Defenses To Intentional Torts Flashcards
Self- defense elements:
Apparent necessity: the privilege to act arises only where there is real danger, or a reasonable belief that there is danger. (Judged on the reasonable person standard)
Use of Reasonable Force: limited to the use of force which is, or reasonably appears to be, necessary for protection against the use of threatened harm. In other words, the force used must be equivalent to the threatened harm. This is judged by the reasonable person standard.
Self defense defined:
A person is privileged to use reasonable force to defend against harmful or offensive bodily contact - or against confinement. This privilege is depends on apparent necessity, rather than on actual reality. Thus if the defendant reasonably, but mistakenly believes they are in trouble, they are privileged to use self defense.
Define: consent
The actors’ subjective willingness in fact that an act or an invasion of an interest by another take place. Apparent (or objective) consent is based upon a reasonable appearance that the plaintiff consents. It goes to the idea that a defendant is entitled I rely upon reasonable appearances created by the plaintiff.
Elements of consent:
1) was there actual consent? (Consent put into writing)
2) was there apparent consent? (Reasonable appearance that plaintiff consented to defendants conduct)
Rule for Defense of Third Persons:
Most courts hold that if a person’s motive for harming another is preventing an immediate battery to a third person, then the person’s conduct may be justified as a privilege to defend another. Courts also allow the privilege to apply if the person reasonably but mistakenly acts against another.
Elements of Defense of Third Persons:
1) Apparent Necessity (held to the reasonable person standard)
2) Was the force used reasonable? (test is equivalency, deadly force only reasonable to prevent death)
Merchants privilege to investigate rule:
One who reasonable believes that another has taken goods without payment upon his premises, is privileged to detain him on the premises for the time necessary for a reasonable investigation of the facts.
Immunity from liability is allowed under merchants privilege to investigate if:
1) Reasonable cause to believe the person has stolen something
2) The manner of the detention and the attempt to detain were reasonable.
3) the length of time and the actions in the attempt to detain were reasonable.
Scope of Consent rules:
1) D is liable if they exceed the parameters of P’s consent.
2) In most cases, if P consents to the touching than there is no recovery for the injury.
Effective, apparent, objective, or implied consent elements:
1) Reasonable appearance that P consented to D’s conduct.
2) P must have the capacity to consent.
Rule for consent to operations:
Surgeries are general in nature, by consenting to the surgery, they have consented to additional procedures that come along with the initial surgery.
Rules for refusal to consent:
1) A competent person has the right to refuse medical treatment and that decision extends to all relevant decisions concerning one’s health.
2) The right is nearly absolute, but the state may over ride it when they have a compelling interest - such as children that would be left with no parent.
When can discipline be used as a defense?
The privilege of discipline as a defense to battery arises out the doctrine of Loco Parentis.
What is the test for if Loco Parentis can be used as a defense?
1) Was there necessity to use force?
2) Was the force used reasonable under the circumstances?
