Defenses to Intentional Torts

Question 1

Consent

Answer 1

Consent
• Consent is the willingness in fact for conduct to occur. It makes what would otherwise have been a tort privileged.

• Consent can be express or implied through one’s verbal expressions or conduct
o Ex. Early case when the woman extended her arm for a vaccination.

• An action must not exceed the consent.
o In Hackbart, the plaintiff had consented to the rough and tumble of football, but he had not consented to the striking of blows outside the normal rules of the game.

• In medical procedures, the patient must give express consent before the procedure except in life-threatening emergencies.
o A patient has not been given “informed consent” unless the doctor tells him the nature of the operation and the risks that are involved.

• Consent is invalid if it’s given upon a misrepresentation
o In the case of Magic Johnson, in which a woman consented to having sex with him but not with having sex with someone who was HIV positive.

• For an illegal activity, such as in an illegal boxing match, consent is usually invalidated.
o Ex. Two boxers would be guilty of breaching the peace, but neither would be liable to the other.

Question 2

Self Defense

Answer 2

• Restatement: An actor is privileged to use reasonable force to defend himself against immediate offensive or bodily harm. He must have a reasonable belief that the force is necessary, and his response must be proportional to the threat.
• Words alone do not justify self-defense.
• One must choose the method of self defense calculated to cause the least damage to the other. He cannot cause more harm than necessary.
• A person cannot use deadly force unless the threat against himself is equally grave.
• Outside one’s home, there is no duty to retreat unless the other is using deadly force, in which case the Restatement says that a person has to retreat. However, most courts say a person does not have to back down and can stand his ground in the face of deadly force.

• If a person is attacked with a deadly weapon in his own home, he can use deadly force to repel it. However, deadly force cannot be used if the invader is fleeing the premises.
o In the Roberts case, a cop shot an arrested man because he was being aggressive and had a reputation for violence, so the cop had good reason to believe he was threatened.

Question 3

Defense of Others

Answer 3

• Restatement – Actor is privileged to inflict only such invasions of the others interests of personality as the third person is, or because of a reasonable mistake of fact is believed by the actor to be, privileged to inflict on his own behalf

Question 4

Defense of Property

Answer 4

• A person may use reasonable force to protect his property when he reasonably believes that force is necessary to prevent the intrusion. The force must be proportional to the threatened interest. Using deadly force to protect property alone is usually not proportional.
o During a home intrusion, one cannot use deadly force to protect property unless the intrusion also threatens others’ lives.
 Ex. A spring gun cannot be used to defend one’s property. (Katko v. Briney)

• Recovery of Property
o Owner dispossessed of property may use reasonable force to recover property immediately after dispossession
 Fresh pursuit v. undue lapse of time (limited duration privilege)
 Force is limited to reasonableness

• Merchants Privilege
o Restatement recognized privilege for merchant to detain for reasonable investigation a person whom merchant reasonably believes to have stolen merchandise (otherwise, it would be false imprisonment)

Question 5

Necessity

Answer 5

• Private Necessity: (1) One is privileged to commit an act which would otherwise be trespass to a chattel of another or a conversion of it, if it is reasonable or is reasonable believed to be reasonable and necessary to protect the person or property of the actor, the other or a third person from serious harm, unless the actor knows that the person for whose benefit he acts is unwilling that he shall do so. (2)
o One may interfere with another’s property rights in order to avoid greater harm to property or to oneself or others. However, this is an incomplete defense, and the defendant must compensate the plaintiff for any damages.
 In the Ploof case, the plaintiff needed to moor at the defendant’s dock during a violent storm.
 In Vincent, the ship was allowed to dock during the storm, but the owner need to pay for the damaged dock.

• Public Necessity: One is privileged to commit an act which would otherwise be a trespass to a chattel or a conversion if the act is or is reasonably believed to be necessary for the purpose of avoiding a public disaster. Complete defense, no right to compensation.
o Provides a privilege to destroy private property to protect community
 In Caltex the case, in which the military had to destroy the oil tanks to prevent the enemy from using them.