Defenses to Intentional Torts Flashcards
First issue with consent is always. . .
Legal capacity.
True or False? Legal capacity is always needed to give consent.
Yes
The majority view is that one can/cannot consent to a criminal act.
Cannot
Two types of consent?
Express
Implied
Express consent is . . .
An express declaration of consent to something that would otherwise be a tort.
“Come on in” is an example of . . .
Express consent.
Express consent is negated if it is obtained through . . .
Fraud or duress.
Implied consent arises in one of two ways:
Usage (custom consent)
Defendant’s Reasonable Interpretation of Plaintiff’s Objective Conduct and Surrounding Circumstances (body language consent)
Most common example of implied consent by custom?
Playing sports
Defendant’s Reasonable Interpretation of Plaintiff’s Objective Conduct and Surrounding Circumstances (body language consent) allows us to rely on . . .
Social cues
All consent has a scope. If D exceeds the consent of scope given, he . . .
Is back to committing a tort.
Implied consent by law arises when . . .
Action is necessary to save a person’s life or some other important interest in person or property.
What are the three Protective privileges?
Self Defense
Defense of others
Defense of property
You may respond to a threat only when the threat is . . .
Imminent OR in progress.
You may not use protective privileges once . . .
The threat is over.
In order to invoke a protective privilege, you need a reasonable belief . . .
That the threat is legitimate
You do/don’t lose a protective privilege if you make a reasonable mistake.
Don’t
When using a protective privilege, the response must be this and no more.
Necessary under the circumstance.
When using a protective privilege, you must use _____ force.
Proportional.
Since protective privilege is a rule of symmetry, if someone attempts to use deadly force on you, you may do so in return. T or F?
True
You can/cannot use deadly force to protect property.
Cannot
Necessity Defenses: Name the two.
Public Necessity Defense
Private Necessity Defense
Necessity Defenses relate only to what sort of torts?
Property
When does a “public necessity” defense arise?
When D invades P’s property in an emergency to protect the community as a whole or a significant group of people.
In a “public necessity” problem, there will be some sort of serious emergency. The good samaritan is/isn’t on the hook for damages.
Isn’t
Public Necessity Defense is a complete or partial defense to property torts?
Complete
When does a private necessity defense arise
D invades P’s property to protect an interest of his own.
Private Necessity Defense is a complete or partial defense to property torts?
Partial.
Two legal consequences of Private Necessity Defense?
D remains liable for actual property damage (but not nominal or punitive damages)
As long as the emergency continues, the plaintiff cannot throw the defendant off the land.
When successfully pleading a Private Necessity Defense, the D D remains liable for ____________, but not for ____ or _____ damages)
Actual property damage
Not nominal or punitive
D is a cross-country hiker in rural MN in February. Suddenly, a blizzard arises and the weather becomes hazardous. D realizes that if he doesn’t take shelter, he will die. All D can see is a lone farmhouse on a prairie a half-mile away.
Dave knocks, but no one answers. Dave breaks in and spends the night. He leaves the neck morning.
Owner sees the damage the next day and sues Dave for the damage Dave inflicted when breaking in. Successful? Explain.
Owner will be successful in getting actual damages for the window. Private Necessity Defense allows for recovery of actual property damage.
D is a cross-country hiker in rural MN in February. Suddenly, a blizzard arises and the weather becomes hazardous. D realizes that if he doesn’t take shelter, he will die. All D can see is a lone farmhouse on a prairie a half-mile away.
Dave knocks, but no one answers. Dave realizes the door is open. He walks in, spends the night, and leaves the next day.
Owner sues Dave trespass. Requests nominal damages–$1. Successful? Explain.
No. No nominal damages. Private Necessity Defense allows for recovery of actual property damage, but no punitive or nominal damages
Moroever, since no damages were inflicted by D, there really is no technical trespass.
D is a cross-country hiker in rural MN in February. Suddenly, a blizzard arises and the weather becomes hazardous. D realizes that if he doesn’t take shelter, he will die. All D can see is a lone farmhouse on a prairie a half-mile away.
Dave knocks, but no one answers. Dave realizes the door is open. He walks in, spends the night, and leaves the next day.
Owner sues Dave trespass. Requests punitive damages–$15,000. Successful? Explain.
No. No punitive damages. Private Necessity Defense allows for recovery of actual property damage, but no punitive or nominal damages
D is a cross-country hiker in rural MN in February. Suddenly, a blizzard arises and the weather becomes hazardous. D realizes that if he doesn’t take shelter, he will die. All D can see is a lone farmhouse on a prairie a half-mile away.
Dave knocks, but no one answers. Dave realizes the door is open. He walks in and lies down. Owner wakes up from a nap and comes downstairs. He kicks D out.
D gets frostbite. Is O liable?
Yes. D had the right to take sanctuary in O’s home under the Private Necessity.
When can you use force to defend someone else?
When the actor reasonably believes that the other person could have used force to defend himself.
When using force to defend someone else, is mistake allowed?
Yes, a reasonable mistake as to whether the other person is being attacked or has a right to defend himself is permitted.
