Defenses to Intentional Torts

Question 1

Consent

Answer 1

• Consent protects the interest to choose, and is subjective insofar as it depends on what the individual wants, not what would be best for the individual.
• Measured objectively by outward manifestations rather than internal feelings.
• Does not require reasonable person standard.

Question 2

Medical Consent

Answer 2

• medical providers can proceed without express consent when
  
  • the patient cannot consent
  • the risk of severe bodily harm or death is high
  • a reasonable person would consent under such circumstances and the Dr. has no reason to believe this person would not consent

Question 3

Self Defense

Answer 3

• have to have fear of death or serious bodily injury
• fear must be reasonable
• and the means must be reasonable

Use of deadly force only allowed in serious harm or death

Detached reflection is not expected (Tom and Jerry example) if you beleive reasonably but erronously that you are at risk you are likely still covered by self-defense

Physical characteristics of parties are taken into consideration

Question 4

Scope of Consent

Answer 4

• one may consent to one conduct, but not another conduct (Barbara A- consent to sex, but not baby)
• you consent to normal contacts (context dependent)
• fraud violates consent

Question 5

Objective vs Subjective Consent

Answer 5

• D must rely on objective cues from P’s behavior
• Question is whether or not P consented not whether a reasonable person would

Question 6

Defense of Property

Answer 6

• cannot use deadly force or force intended to cause serious bodily harm when someone enters your property unless you yourself are inflicting that harm and being at risk
• use more force at your own peril (Katko- springun)

Question 7

Employer/Shopkeeper Privilege

Answer 7

• Defense to intentional torts
• There are some privileges that people have that will allow them to skirt liability for things
• your boss can detain you if they suspect you of criminal activity
  
  • confinement and duration have to be reasonable
• you can detain other people but at your own peril
  
  • if you are correct it is lawful
  • if you are not, it’s a citizen’s arrest and you can be charged

Question 8

Private Necessity

Answer 8

• One may make reasonable use of another’s property to prevent damage or destruction to one’s own property
• You are liable for any damage to another’s property
• Parameters are an act of God (Vincent v. Lake Erie)

Question 9

Necessity

Answer 9

• Necessity happens in cases where the D has acted reasonably in damaging or destroying P’s property to prevent harm to himself or his property
• P did not act to cause the harm

Question 10

Public Necessity

Answer 10

• An absolute and complete defense to liability
• D has a right to make use of the P’s property without incurring liability for damages
• Reason: there are many people’s properties at risk and the P’s property was likely to be destroyed or damaged anywhow
• Ex. tearing down a house to prevent fire spreading

Question 11

Deterrence Resource Allocation

Answer 11

• Conditional liability (private necessity) encourages people to weigh the cost-benefit analysis
• Public necessity, it is inappropriate to hold people responsible as individuals because it is for the public benefit
• Often people precontract around this risk so courts don’t get involved
• Pre-existing relationships are often prohibitive

Question 12

“He started it” Principle

Answer 12

You are not liable for damage that occurs from defense

ex. if you defend yourself, and someone else is harmed during the process, you are not liable