Defenses to Intentional Torts

Question 1

Consent

Answer 1

A defense to all intentional torts

• D must demonstrate that P consented to D’s Otherwise tortious conduct

Express consent - P gives D verbal or written consent

• nullified by duress, fraud or mistake

Implied consent - D can reasonably infer P’s consent based on custom or P’s observable conduct

• Often arises if P Participates in an activity or goes to a place where minor torts are common (ie tackle football, P has given implied consent to certain forms of battery)
• Facts must indicate that based on P’s objective conduct, D was reasonable in interpreting P’s consent

Scope of consent

• D can be held liable for conduct that exceeds the scope of P’s valid consent (express or implied)
  *

Question 2

Self Defense

Defense of Others

Defense of Property

Answer 2

Self-defense, defense of others, and defense of property are protective privilege defenses

Requirements for all protective privilege defenses:

1. Reasonable belief - D must reasonably believe that a tort is being or about to be committed
2. Proper timing - the harm defended against must be in progress or imminent; if it is already completed, no defense
3. Reasonable force - D’s force must be proportionate to the harm threatened
   
   • Deadly force - only allowed if D reasonable believes a life is in danger (never permitted to protect property alone)

Self Defense

• No duty to retreat
• Reasonble mistake by D is okay
• Only available to the initial aggressor if D responds with disproportionate force

Defense of others - D steps into the shoes of the intended targed.

• D may not use greater force than the inteded target could have reasonable used

Defense of property

• Unavailable if the initial actor had a privilege to enter the land (ie recapturing chattel)
• Reasonable mistake is only allowed as to whether the intrusion occured, not as to whether a privilege existed.

Question 3

Necessity

Answer 3

A defense to torts against property (trespass to land, trespass to chattel, conversion) in which D damages P’s property in an effort to avoid a greater danger.

Requirements:

1. D’s interference with P’s property must be reasonably necessary to avoid immediate threatened injury
2. Threatened inury must be more serious than the interference undertaken to avert it

Public necessity - absolute defense

• D’s invasion of P’s property must be reasonably necessary to protect the community or a large group of people
• absolute defense P cannot recover any damagers

​Private necessity - limited defense

• D invades P’s property to protect himself or his property
• limited defense P can recover actual damages, but not punitive or nominal damages

Question 4

Recapture of chattels

Answer 4

Recapture of chattels is a defense to trespass: D may use peaceful means to recover possession of chattel taken unlawfully.

Limitations & Requirements:

• D - owner must make a timely demand for return of chattel
  
  • Exception - not required if doing so is futile or dangerous
• D - owner may recapture from the original wrongdoer or a third person who obtained the chattel
• Privelege to enter depends on who possesses property:
  
  • Wrongdoer’s property - reasonable time and manner
    
    • D-owner may enter at a reasonable time to reclaim chattel in a reasonable manner
  • Innocent person’s property - notice required
    
    • D - owner must first give notice to landowner
      
      • If landowner refuses to allow entry, D may enter at a reasonable time and in a peaceful manner
    • D does not have a privilege to enter another’s land if his chattel is on the perperty through his own fault