Defenses to Intentional Torts

Question 1

List the Defenses to Intentional Torts

Answer 1

1. Consent
2. Self-Defense
3. Defense of Others
4. Defense of Property
5. Recovery of Property
6. Shopkeeper’s Privilege
7. Necessity
8. Authority of Law - Privilege of Arrest (not tested)
9. Discipline (not tested)

Question 2

What are the two types of Consent?

Defenses to Intentional Torts

Answer 2

Express consent (actual consent)
Implied consent (apparent consent)

Question 3

What are the two types of Implied Consent?

Defenses to Intentional Torts

Answer 3

Implied-in-fact

Implied-in-law

Question 4

What is the difference between implied-in-fact and implied-in-law consent?
Defenses to Intentional Torts

Answer 4

Implied-in-fact = a reasonable person would have inferred from custom and usage or from plaintiff’s conduct.

Implied-in-law = generally just an action to save a plaintiff’s life.

Question 5

Explain when Implied-in-law consent would be a factor?
5 things:
Defenses to Intentional Torts

Answer 5

1. When the plaintiff is injured, unconscious or unable to grant consent, and
2. There is no close relative nearby to give consent, and
3. There is no reason plaintiff wouldn’t give consent, and
4. A reasonable person would give consent, and
5. And when an immediate decision is necessary

Question 6

Other than implied-in-law, must a plaintiff have the mental capacity to consent?
Defenses to Intentional Torts

Answer 6

Yes, the plaintiff must have the mental capacity to consent.

Question 7

Other than implied-in-law, what groups are not capable of consent?
Defenses to Intentional Torts

Answer 7

Mentally incompetents
Intoxicated persons
Very young children

Question 8

Can one consent by fraud or duress? What result? Defenses to Intentional Torts

Answer 8

No, one cannot consent by fraud or duress. Result is invalid consent.

Question 9

Can one exceed the scope of consent?

Defenses to Intentional Torts

Answer 9

No, defendant will be liable if defendant goes beyond the act consented to or does something substantially different.

Question 10

Can one consent to a serious crime?Defenses to Intentional Torts

Answer 10

No, a person cannot consent to a serious crime.

Question 11

Define Self Defense

Defenses to Intentional Torts

Answer 11

When a defendant has a reasonable belief that a tort is about to happen to his person, he may use reasonable force to prevent such harm.

Question 12

Within self-defense, is a reasonable mistake allowed?

Defenses to Intentional Torts

Answer 12

Yes, a reasonable mistake is allowed.

Question 13

Within self-defense, must the defendant have a reasonable belief that self defense is apparently necessary?
Defenses to Intentional Torts

Answer 13

Yes, the defendant have a reasonable belief that self defense is apparently necessary.

Question 14

Within self-defense, is retaliation allowed?

Defenses to Intentional Torts

Answer 14

No , retaliation is not allowed.

Question 15

Within self-defense, is there a duty to retreat?

Defenses to Intentional Torts

Answer 15

No, the majority rule is that there is no duty to retreat.

Question 16

Is the defense of self-defense available to the initial aggressor?
Defenses to Intentional Torts

Answer 16

No, the defense of self-defense is not available to the initial aggressor.

Question 17

Within self-defense, what force is allowed?

Defenses to Intentional Torts

Answer 17

The force allowed is that which reasonably appears necessary to prevent harm, including deadly force.

Question 18

Within self-defense, is there liability for accidental injuries to third parties?
Defenses to Intentional Torts

Answer 18

No, within self-defense, there is no liability for accidental injuries to third parties.

Question 19

Define Defense of Others

Defenses to Intentional Torts

Answer 19

When the defendant has a reasonable belief that a tort is about to happen to an innocent third-party, he may use reasonable force to prevent such harm.

Question 20

Within defense of others, must the defendant have a reasonable belief that defense of an innocent third party is apparently necessary?
Defenses to Intentional Torts

Answer 20

Yes, the defendant have a reasonable belief that the defense of the innocent third party is apparently necessary.

Question 21

Within defense of others, is a reasonable mistake allowed?

Defenses to Intentional Torts

Answer 21

Yes, a reasonable mistake is allowed.

Question 22

Within defense of others, what force is allowed?

Defenses to Intentional Torts

Answer 22

The force allowed is that which reasonably appears necessary to prevent harm if the injury was threatening defender.

Question 23

Define Defense of Property

Defenses to Intentional Torts

Answer 23

When defendant has a reasonable belief that a tort is about to happen to his property, he may use reasonable force to prevent such harm.

Question 24

Within defense of property, is deadly force ever allowed to protect property?
Defenses to Intentional Torts

Answer 24

No, deadly force is never allowed to protect property.

Question 25

Within defense of property, must a request to desist precede any use of force?
Defenses to Intentional Torts

Answer 25

Yes, a request to desist must precede any use of force in defense of property.

Question 26

Within recovery of property, must there be a timely demand for return of property?

Answer 26

Yes, there must be a timely demand for return of property before recovery of property.

Question 27

Within recovery of property, whom can be recovered from?

Answer 27

Only the wrongdoer.

Question 28

Within recovery of property, can one use reasonable force to recover property?

Answer 28

Reasonable force, not including force sufficient to cause death or serious injury, may be used to recapture chattels.

Question 29

Within recover of property, is deadly force - or force sufficient to cause serious bodily injury - ever allowed to recover property?
Defenses to Intentional Torts

Answer 29

No, force that is sufficient to cause death or serious injury is never allowed to recapture chattels.

Question 30

When do shopkeeper’s have a “privilege”?

Defenses to Intentional Torts

Answer 30

1. They reasonably believe a theft has incurred;

2. They reasonably believe the person detained committed the theft.

Question 31

Within the shopkeeper’s privilege, what “reasonable” steps must also be taken to ensure the privilege?
Defenses to Intentional Torts

Answer 31

1. They used reasonable force to detain
2. They detained the person for a reasonable time
3. They conducted a reasonable investigation.

Question 32

Within the shopkeeper’s privilege, does reasonable force to detain ever include deadly force?
Defenses to Intentional Torts

Answer 32

No, reasonable force to detain never includes deadly force.

Question 33

Within the shopkeeper’s privilege, what generally constitutes a “reasonable time” of detainment?
Defenses to Intentional Torts

Answer 33

Usually 15 to 20 minutes, 30 minutes at most.

Question 34

What is the “test” for Necessity as a defense to intentional torts?

Answer 34

Balance the reasonably anticipated harm against the actual harm.

Question 35

What is Public Necessity?

Defenses to Intentional Torts

Answer 35

Where the act is for the public good

Question 36

Within Public Necessity, is the actor liable for any injury he causes?
Defenses to Intentional Torts

Answer 36

No, within Public Necessity the actor is not liable for any injury he causes.

Question 37

What is Private Necessity?

Defenses to Intentional Torts

Answer 37

Where the act is for the benefit of individual persons or their property from destruction or serious injury.

Question 38

Within Private Necessity, is the actor liable for any injury he causes?
Defenses to Intentional Torts

Answer 38

Within Private Necessity, while the actor is privileged, he must pay for any injury he causes.

Question 39

What are the two types of Necessity?

Defenses to Intentional Torts

Answer 39

Public and Private