Defenses To Intentional Torts

Question 1

What are the two types of consent?

Answer 1

1. Express consent

2. Complied consent

Question 2

What is expressed consent?

Answer 2

Consent by words or actions, benefits the willingness to submit to the defendant’s conduct.

Question 3

Is consent by mistake valid?

Answer 3

Yes unless the defendant caused the mistake or knew of it and took advantage of it.

Question 4

Is consent by fraud a valid defense?

Answer 4

Yes, if it goes to an essential matter.

• if the fraud that induced the consent goes only to a collateral matter, then the consent is still valid.

Question 5

What is implied consent?

Answer 5

When the plaintiff is silent in a situation in which a reasonable person would object to the defendants action.

• emergencies – it is fair to assume that someone in need of rescuing would allow a rescuer to touch him absent explicit consent
• injuries arising from athletic consent
• capacity- youth, intoxication, incompetency may undermine the validity of consent

Question 6

What is self-defense?

Answer 6

A person may use reasonable proportionate forced to defend against an offensive contact or bodily harm

Question 7

Does a persons mistaken belief that he is in danger invalidate the defense of self-defense?

Answer 7

No, so long as it is a reasonable mistake.

Question 8

What is the duty to retreat?

Answer 8

• traditionally, most courts require treat before one can use deadly force.
• recently, many jurisdictions state that you need not retreat before using reasonable, proportionate force.

Question 9

Is the initial aggressor entitled to claim self-defense?

Answer 9

No unless the other party has responded to non deadly force with deadly force.

Question 10

Is the actor liable for injuries to a bystander?

Answer 10

No as long as the actor was behaving reasonably an injury was accidental

Question 11

What is defense of others?

Answer 11

One is justified in using reasonable force in defense of others upon a reasonable belief that the defendant party would be a entitled to use self-defense.

• not liable for acting on a mistaken belief that the third-party is in danger as long as his belief is reasonable.

Question 12

What is the defense of property?

Answer 12

Reasonable force maybe you if the person reasonably believes it is necessary to prevent tortious harm to the property.

Question 13

Can deadly force be used to defend property?

Answer 13

No

Question 14

What type of force should a person use to recapture chattel?

Answer 14

A person may use reasonable force to reclaim her personal property and another has wrongfully taken

• if the original taking was lawful then only peaceful means may be used.

Question 15

How may a person regain possession land?

Answer 15

Common law: reasonable force permitted

Modern rule: use of force is no longer permitted; only legal process

Question 16

What is the privilege of felony arrest for a private citizen?

Answer 16

• permitted to use reasonable force to make an arrest in the case of a felony if;

1. The family has actually been committed; AND
2. The arresting party has reasonable grounds to suspect that the person being arrested has committed the felony.

• it is a defense to make a reasonable mistake asked to identity of the family, but it is not a defense to make a mistake as to whether the family was actually committed.

Question 17

What is the privilege of felony arrest by police officer?

Answer 17

• Most reasonably believe that a felony has been committed and that the person arrested committed it
• An officer who makes a mistake as to whether a felony has been committed is not subject to tort liability.

Question 18

What is the privilege of misdemeanor arrest by police officer?

Answer 18

An arrest may be made by a police officer only if the misdemeanor was committed in the office present.

Question 19

What is the privilege of misdemeanor arrest by a private citizen?

Answer 19

And arrest by a private person may only be made if there is a breach of the peace.