Defenses to Intentional Torts Flashcards
Which intentional torts have a privilege defense?
(4 - ABTT)
- Assault
- Battery
- Trespass to Land
- Trespass to Chattels
Which torts (not just intentional torts) have a privilege defense? (8) (ABFTT) (DFD)
- Assault
- Battery
- False Imprisonment (shopkeepers)
- Trespass to Land
- Trespass to Chattels
- Defamation
- False Light
- Disclosure
What are the three affirmative defenses to intentional torts?
Consent (express or implied)
Protective privilege
Necessity
What are the types of consent?
Express
Implied
What are the exceptions to express consent?
Express consent is no defense IF:
- D knew of mistake and took advantage;
- Consent was induced by fraud and goes to essential matter; OR
- Consent was obtained by duress (unless duress purely economic or only threats of future action)
How is implied consent granted? (3 ways)
- By custom
- Body language
- By law, when necessary to save a person’s life or other important interest in person or property
What are the limits on consent?
- Cannot consent to a criminal act
- Capacity required (N.B. Children can consent to age-appropriate activities)
- Consent is invalid if obtained through fraud or duress
To what intentional torts does the consent defense apply?
All
What constitutes capacity to consent?
Legal capacity
What is the effect of legal capacity on intentional torts?
Irrelevant to D
P must have capacity to consent
What are the steps for analyzing the protective privileges (defense)?
- Is the privilege available (future torts only; no retribution)
- Is a mistake permissible as to whether the tort being defended is actually being committed?
- Was proper amount of force used?
What are the protective privileges?
- Defense of self
- Defense of others
- Defense of property
What are the requirements for a protective privilege?
- Threat is emanating from the plaintiff
- Threat is imminent or in progress
- Reasonable belief of a threat - reasonable mistake allowed
- Force allowed - proportional
Which protective privileges allow use of deadly force?
Defense of self
Defense of others
What is the NY RULE regarding defense involving deadly force?
Must retreat if reasonable
BUT no duty to retreat in own home (HOWEVER, still may not use deadly force in defense of property)
For protective privileges, when are mistakes about the tort being committed permitted?
Reasonable mistakes permitted for acts involving:
- Existence of danger to self;
- Existence of danger to others;
- Right of others to defend themselves;
- Intrusion on land; AND
- Whether a request to desist is required
For protective privileges, when are mistakes about the tort being committed NOT permitted?
Whether trespasser has privilege to enter land
When is the necessity defense available?
As a defense to property torts
What defenses are available for necessity?
Private
Public
What are the elements for the defense of public necessity?
The situation must involve:
- Emergency;
- Committing a property tort; AND
- The intent to protect community as a whole or a significant group
What is the effect of public necessity defense?
Absolute defense
What are the elements for private necessity?
- Emergency
- Committed a property tort
- To protect his own interests
What is the effect of private necessity defense?
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)
What must a person do before he may recapture chattels?
P must make a timely demand for return UNLESS it would be clearly futile or dangerous
