Defenses to Intentional Torts Flashcards
What are the requirements for the defense of consent?
- There must be valid consent; and
2. D must stay within the boundaries of that consent
What are the two types of consent?
Express (actual) and Implied
When is express consent not a defense?
- When consent was mistaken and D was aware of the mistake and took advantage
- When consent was induced by fraud if it goes to an essential matter
- When consent was obtained by duress (does not include threats of future action)
What is implied consent?
That which a reasonable person would infer from custom and usage of P’s conduct. Consent implied by law arises when action is necessary to save a person’s life or some other important interest in person or property
Who is incapable of consent?
Those without capacity:
Incompetents
Drunks
Young Children
Note: This differs from intent, where incapacity is no defense.
What are the requirements for self-defense / defense of others?
- May be used only to prevent the commission of a tort
- Any mistake must be reasonable
- The amount of force used must be proper
Note: We are concerned only with D’s conduct in response to an apparent tort committed against D or a third party by P.
When is self-defense appropriate?
When a person reasonably believes that she is being or is about to be attacked. In defense, she may use such force as is reasonably necessary to protect against injury
Same for defense of others
Must the person engaging in self-defense retreat?
Only when using deadly force in defense (unless the actor is in her home)
Is self-defense available to an initial aggressor?
Generally, no. However, if the initial aggressor clearly withdraws from the altercation and is subsequently pursued, he regains the privilege.
Is mistake allowed for self-defense?
Yes, so long as it was reasonable.
Same for defense of others
How much force may be used in self-defense?
Only enough force as is reasonably necessary to prevent injury. If more force than necessary is used, the defense is lost.
Same for defense of others
What are the requirements for defense of property?
- May be used only to prevent the commission of a tort
- Any mistake must be reasonable
- The amount of force must be proper
Note: We are concerned only with D’s conduct in response to an apparent tort committed against D or a third party by P.
In defending property, must a request to desist or leave be made?
Yes, unless it would be futile or dangerous
Does defense of property apply after the tort has been committed?
No, except when in hot pursuit of one who has tortiously dispossessed the owner of their chattels.
Who is defense of property not available against?
One who has a privilege to enter the land (necessity, recapture of chattels, etc)
When is a reasonable mistake allowed for defense of property?
WIth regards to whether an intrusion has occurred or whether a request to desist is required.
When is a reasonable mistake not allowed for defense of property?
WIth regards to whether the entrant has a privilege to enter the land, unless the entrant acts in such a way as to lead a reasonable person to believe no privilege existed.
May deadly force be used in defense of property?
NO - unless the invasion entails a serious threat
Remember: many “home defense” cases are really just “self-defense” cases
May force be used in the recapture of chattels?
Only when in hot pursuit. Otherwise, only peaceful means may be used.
From whom may an owner recapture their chattels by force?
Only against a tortfeasor or a third party who knows or should know that the chattel was tortiously obtained. No force may be used against an innocent party.
Whose land does the owner have a privilege to enter to recapture chattel?
Either a wrongdoer or an innocent third party, at a reasonable time and in a reasonable manner. Owner must first make a demand to return to chattel. If the owner enters onto an innocent party’s land, owner is liable for any damage caused.
Is mistake allowed with regards to the use of force for recapture of chattels?
Generally no. However, there is an exception under the shopkeeper’s privilege.
How much force may be used in the recapture of chattels?
Reasonable force, which does not include force sufficient to cause serious bodily harm or death
What accompanies the privilege to arrest?
- Carries privilege to enter onto another’s land to make the arrest
- Even if the arrest is privileged, the actor may be liable for subsequent misconduct
What are the requirements for the privilege of arrest for a misdemeanor?
If the arrest is for a misdemeanor, it is privileged only if for a breach of the peace violation that occurs in D’s presence
What are the requirements for the privilege of arrest for a felony?
If the arrest is for a felony, a police officer may make a reasonable mistake. Citizens may make a reasonable mistake regarding the identity of the felon, but not regarding whether the felony occurred.
What are the requirements for the defense of necessity?
- It must be reasonably and apparently necessary to avoid a threatened injury from a natural or other force; and
- The threatened injury must be substantially more serious than the invasion that is undertaken to avert it
What is a public necessity?
When the otherwise tortious act is committed for the public good
What is a private necessity?
When the otherwise tortious act is solely to benefit a limited number of people. The actor must pay for any injury he causes unless the act was to benefit the property owner.
To which tortious acts is necessity a defense?
Only property torts.
What is the defense of discipline?
A parent or teacher may use reasonable force in disciplining children
