

Question 10

Self-defense - how much force may be used?

Answer 10

One may use only that forest that reasonably appears to be necessary to prevent the harm, including deadly force. If more force than reasonably necessary is used, the defense is lost. 

Question 11

Defense of others - when is defense available

Answer 11

One may use for to offend another when they reasonably believe that the other person could’ve used for defend themselves.

Question 12

Defense of others - is mistake allowed

Answer 12

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

Question 13

Defense of others - how much force may be used

Answer 13

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

Question 14

Defense of property - when is defense available

Answer 14

One may use reasonable force to prevent the commission of a tort against their real or personal property. A request to assist or leave must first be made unless it’s clear that it would be futile or dangerous. The defense does not apply once the tort has been committed. However, one may use force in hot pursuit of another who has tortiously dispossessed the owner of their chattels because the tort is viewed as still in progress if the defendant is in the act of fleeing.

Question 15

Defense of property - is mistake allowed

Answer 15

Reasonable mistake is allowed as to whether an intrusion has occurred or whether or request to desist is required. A mistake is not allowed as to whether the entrance has privilege like necessity that supersedes the defense of property right, unless the entrance conducts the entry so us to lead the defendant to reasonably believe it is not privileged, such as refusing to say what the necessity is.

Remember that the defense is not available against one with privilege. Whenever an actor has privileged to enter onto the land of another because of necessity, recapture of chattels, etc. that privilege will supersede the privilege of the land possessor to defend their property. 

Question 16

Defense of property - how much force may be used

Answer 16

Reasonable force may be used. However, one may not use force, causing death or serious bodily harm, unless the invasion of property also entails a serious threat of bodily harm. The same principle makes it impermissible to set deadly mechanical devices or traps to protect property. 

Question 17

Defense of property - shopkeeper’s privilege

Answer 17

A shopkeeper has a privilege to detain a suspected shoplifter for investigation. For the privilege to apply, the following conditions must be satisfied:

There must be a reasonable belief as to the fact of theft

The detention must be conducted in a reasonable manner and only non-deadly force can be used

The detention must be only for a reasonable period of time and only for the purpose of making an investigation 

Question 18

Protective privileges - reentry onto land

Answer 18

At Common law, one could use force to re-enter land only when an intruder came into possession tortiously, such as by trespass. Under modern law, there are summary procedures, such as ejectment, for recovering possession of real property. Hence, resort to self-help is no longer allowed. 

Question 19

Protective privileges - recapture of chattels

Answer 19

The basic rule is the same as that for re-entry of land at Common law: when another possession began lawfully, for example, a conditional sale, one may use only peaceful means to recover the chattel. Reasonable force may use to recapture a chattel only when in hot pursuit of one who is obtained possession, wrongfully, for example, by theft. 

Question 20

Necessity - generally

Answer 20

A person may interfere with the real or personal property of another when it is reasonably and apparently necessary and an emergency to avoid injury from a natural or other force, and when a threatened injury is substantially more serious than the invasion that is undertaken to a verdict. There are two types of necessity, public and private.

Question 21

Necessity - Public

Answer 21

A defendant can raise public necessity as a defense if they acted to avert an eminent public disaster.

Public necessity is an absolute defense. 

Question 22

Necessity - private

Answer 22

Private necessity can be a defense when the action was to prevent serious harm to a limited number of people. Under private necessity, the actor must pay for any injury they caused, unless the act was to benefit the property owner.

It is a legal privilege to enter someone’s land, no punitive or no damages. Only actual damages caused. The privilege to stay last until the emergency discontinues.