Defenses to Intentional Torts Flashcards
Defense of Consent
A defendant who acted in accordance with the plaintiff’s informed
and voluntary assent, whether express or implied, is not liable for the resulting harm so
long as the plaintiff had legal capacity.
Defense of Self-Defense
A person who reasonably believes himself to be threatened
with immediate bodily harm may use whatever degree of force is apparently necessary
to protect himself.
If the attack is with so-called “deadly force” the majority rule is that the one attacked
may defend with “deadly force” if deemed reasonable under the circumstances. The
minority rule requires that the one attacked retreat if there is a safe means of doing so,
unless the victim of the attack is in his “castle”(i.e., home).
Defense of Defense of Others
A person who reasonably believes another to be
threatened with immediate bodily harm may use whatever degree of force is apparently
necessary to protect the personal safety of the other person.
Step-In-Shoes Jurisdiction (Defense of Others)
In some jurisdictions a person is not
allowed to use the defense of “defense of others” unless the person being defended
was not the aggressor and had the right to use self-defense.
Reasonable Appearances Jurisdictions (Defense of Others)
In other jurisdictions, a
person defending another in good faith and in ignorance of the fact that the person
being defended is the aggressor and not entitled to use self-defense is nevertheless
justified when acting upon reasonable appearances. Sometimes it is further required
that the person being defended is one whom the defender is authorized by statute to
protect.
Defense of Defense of Property
A person may use reasonable force that is not likely
to cause death or serious bodily harm to protect his or her possession of real or
personal property against an apparent trespasser.
Defense of Prevention of Crime
A person, whether a police officer or a private
person, may use reasonable force to prevent the commission of a crime which is
apparently being attempted in his or her presence.
Defense of Legal Authority
A person may commit an otherwise tortious act if it is
done under legal process or is otherwise authorized by law. It is a defense that is
usually used by police officers or private persons who have made an arrest either with
or without a warrant and who are now facing charges of false imprisonment in relation to
their having made the arrest.
Defense of Necessity
A person may commit an otherwise tortious act if that person is
acting in an emergency situation to protect himself or others from a threatened injury to
person or property. The person claiming the defense of necessity may act on
appearances. A reasonable mistake is permitted.
Defense of Recovery of Property
A person may commit an act which would
otherwise be tortious if he or she is acting in fresh pursuit and with a reasonable degree
of force to regain possession of his or her property. There are three separate aspects to
this particular defense: re-entry upon land, recapture of chattel, and the Shopkeeper’s
Rule.
Re-Entry Upon Land Aspect
A person may use reasonable force to re-enter real
property only if the taking of the property was tortious or wrongful and the re-entering
party is entitled to immediate possession. Ordinarily, a demand must be made for the
occupier to vacate unless such a demand would be a total exercise in futility. Only force
not likely to cause death or serious bodily harm may be used.
Recapture of Chattel Aspect
person may use reasonable force to defend against
his or her chattel being taken only if the taking of the chattel was wrongful or tortious,
the recapturing person is in fresh pursuit, and the degree of force is not likely to cause
death or serious bodily harm.
Shopkeeper’s Rule
Under the Shopkeeper’s Rule, a business person has a limited
privilege in some jurisdictions to detain a suspected thief, e.g., shoplifter or embezzling
employee, to investigate the shopkeeper’s claim to the goods, even though it may be
determined that no wrongful taking has been committed.
Fresh Pursuit
Fresh pursuit relates to the requirement that a person recapturing a
chattel or a shopkeeper detaining a suspected thief must do so without unreasonable
delay after discovering the loss.
Reasonableness
Reasonableness is a concept that permeates all of the defenses to
intentional torts. It is the standard by which the amount of force used or the time and
manner of a re-entry, recapture, or detention is judged.
