Defenses to Intentional Torts

Question 1

Types of affirmative defenses (privileges)

Answer 1

1. Consent
2. Defense of Self
3. Defense of Others
4. Defense of Real Property
5. Defense and Recovery of Personal Property
6. Necessity

Question 2

Consent types

Answer 2

1. Implied

2. Express

Question 3

Implied consent to medical procedure

Answer 3

1. P is unconscious or otherwise unable to consent
2. Life-preserving medical attention is necessary
3. No reason to believe P would not consent
4. Reasonable person would consent
5. Dr. tried to procure consent of close relative of P, if possible

Question 4

Invalid consent

Answer 4

Consent procured by fraud or force, even if express

Question 5

Is custom (as consent) controlling?

Answer 5

Can support a defense, but not controlling

Question 6

Defense of self elements

Answer 6

Protecting against imminent serious bodily injury with

1. Reasonable belief (objective)
2. Only as long as threat of injury continues (necessary)
3. With appropriate force (proportionate)

Question 7

Majority view of deadly force (Defense of self)

Answer 7

Stand your ground (TN’s view)

Question 8

Minority view of deadly force (Defense of self)

Answer 8

Retreat to walls (not TN’s view)

Question 9

TN’s view of deadly force (Defense of self)

Answer 9

Stand your ground (majority view)

Question 10

Defense of others elements

Answer 10

• 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)

Question 11

Majority view of mistaken defense of others

Answer 11

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)

Question 12

Minority view of mistaken defense of others

Answer 12

If D’s mistake is reasonable = D will not be liable for tort/can assert affirmative defense of defense of others (TN’s view)

Question 13

TN’s view of mistaken defense of others

Answer 13

If D’s mistake is reasonable = D will not be liable for tort/can assert affirmative defense of defense of others (minority view)

Question 14

Defense of real property elements

Answer 14

1. P is trespassing with actual force
2. D has reasonable belief force is necessary
3. D requested P to leave ( or it would be futile/useless to make request)

Question 15

Force (Defense of real property)

Answer 15

1. Owner may use reasonable force

2. Owner cannot use deadly force unless necessary in self-defense or to prevent a felony

Question 16

Deadly force (Defense of real property)

Answer 16

Owner cannot use deadly force unless necessary

1. For self-defense OR
2. To prevent a felony

Question 17

TN’s use of devices (Defense of real property)

Answer 17

1. Device is not designed/known to create substantial risk of causing death or serious harm
2. Use is reasonable under circumstances
3. Reasonable care is taken to make use of device known to probable intruders
4. Does not include use of animals to protect property (in general, use of devices does)

Question 18

Defense and recovery of personal property elements

Answer 18

Force can be used but only in limited circumstances of

1. Fresh pursuit
2. Demand made (unless useless or dangerous) and
3. Reasonable force under circumstances

Question 19

Hot pursuit requirement (Defense and recovery of personal property)

Answer 19

Must be immediately after dispossession by force or fraud

Question 20

TN’s shopkeeper’s privilege (Defense and recovery of personal property)

Answer 20

Complete defense against false imprisonment if

1. Merchant had probable cause to suspect person committed or is attempting to commit theft
2. Merchant acted in reasonable manner under circumstances and
3. Merchant detained suspect for a reasonable period of time

Question 21

Necessity types

Answer 21

1. Public

2. Private

Question 22

Public necessity elements

Answer 22

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

Question 23

Public necessity privilege

Answer 23

Complete = pays $0 in damages

Question 24

Private necessity elements

Answer 24

D is protecting interest unique to D 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. Personal disaster

Question 25

Private necessity privilege

Answer 25

Limited = D must pay P for actual damages (no liability for trespassing, no nominal damages)