Defenses to Intentional Torts Flashcards
What are the defensea to Intentional Torts?
- Consent
- Self Defense
- Self Defense of Others
- Defense of Property
- Recapture of Chattels
- Reentry onto Land
- Necessity
- Shopkeepers Privilege
- Privilege of Arrest
What is the impact of Consent on Intentional Torts ?
Defense to Every Intentional Tort
- Can be express or Implied
When does express consent Exist?
Clearly & unmistakably stated (spoken or written)
When is Consent Lost?
When conduct reasonably exceeds the scope of the consent
When is express consent invalid?
Exp. Consent invalid if:
- Fraud - fraud related to essential matters only ➞ Doesn’t apply to collateral matters
- Duress - unless only future threats or future econ. deprivation
- Mistake - Only if ▵ knew of ∏’s mistake and took advantage of the mistake
When does Implied Consent exist?
Plaintiff’s consent is implied when he is silent in a situation where a reasonable person would object to the Defendant’s actions
- Emergency Situations
- Athletic Evients
- Mutual Consent to Combat
What is the Legal Capacity Required for Valid Consent
Consent is not a defense if P is incapable of consenting
- Chiild
- Intoxication
- Unconscious
- Insane
What are the elements to the self-defense defense for intentional torts ?
- D subjectiely believes that she used reas. force to prevent P from engaging in an imminent & unpriv. attack
- D responds with proportional force during the threat (can’t be after threat is over)
Is there a duty to retreat b/f using self defense ?
Courts are split on whether & when ▵ has a duty to retreat b/f using force
- Restatement Views
- Non-Deadly Force - No Duty to Retreat
- Deadly Force - Duty to retreat unless the attack takes place inside the ▵s dwelling by a pers. who does not also live there
Self Defense - What degree of force may one use ?
▵ can only use amount of force req. to prevent the impending harm
- Using more then nec. will subj. ▵ to liab. for damages caused by the excessive force
- Non-Deadly Force - use anytime vic. reas. believes that force will be used against her
- Deadly Force - Vic. can use deadly force if she is not at fault, confronted w. unlawful force & reas. believes that she is facing imm. threat of death or serious bodily harm
Self Defense - Accidental Third Party Injuries
Defense extends to accidental third party injuries caused while the ▵ was defending herself
What is the defense of others defense?
Requires Reas. Belief
- Even if 3d P didn’t have legal right to use force in her own def.,
- ▵ who came to aid of that pers. may still assert self def. of others
- if ▵ honestly & reas. believed that the other pers. had the right to use force in her own defense
Reasonable Mistake OK - Reas. mistake as to the threat of force will not prevent use of the def.
What degree of force may be used for the defense of self defense of others?
Alter Ego Theory - ▵ can use same degree of force she would be permitted to use if the tort was directed at her (steps into the shoes of the 3d party)
What is the defense of property defense of intentional torts?
A pers. can use reas. force to defend her prop (land and chattels)
Warning Required - owner of prop. must make verbal demand to leave
- unless reas. appears the request will be futile or violence will occur immed.
When can deadly force be used to defend property?
Never - Deadly Force Prohibited
- Exception - Imm. Threat of Death or Serious Bodily Harm (Case of Self Def.)
- Deadly Mechanical Devices Prohibited - Owner can’t use deadly mech. device such as spring gun to protect her prop.
Defense of Property - Reasonable Mistake
Intrusion = YES - Reas. mist. is permitted as to whether a tort has actually occurred
Warning Required = YES - Reas. Mist. perm. as to whether a verbal demand was req.
Priv. = NO - Reas. Mist. not a defense if the intruder actually had a priv. to be on the ▵’s prop.
What are the elements for the recapture of chattels defense ?
An owner of chattels has right to use reas. force (never deadly) to regain poss. of chattels
- if the prop. owner is in “fresh pursuit” of one who has taken poss. of chattels wrongfully
- Fresh Pursuit - Without unreasonable Delay
- Timely Demand Required Unless Futile or dangerous
To whom may reasonable force be used to recapture a chattel ?
Wrongdoer Only
- Owner can only use force against the actual tortfeasor or
- another party who is aware that the chattels were tortiously obtained (can’t use force against innocent party)
What is the authority to discipline defense to intentional torts?
If defendant is charged with maintaining discipline (parent or Teacher)
- D can use reas. force to discipline a child
When does the defense of Necessity arise?
Defendant can injure plaintiff’s prop. if it is reas. nec to avoid the harm
- b/c the harm caused is subst. greater than the harm avoided
When does a public necessity arise?
The D is acting to protect the public from imminent severe harm
- There is no liability of the D for any harm
- No compensation must be paid
When does private necessity arise?
- arises when D commits an int. tort
- and claims it is better to commit the int. act than suffer the harm they would have suffered
Owner can’t resist during emergency
- BUT If there is harm caused - D liable for the harm that is caused
What are the elements of the shopkeepers privilege?
Shopkeep can detain a suspected shoplifter on store prop.
- in a reas. manner (no deadly force)
- for reas. pd. of time
- must be limited to short pd. of time (10-15 min) long enough to determine if suspect actually shoplifted
- Police must be called or suspect released
- if she has cause to reas. believe that the pers. detained in fact committed or attempted to commit theft of store prop.
From what standpoint is the reasonableness of self-defense evaluated?
If a reas. pers. in the Ds circ. would have believed that he was under attack
Which intentional torts require actual damage?
- Trespass to chattels
- Conversions
When is re entry onto land applicable?
Common Law = YES - the prompt use of reas. force to regain entry onto prop. that owner was tortiously disposed
Modern Law = NO - Mod. statutes have created summary procedures to recovering poss. of real prop. so self-help is no longer avail
What is the defense of Privilege of Arrest ?
With a Warrant
With Warrant
- PO won’t be liab. for executing an arrest w. a warrant
- that appears to have been correctly issued
- even if it is later revealed that there was no prob. cause or procedure used to get war. was improper
What is the defense of Privilege of Arrest ?
Without a Warrant - Felony Arrest by Police Officer
Requirement for Priv
- PO can arrest suspect for felony w/out war.
- if officer has reas. grounds to believe a felony has been committed
- and that suspect committed the felony
Force Permitted
- Reas. force nec. to make arrest (Deadly force if suspect poses serious threat)
What is the defense of Privilege of Arrest ?
Without a Warrant - Felony Arrest by Private Citizen
Requirement for Priv.
- can arrest suspect for felony w/out war.
- if Felony has actually occurred
- and citizen has reasonable grounds that suspect committed the felony
Force Permitted = Reas. force nec. to make arrest (Deadly force if suspect poses serious threat)
What is the defense of Privilege of Arrest ?
Without a Warrant - Misdemeanor Arrest
PO or priv. cit. can arrest w/out war. for MD involving breach of the peace
- that were committed in the arresting party’s presence
Force Permitted = Reas. force (no deadly force)
Self-Defense - Initial Aggressor
Can’t claim self defense unless the other party has responded to nondeadly force with deadly force
