Defenses to Intentional Torts Flashcards
Types of affirmative defenses (privileges)
- Consent
- Defense of Self
- Defense of Others
- Defense of Real Property
- Defense and Recovery of Personal Property
- Necessity
Consent types
- Implied
2. Express
Implied consent to medical procedure
- P is unconscious or otherwise unable to consent
- Life-preserving medical attention is necessary
- No reason to believe P would not consent
- Reasonable person would consent
- Dr. tried to procure consent of close relative of P, if possible
Invalid consent
Consent procured by fraud or force, even if express
Is custom (as consent) controlling?
Can support a defense, but not controlling
Defense of self elements
Protecting against imminent serious bodily injury with
- Reasonable belief (objective)
- Only as long as threat of injury continues (necessary)
- With appropriate force (proportionate)
Majority view of deadly force (Defense of self)
Stand your ground (TN’s view)
Minority view of deadly force (Defense of self)
Retreat to walls (not TN’s view)
TN’s view of deadly force (Defense of self)
Stand your ground (majority view)
Defense of others elements
- Mirrors self-defense*
1. If D reasonably believes (objective)
2. D’s intervention is necessary at the time and
2. Other person would be privileged to use force in self-defense (proportionate)
Majority view of mistaken defense of others
D steps into shoes of P whom D is defending = if P would be liable for tort, D would be liable for tort (not TN’s view)
Minority view of mistaken defense of others
If D’s mistake is reasonable = D will not be liable for tort/can assert affirmative defense of defense of others (TN’s view)
TN’s view of mistaken defense of others
If D’s mistake is reasonable = D will not be liable for tort/can assert affirmative defense of defense of others (minority view)
Defense of real property elements
- P is trespassing with actual force
- D has reasonable belief force is necessary
- D requested P to leave ( or it would be futile/useless to make request)
Force (Defense of real property)
- Owner may use reasonable force
2. Owner cannot use deadly force unless necessary in self-defense or to prevent a felony
Deadly force (Defense of real property)
Owner cannot use deadly force unless necessary
- For self-defense OR
- To prevent a felony
TN’s use of devices (Defense of real property)
- Device is not designed/known to create substantial risk of causing death or serious harm
- Use is reasonable under circumstances
- Reasonable care is taken to make use of device known to probable intruders
- Does not include use of animals to protect property (in general, use of devices does)
Defense and recovery of personal property elements
Force can be used but only in limited circumstances of
- Fresh pursuit
- Demand made (unless useless or dangerous) and
- Reasonable force under circumstances
Hot pursuit requirement (Defense and recovery of personal property)
Must be immediately after dispossession by force or fraud
TN’s shopkeeper’s privilege (Defense and recovery of personal property)
Complete defense against false imprisonment if
- Merchant had probable cause to suspect person committed or is attempting to commit theft
- Merchant acted in reasonable manner under circumstances and
- Merchant detained suspect for a reasonable period of time
Necessity types
- Public
2. Private
Public necessity elements
D is acting as champion of the public and is privileged to
destroy, damage, or use real or personal property if
1. D reasonably believes
2. Such action is necessary to avert
3. Imminent
4. Public disaster
Public necessity privilege
Complete = pays $0 in damages
Private necessity elements
D is protecting interest unique to D and is privileged to destroy, damage, or use real or personal property if
- D reasonably believes
- Such action is necessary to avert
- Imminent
- Personal disaster
Private necessity privilege
Limited = D must pay P for actual damages (no liability for trespassing, no nominal damages)
