Defenses to Intentional Torts

Question 1

Consent

Answer 1

A valid consent by P is a complete defense to an intentional tort.

1. ) Express Consent (Easy): P communicates permission for D to act.
2. ) Implied Consent (Hard): Consent may be implied when a reasonable person would interpret P’s conduct as indicating permission for D to act.
3. ) Scope of Consent: Consent is not a defense if D’s act is beyond the scope of the consent, or takes place after the consent has been withdrawn.
4. ) Emergency Medical Treatment or Consent Implied by Law: Implied consent when: (Memorize)
   (a) P is unable to consent to treatment;
   (b) no one else w/ authority is available to consent;
   (c) there is no time to obtain consent; AND
   (d) a reasonable person would consent.

*Consent is not implied for a non-emergency operation by a doctor not of your choice.

5. ) Invalid Consent: Consent is not valid when:
   (a) P lacks capacity due to age or mental condition to give consent;
   (b) the consent was obtained through fraud; OR
   (c) the consent was given under duress or coercion.

Question 2

Self Defense

Answer 2

A person is justified in using reasonable force to prevent what she reasonably believes is threatened unprivileged harmful or offensive bodily contact or confinement.

1. ) Reasonable Belief: D must have believed she was under attack AND a reasonable person in the shoes of the D would have believed they were under attack.
2. ) Reasonable Force: A reasonable person in the shoes of the D would have concluded the force was necessary to repel the attack. Reasonable force can include deadly force.

Retreat Rule: If the jurisdiction follows the retreat rule, a person must retreat, if he can do so with safety, before using deadly force in self-defense.

(a) limitation on using DEADLY force - you can still hold your ground by committing battery
(b) no requirement to retreat if you can’t retreat safely
(c) never required to retreat from your home.
(d) law enforcement officers never need to retreat.

*In a non-retreat jurisdiction, or if the jurisdiction is not specified, there is no DUTY to retreat.

Question 3

Defense of Others

Answer 3

A person who comes to the aid of another may use that amount of force that the person defended could have used in self defense.

Question 4

Defense of Property

Answer 4

A person may use reasonable non-deadly force to defend his land or personal property. Deadly force may never be used to protect property alone.

1. ) Deadly Force: Deadly force is any force capable of causing death or serious physical injury. Deadly force does not require a death. While deadly force cannot be used to protect property, it can be used if reasonable in self-defense. If the D is both protecting property and acting in self-defense, deadly force might be allowed.
2. ) The Demand Rule: In most situations, the D is required to demand that the other person stop the interference with the D’s property before force can be used.
3. ) Suspected Shoplifters: If the establishment (1) reasonably believes a person is a shoplifter, they can hold the person in a (2) reasonable manner for a (3) reasonable period. Such action by the establishment will qualify as “defense of property,’ and the store will have a defense to assault, battery, and false imprisonment.

Question 5

Necessity

Answer 5

A person is justified in interfering with the property right (but not the person) of another when the necessity to avoid harm is substantially greater than the harm caused by the property interference.

• This defense can be rasied against Trespass to Land, Trespass to Chattel, and Conversion ONLY!*
  1. ) In General: Essentially, the defense is that a much greater harm would have occurred if the tort had not been committed. The defense can be raised to trespass to land, trespass to chattels, and conversion. It IS NOT available to battery, assault, or false imprisonment.

Two Types of Necessity (must know the difference!)

2. ) Public Necessity: A public necessity is action by the D to prevent harm to a large group of people: a fire headed for the city gas tank would result in a public necessity. In the public necessity situation, the D has a complete defense to trespass to land, trespass to chattels, and conversion. (ex. D. can trespass on land, grab P’s hose, use their water, ect. to prevent this danger to the public).
3. ) Private Necessity: A private necessity is action by the D to prevent harm to the D or a small group of people. A fire headed for the defendant’s barn would result in a private necessity. In the private necessity situation, a D will technically not be held to have committed the tort, BUT he must pay for any damage caused when responding ot the necessity.