Defenses to Intentional Torts

Question 1

What are the requirements for the defense of consent?

Answer 1

1. There must be valid consent; and

2. D must stay within the boundaries of that consent

Question 2

What are the two types of consent?

Answer 2

Express (actual) and Implied

Question 3

When is express consent not a defense?

Answer 3

1. When consent was mistaken and D was aware of the mistake and took advantage
2. When consent was induced by fraud if it goes to an essential matter
3. When consent was obtained by duress (does not include threats of future action)

Question 4

What is implied consent?

Answer 4

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

Question 5

Who is incapable of consent?

Answer 5

Those without capacity:
Incompetents
Drunks
Young Children

Note: This differs from intent, where incapacity is no defense.

Question 6

What are the requirements for self-defense / defense of others?

Answer 6

1. May be used only to prevent the commission of a tort
2. Any mistake must be reasonable
3. 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.

Question 7

When is self-defense appropriate?

Answer 7

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

Question 8

Must the person engaging in self-defense retreat?

Answer 8

Only when using deadly force in defense (unless the actor is in her home)

Question 9

Is self-defense available to an initial aggressor?

Answer 9

Generally, no. However, if the initial aggressor clearly withdraws from the altercation and is subsequently pursued, he regains the privilege.

Question 10

Is mistake allowed for self-defense?

Answer 10

Yes, so long as it was reasonable.

Same for defense of others

Question 11

How much force may be used in self-defense?

Answer 11

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

Question 12

What are the requirements for defense of property?

Answer 12

1. May be used only to prevent the commission of a tort
2. Any mistake must be reasonable
3. 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.

Question 13

In defending property, must a request to desist or leave be made?

Answer 13

Yes, unless it would be futile or dangerous

Question 14

Does defense of property apply after the tort has been committed?

Answer 14

No, except when in hot pursuit of one who has tortiously dispossessed the owner of their chattels.

Question 15

Who is defense of property not available against?

Answer 15

One who has a privilege to enter the land (necessity, recapture of chattels, etc)

Question 16

When is a reasonable mistake allowed for defense of property?

Answer 16

WIth regards to whether an intrusion has occurred or whether a request to desist is required.

Question 17

When is a reasonable mistake not allowed for defense of property?

Answer 17

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.

Question 18

May deadly force be used in defense of property?

Answer 18

NO - unless the invasion entails a serious threat

Remember: many “home defense” cases are really just “self-defense” cases

Question 19

May force be used in the recapture of chattels?

Answer 19

Only when in hot pursuit. Otherwise, only peaceful means may be used.

Question 20

From whom may an owner recapture their chattels by force?

Answer 20

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.

Question 21

Whose land does the owner have a privilege to enter to recapture chattel?

Answer 21

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.

Question 22

Is mistake allowed with regards to the use of force for recapture of chattels?

Answer 22

Generally no. However, there is an exception under the shopkeeper’s privilege.

Question 23

How much force may be used in the recapture of chattels?

Answer 23

Reasonable force, which does not include force sufficient to cause serious bodily harm or death

Question 24

What accompanies the privilege to arrest?

Answer 24

1. Carries privilege to enter onto another’s land to make the arrest
2. Even if the arrest is privileged, the actor may be liable for subsequent misconduct

Question 25

What are the requirements for the privilege of arrest for a misdemeanor?

Answer 25

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

Question 26

What are the requirements for the privilege of arrest for a felony?

Answer 26

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.

Question 27

What are the requirements for the defense of necessity?

Answer 27

1. It must be reasonably and apparently necessary to avoid a threatened injury from a natural or other force; and
2. The threatened injury must be substantially more serious than the invasion that is undertaken to avert it

Question 28

What is a public necessity?

Answer 28

When the otherwise tortious act is committed for the public good

Question 29

What is a private necessity?

Answer 29

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.

Question 30

To which tortious acts is necessity a defense?

Answer 30

Only property torts.

Question 31

What is the defense of discipline?

Answer 31

A parent or teacher may use reasonable force in disciplining children