Defenses to Intentional Torts Flashcards
When is Consent a Defense?
One cannot consent to a criminal act. Valid consent can be express, implied or implied by law. A defendant, however, can exceed the scope of consent given and incur liability.
When is Express Consent not valid?
Express consent is not valid in the following 3 situations:
(1) there was a mistake defendant knew about,
(2) consent was induced by fraud as to an essential matter, or
(3) consent obtained via duress.
When can Consent be Implied?
Consent is implied where a reasonable person would infer it from custom, usage or plaintiff’s conduct.
When is Self-Defense Reasonable?
When a person reasonably believes (i.e., subjective and objective) that she is being or is about to be attacked, she may use such force as is reasonably necessary to protect against injury. Traditionally, one has no duty to retreat. Under some modern views, though, one has a duty to retreat before using deadly force if it can be done safely, unless one is in her home. Self-defense is generally not available to the initial aggressor.
When is Defense of Others reasonable?
One may use force to defend another when the actor reasonably believes that the other person could have used force to defend himself.
When is Defense of Property reasonable?
One may use reasonable force to prevent the commission of a tort against her real or personal property, but one must first make a request to desist unless it clearly would be futile or dangerous. One may also use force in hot pursuit of another after being tortiously dispossessed. One may not use force causing death or serious bodily harm.
When is Recapture of Chattels reasonable?
One may use force to recapture a chattel only when tortiously dispossessed and in hot pursuit, and one must first make a demand for return unless doing so would be futile or dangerous. A recapture may only be made from the tortfeasor or one who knows, not from an innocent party. While one may enter the land of a wrongdoer or innocent party, one is liable for actual damages caused to the land. Finally, no mistake is allowed.
What is the Shopkeepers Privilege?
Shopkeepers have a privilege to detain for a reasonable time individuals they reasonably believe committed or are committing a theft.
When does a Police Officers have grounds to Arrest?
If the arrest is for a misdemeanor, it is privileged only for a breach of the peace (e.g., obscene language in public or behavior resulting in public unrest or disturbance) and if the action takes place in officer’s presence.
For a felony arrest, a police officer may make a reasonable mistake. Citizens may only make a reasonable mistake regarding the identity of the felon, but not whether it occurred.
When is Necessity a defense to Interfering with Property?
A person may
(1) interfere with the real or personal property of another when it is
(2) reasonably and apparently necessary to avoid threatened injury from a natural or other force, and
(3) when the threatened injury is substantially more serious than the invasion undertaken to avert it.
Can a parent or teacher use force to Discipline children?
A parent or teacher may use reasonable force in disciplining children.
Recite the Rule Statements for Each Defense to Intentional Torts
Defenses
Consent: One cannot consent to a criminal act. Valid consent may be express, implied, or implied by law (life-saving).
Self-Defense: When a person reasonably believes she is being or is about to be attacked, she may use such force is as reasonably necessary to protect against injury.
Defense of Others: One may use force to defend another when the actor reasonably believes the other person could have used force to defend himself.
Defense of Property: One may use reasonable force to prevent the commission of a tort against her real or personal property, but must first make a request to desist unless futile or dangerous. One may also use non-deadly force in hot pursuit of another after being tortiously dispossessed.
Recapture of Chattels: A recapture may only be made from the tortfeasor or one who knows. One may enter the land of a wrongdoer or innocent part, but one is liable for actual damages caused to the land.
Shopkeeper’s Privilege: Shopkeeper’s have privilege to detain for a reasonable time individuals they reasonably believe committed or are committing a theft.
Privilege of Arrest: If arrest is for a misdemeanor, it is privileged only for breach of the peace and if action takes place in defendant’s presence. If felony, police officer may make a reasonable mistake, but a citizen may only make a reasonable mistake regarding the identity of the felon, not whether it occurred.
Necessity: A person may interfere with real or personal property or another when reasonably and apparently necessary to avoid threatened injury from a natural or other force, and when the threatened injury is substantially more serious than the invasion undertaken to avert it.
