Defenses to Intentional Torts Involving Personal Injury Flashcards
What are the four major defenses to intentional torts involving personal injury?
(1) Consent
(2) Self-defense and defense of others
(3) Defense of property
(4) Parental authority
What are the four types of consent that are legally effective?
(1) Actual consent
(2) Apparent consent
(3) Presumed consent
(4) Emergencies doctrine
The burden of proof is typically on which side for proving lack of actual consent?
Most jurisdictions place the burden on the plaintiff to prove lack of actual consent.
What is actual consent?
Actual consent is where the plaintiff expressly consents to the defendant’s otherwise tortious intentional conduct. The plaintiff consents if they are willing for that conduct to occur.
Can the plaintiff place conditions on the scope of their consent?
Yes, plaintiffs can place conditions that limit the time, place or otherwise of their consent.
Consent is only legally effective if within those limits.
Can actual consent be revoked? If yes, what is the legal effect? Are there any exceptions?
Yes, consent can be revoked by clear communication. Revoked consent is no longer legally effective.
Exception: when it would be unreasonably burdensome for the defendant to immediately comply with revocation.
Can a plaintiff consent to a crime?
Jurisdictions are split on this, but the modern trend (and Third Restatement) say yes - but consent is not legally effective if they are a member of the class the crime is intended to protect.
Is actual consent given by a plaintiff due to a substantial mistake legally effective?
Yes, consent given (even mistakenly) is valid, unless the defendant caused the mistake or knew of the mistake.
Is actual consent given while under duress valid?
No, duress (e.g. physical force or threats) invalidate consent.
The threat must be of present action, however.
Is actual consent given in response to economic duress valid? What about moral pressure?
Yes, threats of economic duress do not render a plaintiff’s consent invalid.
Moral pressure is also insufficient to invalidate consent.
A plaintiff’s lack of capacity due to _____, _____, or ____ may negate the validity of consent.
youth, intoxication, or intellectual incompetence
What is ‘apparent consent’?
A defendant is not liable for otherwise tortious conduct if the defendant reasonably believes that the plaintiff actually consents, even if the plaintiff in reality does not.
What is ‘presumed consent’?
A defendant is not liable for otherwise tortious conduct if:
(1) The defendant is justified in engaging in the conduct in the absence of plaintiff’s consent due to social norms
(2) The defendant has no reason to believe that the plaintiff would not have consented
What is the ‘emergency doctrine’ for consent?
A defendant is not liable for tortious conduct if:
(1) The purpose of the conduct was to prevent or reduce a risk to the life or health of plaintiff
(2) The defendant reasonably believes that the **conduct is necessary **OR that it substantially outweights the plaintiff’s interest in avoiding it
(3) Immediate action is necessary and so it’s impractical to obtain consent
(4) The defendant had no reason to believe the plaintiff would not have consented if there was time/a chance.
What are some considerations for determining whether a participant in sports can rely on apparent or presumed consent?
- Whether the conduct was a violation of the safety rules
- Whether the conduct typically occurs
- Whether the conduct involves significant risk of serious injury or death
