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Torts > Defenses to Intentional Torts > Flashcards

Defenses to Intentional Torts Flashcards

1
Q

Which intentional torts have a privilege defense?

(4 - ABTT)

A
  1. Assault
  2. Battery
  3. Trespass to Land
  4. Trespass to Chattels
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2
Q

Which torts (not just intentional torts) have a privilege defense? (8) (ABFTT) (DFD)

A
  1. Assault
  2. Battery
  3. False Imprisonment (shopkeepers)
  4. Trespass to Land
  5. Trespass to Chattels
  6. Defamation
  7. False Light
  8. Disclosure
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3
Q

What are the three affirmative defenses to intentional torts?

A

Consent (express or implied)

Protective privilege

Necessity

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4
Q

What are the types of consent?

A

Express

Implied

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5
Q

What are the exceptions to express consent?

A

Express consent is no defense IF:

  1. D knew of mistake and took advantage;
  2. Consent was induced by fraud and goes to essential matter; OR
  3. Consent was obtained by duress (unless duress purely economic or only threats of future action)
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6
Q

How is implied consent granted? (3 ways)

A
  1. By custom
  2. Body language
  3. By law, when necessary to save a person’s life or other important interest in person or property
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7
Q

What are the limits on consent?

A
  1. Cannot consent to a criminal act
  2. Capacity required (N.B. Children can consent to age-appropriate activities)
  3. Consent is invalid if obtained through fraud or duress
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8
Q

To what intentional torts does the consent defense apply?

A

All

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9
Q

What constitutes capacity to consent?

A

Legal capacity

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10
Q

What is the effect of legal capacity on intentional torts?

A

Irrelevant to D

P must have capacity to consent

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11
Q

What are the steps for analyzing the protective privileges (defense)?

A
  1. Is the privilege available (future torts only; no retribution)
  2. Is a mistake permissible as to whether the tort being defended is actually being committed?
  3. Was proper amount of force used?
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12
Q

What are the protective privileges?

A
  1. Defense of self
  2. Defense of others
  3. Defense of property
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13
Q

What are the requirements for a protective privilege?

A
  1. Threat is emanating from the plaintiff
  2. Threat is imminent or in progress
  3. Reasonable belief of a threat - reasonable mistake allowed
  4. Force allowed - proportional
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14
Q

Which protective privileges allow use of deadly force?

A

Defense of self

Defense of others

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15
Q

What is the NY RULE regarding defense involving deadly force?

A

Must retreat if reasonable

BUT no duty to retreat in own home (HOWEVER, still may not use deadly force in defense of property)

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16
Q

For protective privileges, when are mistakes about the tort being committed permitted?

A

Reasonable mistakes permitted for acts involving:

  1. Existence of danger to self;
  2. Existence of danger to others;
  3. Right of others to defend themselves;
  4. Intrusion on land; AND
  5. Whether a request to desist is required
17
Q

For protective privileges, when are mistakes about the tort being committed NOT permitted?

A

Whether trespasser has privilege to enter land

18
Q

When is the necessity defense available?

A

As a defense to property torts

19
Q

What defenses are available for necessity?

A

Private

Public

20
Q

What are the elements for the defense of public necessity?

A

The situation must involve:

  1. Emergency;
  2. Committing a property tort; AND
  3. The intent to protect community as a whole or a significant group
21
Q

What is the effect of public necessity defense?

A

Absolute defense

22
Q

What are the elements for private necessity?

A
  1. Emergency
  2. Committed a property tort
  3. To protect his own interests
23
Q

What is the effect of private necessity defense?

A

Private necessity serves as a defense against the property tort (i.e., D will have no liability for nominal or punitive damages)

BUT D is still liable for any damages caused to P or P’s property

(N.B. D has an absolute right to sanctuary during the emergency, i.e., P will be liable for damages to D if he throws D off his property when D had a private necessity)

24
Q

What must a person do before he may recapture chattels?

A

P must make a timely demand for return UNLESS it would be clearly futile or dangerous

25
Q

How may a person go about recapturing chattels?

A

Peacefully AND with reasonable force when in hot pursuit of the tortfeasor

26
Q

From whom may you recapture chattels?

A
  1. The tortfeasor OR
  2. A third party who knows or should know that the chattels were tortiously obtained
27
Q

Whose land may you enter to recover chattels?

A

Tortfeasor’s land: At a reasonable time in a reasonable matter (distinguish from peaceful!)

Innocent party’s land: At a reasonable time, in PEACEFUL manner, when owner has been given notice and refuses return

28
Q

When is a person prohibited from recapturing chattels?

A

When chattels were placed negligently on another’s land (e.g., wandering cattle)

29
Q

What is the shopkeeper’s privilege?

A

Shopkeeper may detain a patron IF:

  1. There is a reasonable belief of theft;
  2. Detention is in a reasonable manner (NO deadly force);
  3. Detention is for a reasonable time; AND
  4. Detention is only for purpose of making an investigation
30
Q

How and by whom may children be disciplined?

A

Teachers and Parents (Reasonably)

Torts (16 decks)

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