Defenses to Intentional Torts Flashcards
Consent
P was willing for tortious contact to occur
a question of fact
express consent v. implied consent
consent procured by fraud is invalid
Defense of Self
Objective; reasonable belief
D cannot be initial aggressor
Use of force must be necessity at the time force is used and be proportionate to other force
Permitted use of force against serious bodily injury
Minority: Retreat to wall
Majority: stand your ground
Defense of Others
Mirrors self-defense
When D reasonable believes 3rd party could use self-defense
Intervention necessary at that time
Minority: if D believes that use of force is necessary, D may use defense of others
Majority: D steps into shoes of 3rd party
Defense of Real Property
Defense of land or property from intrusion
- P is trespassing
- D has reasonable belief force is necessary
- D requested P to leave
intruder must use force for D to use violence
no deadly force unless human life is in danger
reasonable force to eject trespasser
Poliak v. Adcock
TN Case
Man hits daughter’s boyfriend with a board of wood while he is in bed and claimed defense of property
Defense and Recovery of Personal Property
Defense of Chattel
D can use force to take chattel back that were taken by P but must be exercised properly
D is privileged to use reasonable force to recover chattel immediately after dispossession limited to:
hot pursuit
demand unless useless or dangerous
reasonable under circumstance
Shopkeeper’s Privilege
allows shopkeepers to hold someone if they reasonably believe they have committed theft
Public Necessity
D acting to prevent some harm from some force of nature or other independent cause not connected to P
anyone acting as “champion of the public” can use this defense; complete privilege, D pays $0 in damage to P
- Privilege to destroy, damage, or use real property
- If she reasonably believes
- it is necessary to avert
- imminent
- public disaster
Private Necessity
Protects interest unique to D. Limited privilege
No liability for technical tort but D must pay for the actual damages caused to P