Defenses to Intentional Torts Involving Personal Injury

Question 1

Consent

Answer 1

Express Consent
Implied Consent
Lack of Capacity

Question 2

Express Consent

Answer 2

The plaintiff expressly consents if she, by words or actions, manifests the willingness to submit to the defendant’s conduct. Conduct may not exceed the scope of the consent.

Question 3

Express Consent - Mistake

Answer 3

Consent by mistake is valid consent unless the defendant caused the mistake or knew of its and took advantage of it.

Question 4

Express Consent - Fraud

Answer 4

Consent induced by fraud is invalid if it goes to an essential matter. If the fraud that induced the consent goes only to a collateral matter, then the consent is still valid.

Question 5

Express Consent - Duress

Answer 5

Consent given while under duress (physical force or threats) is not valid. The threat, must be of present action, not of future action.

Question 6

Implied Consent

Answer 6

The plaintiff’s consent is implied when the plaintiff is silent (or otherwise nonresponsive) in a situation in which. a reasonable person would object to the defendant’s actions.

Question 7

Emergency Situation

Answer 7

When immediate action is required to save the life or health of a patient who is incapable of consenting to treatment, such consent is ordinarily unnecessary.
Even in an emergency situation, a competent and conscious patient’s right to refuse treatment cannot be overridden.

Question 8

Implied Consent - Injuries Arising from Athletic Contests

Answer 8

Consent may also be implied by custom or usage (contact sport)
Majority - injured player can recover only for a reckless disregard of a player’s safety, such as a violation of a safety rule designed primarily to protect participants from serious injury.

Question 9

Mutual Consent to Combat

Answer 9

Boxing or prizefighting - consents - precluded from recovering
Street fighting or other illegal activities:
Majority - Consent to such acts is not a defense because one cannot consent to a criminal act.
Minority - Court hold to the contrary.

Question 10

Lack of Capacity

Answer 10

A plaintiff’s lack of capacity due to youth, intoxication, or incompetence may negate the validity of her consent.

Question 11

Self Defense - Use of Reasonable Force

Answer 11

A person may use reasonable force to defend against an offensive contact or bodily harm that he reasonable believes it about to be intentionally inflicted upon him. The force used in self-defense must be reasonably proportionate to the anticipated harm. A persons’ mistake belief that he is in danger, so long as it is a reasonable mistake, does not invalidate the defense.

Question 12

Self-Defense - Use of Deadly Force

Answer 12

The defendant may use deadly force only if he has a reasonable belief that force sufficient to cause serious bodily injury or death is about to be intentional inflicted upon him

Question 13

Self-Defense - No obligation to Retreat

Answer 13

Majority - judicial decision or a “stand your ground” statute, a person is not required to retreat before using force, including deadly force, in defense.
Minority - A person has a duty to retreat before she may use deadly force in defense, if she can do so safely but this duty does not apply if the defendant is in her own home.

Question 14

Self-Defense - Initial Aggressor

Answer 14

The initial aggressor is not entitled to claim self-defense unless the other party has responded to non deadly force with deadly force.

Question 15

Self-Defense - Third-Party Injuries

Answer 15

The act is not liable for injuries to bystanders that occur while he is acting in self-defense, so long as those injuries were accidental, rather than deliberate, and the actor was not negligent with respect to the brystander.

Question 16

Defenses of Others

Answer 16

One is justified in using reasonable force in defense of others upon a reasonable belief that the defended party would be entitled to use self-defense.
The defender may use force that is proportionate to the anticipated harm to the other party.
He is not liable for acting on a mistaken belief that the third party is in danger as Lons as his belief is reasonable.

Question 17

Defense of Property - Reasonable Force Allowed

Answer 17

A person may use reasonable force to defend her property if she reasonably believes it is necessary to prevent tortious harm to her property

Question 18

Defense of Property - Use of Deadly Force Not Allowed

Answer 18

Deadly force may not be used merely in defense of property. A person may never use a deadly mechanical device to defend her property.

Question 19

Defense of Property - Reasonable Force to Prevent Intrusion Upon Real Property

Answer 19

A possessor of land federally may use reasonable force to prevent or terminate another’s intrusion upon her land. However, the possessor may not use force to prevent or terminate the visitor’s intrusion on her land if the visitor is acting under necessity.
In addition, a landowner is generally entitled to use reasonable force only after making a request that the trespasser desist and the trespasser ignores the request.
Such a request is not required if the landowner reasonable believes that a request will be useless or that substantial harm will be done before it can be made.
The land possessor is not liable for using force if she makes a reasonable mistake with respect to an intrusion occurring on her land.

Question 20

Defense of Property - Recapture of Chattels

Answer 20

A person may use reasonable force to reclaim her personal property that another has wrongfully taken. Before using reasonable force, the person must request the return of the chattel unless the request would be futile. If the original taking was lawful and the current possessor fo the property has merely retained possession beyond the period of time to which the owner consented, then only peaceful means may be used to reclaim the chattel.

Question 21

Defense to Property - Force to Regain Possession of Land

Answer 21

Common law - an owner or a possessor of land was permitted to use reasonable force to regain possession of that land from one who had wrongfully taken possession of it.
Modern statutes - provide procedures for recovery or reality; therefore, the use of force is no longer allowed..

Question 22

Parental Discipline

Answer 22

A parent may use reasonable force or impose reasonably confinement as is necessary to discipline a child, taking into consideration the age of child and the gravity of the behavior.
An educator has the same privilege unless the parent places restrictions on that privilege.

Question 23

Privilege of Arrest - Felony - Arrest by Private Citizen

Answer 23

A private citizen is privileged to use force (e.g., commit a battery or false imprisonment tort) to make an arrest in the case of a felony if the felony has in fact been committed and the arresting party has reasonable grounds to suspect that the person being arrested committed it.

It is a defense to make a reasonable mistake as to the identity of the felon but not as to the commission of the felony.

Question 24

Privilege of Arrest - Felony - Arrest by Police Officer

Answer 24

A police officer must reasonably believe that a felony has been committed and that the person she arrests committed it. Unlike a private citizen, a police officer who makes a mistake as to the commission of a felony is not subject to tort liability.

Question 25

Privilege of Arrest - Misdemeanor

Answer 25

A police officer may make an arrest if the misdemeanor is being committed or reasonably appears about to be committed in the presence of the officer.

When the person effecting the arrest is a private citizen, the misdemeanor must also be a breach of the peace.