Defenses to Intentional Torts

Question 1

Definition of express consent

Answer 1

If P expressly consents to an intentional interference with his person or property, D will not be liable for that interference

Question 2

Definition of implied consent

Answer 2

Existence of consent may also be implied from P’s conduct, from custom, or from the circumstances

Question 3

Implied consent and objective manifestation

Answer 3

It is the objective manifestations by P that count - if it reasonably seemed to one in D’s position that P consented, consent exists regardless of P’s subjective state of mind (Vaccine and Ship example!)

Question 4

Implied consent and lack of capacity

Answer 4

Consent will be invalidated if P is incapable of giving that consent, because she is a child, intoxicated, unconscious, etc

Question 5

Consent and exceeding scope

Answer 5

Even if P does consent to an invasion of her interests, D will not be privileged if he goes substantially beyond the scope of that consent

Question 6

Consent as a matter of law

Answer 6

Even if P is incapable of truly giving consent, consent will be implied “as a matter of law” if these factors exist:

1 - P is unable to give consent
2 - immediate action is necessary to save P’s life or health
3 - there is no indication that P would not consent if able
4 - a reasonable person would consent in the circumstances

Question 7

What are the defenses for intentional torts?

Answer 7

Consent - Implied and Express
Self Defense
Defense of Others
Defense of Property
Recovery of Property
Necessity - Public and Private
Authority of Law (police officers)
Discipline (parents, teachers, military officer)
Justification - catch all defense

Question 8

What is fresh pursuit?

Answer 8

pursue someone after they’ve stolen something from you. Must be immediate (within half an hour)

Question 9

Rule statement for public necessity

Answer 9

interference with the land or chattels of another is necessary, or reasonably appears necessary, to prevent a disaster to the community or to a substantial number of people.

Question 10

Rule statement for private necessity

Answer 10

If an individual must injure someone else’s property in order to prevent injury to their own property

D is responsible for property damages (limited privilege)

Question 11

Rule statement for defense of property

Answer 11

a property owner may use only as much force as appears necessary to protect the property

Question 12

When will a police officer be liable for an intentional tort ?

Answer 12

Even under authority of law, police officer will be liable if:

1 - Mistaken identity - even if the warrant is completely correct, the officer will be liable if he reasonably but mistakenly arrests X when the warrant is for Y
2 - Excessive Force - police officer is liable if he uses excessive force, even if he has a valid warrant
3 - Court lacks jurisdiction - police officer is liable if the court that issued the arrest warrant lacks jurisdiction to do so, even if he follows proper procedure

Question 13

Elements of informed consent for medical malpractice

Answer 13

1 - D physician failed to inform him adequately of a material risk before securing his consent to the proposed treatment
2 - If he had been informed of the risks he would have not consented to the treatment
3 - the adverse consequences that were not made known did in fact occur and he was injured as a result of submitting to the treatment

Question 14

Can hospitals be sued under informed consent medical malpractice?

Answer 14

The hospital does not have a duty to obtain consent, the doctor does (NO)

Question 15

Rule Statement for Defense of Person

Answer 15

A proper defense of person occurs when the actor uses equal force toward the aggressor

Question 16

What to analyze in Defense of Person

Answer 16

duty to retreat, no excessive force, retaliation not vlaid, reasonable mistake authorized, threat must be imminent

Question 17

Rule Statement for Consent

Answer 17

Consent can either be express or implied by word or action; implied by fact with objective manifestation that D reasonably believes is consent, or by custom or usage via participation in a sport; or implied by law in an emergency situation

Question 18

Rule Statement for when Consent is invalidated

Answer 18

Consent can be invalidated by a criminal act, fraud, duress, incapacity, or the scope of consent

Question 19

Rule statement for private necessity

Answer 19

A defense of private necessity to a claim of trespass to land may apply when an actor can prove it was reasonably necessary to enter the land to prevent serious harm to the actor, his chattels, or a third party