Defenses to Intentional Torts Involving Personal Injury

Question 1

What is consent?

What are the different ways to find consent?

Answer 1

Consent - D not liable if P gave legally effective consent. Consent can be
-> actual (express)
-> apparent,
OR
-> presumed,
OR
-> there was an emergency.

Actual (express) - P is willing for the conduct to occur; revoked by clear communication

Apparent - D reasonably believes that P actually consents

Presumed (implied) - D is justified based on prevailing social norms or D has no reason to believe P would not actually consent if D had requested consent

Emergency - usually medical, purpose of conduct is to prevent/reduce risk to P’s life/health

–> Third Restatement (R3d) uses actual and presumed consent; R2d uses express and implied consent

Question 2

How does self defense work?

Answer 2

D must reasonably believe that the force is
-> (i) necessary
AND
-> (ii) proportionate to the force P is intentionally inflicting

D’s force must be defensive, but defense need not be D’s sole motive for force

Question 3

Using non-deadly vs deadly force as self defense?

Answer 3

Non-deadly force - D reasonably believes that
-> (i) P’s force is intentional and unprivileged,
-> (ii) D’s force is proportional,
AND
-> (iii) D can prevent P’s force/threat only by immediate force

Deadly force - D reasonably believes that
-> (i) P’s force is intentional and unprivileged,
-> (ii) D is at risk of death/serious bodily harm/rape,
AND
-> (iii) D can prevail only by immediate use of deadly force

Question 4

What is the no duty to retreat rule?

Answer 4

It’s a majority rule in which before using force, including deadly force, in defense you have NO DUTY TO RETREAT if you can retreat.

Question 5

What happens if P withdraws from using force against D?

Answer 5

D no longer has privilege to use force.

Question 6

Are initial aggressors entitled to use self-defense?

Answer 6

No, unless the non-initial aggressor escalates the level of force being used (going from non-deadly to deadly force) then the initial aggressor is entitled to use self-defense

Question 7

Is D liable for injuries to bystanders during D’s self-defense?

Can D use non deadly force against a bystander?

Answer 7

No

D may use non deadly force against a bystander if
-> (i) the force P is using against D is substantially greater than the force D uses against the bystander,
AND
-> (ii) D’s use of force against the bystander is immediately necessary

Question 8

How does defense of third persons work?

Answer 8

Reasonable belief that defended party is entitled to use force to defend self

Immediately necessary

Question 9

What can’t you do when defending property?

Answer 9

No deadly force allowed - including deadly traps

No force allowed to reclaim real or personal property wrongfully taken - must use legal action (e.g. eviction).

Question 10

What is the “fresh pursuit” exception?

Answer 10

Allows someone to use reasonable force to regain possession of personal property promptly after it was taken.

Question 11

How does defense of property work?

Answer 11

D is privileged to act to prevent P’s imminent intrusion if:
-> P’s intrusion is not privileged;
-> D reasonably believes that P is intruding/about to intrude and D can prevent it by means used;
-> D asks P to stop or such requests would be useless/dangerous;
-> Means used are reasonably proportionate to value of interest protecting;
AND
-> means used are not intended to/likely to cause death/serious bodily injury

Question 12

How does discipline or control of a minor child work?

Answer 12

Parents
-> reasonable force/confinement ok considering child’s age and gravity of behavior; privilege may extend to one acting in loco parentis

Educators -> reasonable force ok to maintain order/safety

Question 13

How does protecting individuals from self-harm (mentally impairment) work?

Answer 13

D may use force against another if
-> (i) D reasonably believes it necessary to protect that person from death/serious bodily harm
AND
-> (ii) that person does not understand nature/consequences of her actions

Question 14

What are the situations in which a private actor can arrest or assist in an arrest (aka they have privilege of arrest and other crime-related conduct)?

Answer 14

Felony arrest
-> ok if crime was actually committed and reasonable to suspect the person arrested committed it

Misdemeanor arrest
-> majority rule - only if committed in presence of arresting party and if breach of peace
-> R3d - only if misdemeanor creates a substantial risk of bodily harm and private actor reasonably believes police will not be able to prevent/terminate crime

Assisting police
-> ok if private actor reasonably believes police need help and police conduct is/could be privileged

Intervenor
-> force ok against an intervenor intentionally impeding actors privileged conduct or aiding arrestee to resist/escape

Question 15

What is law enforcement officials’ privilege with regard to using force?

Does this apply to an off-duty officer?

Answer 15

They are privileged to use force/threat/confinement to
-> arrest
-> investigate/terminate/prevent crime
OR
-> enforce the law

Off-duty officer is a private actor.

Question 16

When can a private actor and/or a law enforcement official use force?

Answer 16

Can only use force if
-> reasonably necessary and proportionate
-> for a legitimate purpose
-> in the context of arrest, intent to arrest is communicated prior to force (unless communication would be useless)

Question 17

What is the merchant’s privilege in using force?

Answer 17

A seller of goods/services is privileged to use force for the purpose of
-> (i) investigating potential theft,
-> (ii) recapturing personal property,
OR
-> (iii) facilitating arrest

Merchant must reasonably believe that the other has
-> taken merchandise
OR
-> failed to pay for purchase

Merchant’s use of force must be
-> (i) on or immediately near merchant’s premises,
-> (ii) reasonable,
AND
-> (iii) of reasonable duration; deadly force not ok