defenses to torts Flashcards
self defense
A D is excused from liability resulting from D’s [1] use of reasonable force [2]
necessary to prevent harmful or offensive contact, confinement, or imprisonment [3] when D
reasonably believes [4] necessary to prevent an imminent threat of injury to D. As an affirmative
defense, D has the burden to prove these elements by a preponderance of the evidence.
reasonable force
An individual may respond to
threatened harm they reasonably—even if mistakenly—believe necessary to prevent harm
to themselves. It is applied as an objective standard and therefore ignores any particular
sensitivities or paranoia unique to D.
degree of force
The degree of force used by D must be reasonably necessary,
under the circumstances, to prevent the threatened harm.
deadly force
Deadly force used in self-defense, in most
jurisdictions, is justified only where D is threatened with serious bodily injury
or death, D issues a verbal demand to cease, and D retreats before using
deadly force. Even if D is in their own home, D can only use deadly force to
repel an invader when they reasonably believe the invader threatens harm to
D or other persons in D’s home. However, where D reasonably believes
demand and retreat would expose them to greater threat of injury or death
due to the delay in the face of imminence, no such demand and/or retreat is
necessary.
TO PREVENT IMMINENT / HARMFUL OR OFFENSIVE CONTACT RULE:
see rules from assault and battery
private necessity
A D may assert the privilege of private necessity to shield them from nominal
and punitive—but not compensatory—damages where D’s [1] interference with the land or
property of another [2] was necessary to prevent greater harm to D’s person, D’s property, or
third persons’ person or property [3] with no less-damaging way of preventing the harm.
preventing greater harm to self/ other rule
A D is privileged under
private necessity if the damage to P’s interests were reasonably necessary to avoid
greater harm to D (or others’) person or property. There must be
damages private necessity
Even if D’s intrusion on P’s land is privileged by reason of private necessity,
D must pay compensatory damages for any actual damages to P.
public necssity
necessity is a complete defense (exists when the defendant’s interference is done to protect the community at large).
consent
Consent is a defense to intentional tort liability so long as the consent is valid.
Generally, consent is valid when it is objectively manifested (express or implied) or imposed by law.
implied intent
based on the nature of plaintiffs activities
found through local use or customs
scope may not be succeeded\
apparent consent
behavior indicticating and communicating consent
express consent
a clear expression of specific consent to contact confinement or another act
scope may not be succeeded
medical reasons consent not needed
medical reasons consent not needed
\patient unable to give consent
risk of bodily harm
reasonable person would consent under the circumstances
physician has no reason to believe this person would refuse
reasons consent is invalid
The defendant has actual knowledge that the plaintiff does not consent.
The plaintiff lacks capacity to consent.
The defendant acts beyond the scope of consent granted by the plaintiff.
The purported consent is induced by fraud.
The purported consent is induced by physical threat.
The act the plaintiff purportedly consents to is criminal in that jurisdiction (traditional majority rule).
