INTENTIONAL TORT ‘PRIVILEGES’ Flashcards
Affirmative Defenses
Notwithstanding the fact that plaintiff is able to make a prima facie case, defendant may be able to avoid (or to limit) liability by establishing an affirmative defense. It is the allocation of the burden of persuasion on the defendant that distinguishes issues as matters of affirmative defense as against parts of the plaintiff’s prima facie case. The following kinds of affirmative defenses are characteristic to tort systems:
Defendant might convince the judge that he or she is immune from all tort causes of action, some tort causes of action, or tort causes of action arising out of activities at a certain level of detail.
Defendant might convince the judge or jury (as the case might be) that he or she had a privilege to injure plaintiff.
Defendant might convince the judge or jury (as the case might be) that plaintiff’s injury was caused by his own negligence or fault.
The ‘Consent’ Affirmative Defense
1 One who effectively consents to conduct of another intended to invade his interests cannot recover in an action of tort for the conduct or for harm resulting from it.
2 To be effective, consent must be
A by one who has the capacity to consent or by a person empowered to consent for him, and
B To the particular conduct, or to substantially the same conduct.
3 Conditional consent or consent restricted as to time, area or in other respects is effective only within the limits of the condition or restriction.
4 If the actor exceeds the consent, it is not effective for the excess.
5 Upon termination of consent its effectiveness is terminated, except as it may have become irrevocable by contract or otherwise, or except as its terms may include, expressly or by implication, a privilege to continue to act.
Meaning of Consent
1 Consent is willingness in fact for conduct to occur. It may be manifested by action or inaction and need not be communicated to the actor.
2 If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact.
Consent Under Mistake, Misrepresentation or Duress
1 Except as stated in Subsection (2), consent to conduct of another is effective for all consequences of the conduct and for the invasion of any interests resulting from it.
2 If the person consenting to the conduct of another is induced to consent by a substantial mistake concerning the nature of the invasion of his interests or the extent of the harm to be expected from it and the mistake is known to the other or is induced by the other’s misrepresentation, the consent is not effective for the unexpected invasion or harm.
3 Consent is not effective if it is given under duress.
Consent to Crime
1 Except as stated in Subsection (2), consent is effective to bar recovery in a tort action although the conduct consented to is a crime. 2 If conduct is made criminal in order to protect a certain class of persons irrespective of their consent, the consent of members of that class to the conduct is not effective to bar a tort action.
Self-defense by Force NOT Threatening Death or Serious Bodily Harm
1 An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to defend himself against unprivileged harmful or offensive contact or other bodily harm which he reasonably believes that another is about to inflict intentionally upon him.
2 Self-defense is privileged under the conditions of (1), although the actor correctly or reasonably believes that he can avoid the necessity of so defending himself,
A by retreating or otherwise giving up a right or privilege, or
B by complying with a command with which the actor is under no duty to comply or which the other is not privileged to enforce by the means threatened.
Self-defense by Force THREATENING Death or Serious Bodily Harm
1 Subject to (3), an actor is privileged to defend himself against another by force intended or likely to cause death or serious bodily harm, when he reasonably believes that
A the other is about to inflict upon him an intentional contact or other bodily harm, and that
B he is thereby put in peril of death or serious bodily harm or ravishment, which can safely be prevented only by the immediate use of such force.
2 The privilege stated in (1) exists although the actor correctly or reasonably believes that he can safely avoid the necessity of so defending himself by
A retreating if he is attacked within his dwelling place, which is not also the dwelling place of the other, or
B permitting the other to intrude upon or dispossess him of his dwelling place, or
C abandoning an attempt to effect a lawful arrest.
3 The privilege does not exist if the actor correctly or reasonably believes that he can with complete safety avoid the necessity of so defending himself by
A retreating …, or
B relinquishing the exercise of any right or privilege …
The ‘Defense of Others’ Affirmative Defense
1 The actor is privileged to defend a third person from a harmful or offensive contact or other invasion of his interests of personality under the same conditions and by the same means as those under and by which he is privileged to defend himself if the actor correctly or reasonably believes that
A the circumstances are such as to give the third person a privilege of self-defense, and
B his intervention is necessary for the protection of the third person
Property: Defense of Possession by Force Threatening Death or Serious Bodily Harm
The intentional infliction upon another of a harmful or offensive contact or other bodily harm by a means which is intended or likely to cause death or serious bodily harm, for the purpose of preventing or terminating the other’s intrusion upon the actor’s possession of land or chattels, is privileged if, but only if, the actor reasonably believes that the intruder, unless expelled or excluded, is likely to cause death or serious bodily harm to the actor or to a third person whom the actor is privileged to protect.
Property: Defense of Possession by Force NOT Threatening Death or Serious Bodily Harm
1 the intrusion is not privileged or the other intentionally or negligently causes the actor to believe that it is not privileged, and
2 the actor reasonably believes that the intrusion can be prevented or terminated only by the force used, and
3 the actor has first requested the other to desist and the other has disregarded the request, or the actor reasonably believes that a request will be useless or that substantial harm will be done before it can be made.
Property: Use of Mechanical Device Not Threatening Death or Serious Bodily Harm
1 the use of such a device is reasonably necessary to protect the land or chattels from intrusion, and
2 the use of the particular device is reasonable under the circumstances, and
3 the device is one customarily used for such a purpose, or reasonable care is taken to make its use known to probable intruders.
Effect of Excessive Force
1 the actor is liable for so much of the force or confinement as is excessive;
2 the other’s liability for any intrusion upon the actor’s land or chattels which the other may have made is not affected;
3 the other has the privilege to defend himself against the actor’s use or attempted use of excessive force or confinement.
The ‘Public Necessity’ Affirmative Defense
One is privileged to commit an act which would otherwise be a trespass to a chattel or a conversion if the act is or is reasonably believed to be necessary for the purpose of avoiding a public disaster.
One is privileged to enter land in the possession of another if it is, or if the actor reasonably believes it to be, necessary for the purpose of averting an imminent public disaster
The ‘Private Necessity’ Affirmative Defense
1 One is privileged to commit an act which would otherwise be a trespass to the chattel of another or a conversion of it, if it is or is reasonably believed to be reasonable and necessary to protect the person or property of the actor, the other or a third person from serious harm, unless the actor knows that the person for whose benefit he acts is unwilling that he shall do so.
2 Where the act is for the benefit of the actor or a third person, he is subject to liability for any harm caused by the exercise of the privilege.
The Privilege of Discipline
1 A parent is privileged to apply such reasonable force or to impose such reasonable confinement upon his child as he reasonably believes to be necessary for its proper control, training or education.
2 One other than a parent who has been given by law or has voluntarily assumed in whole or in part the function of controlling, training, or educating a child, is privileged to apply such reasonable force or to impose such reasonable confinement as he reasonably believes to be necessary for its proper control, training, or education except in so far as the parent has restricted the privilege of one to whom he has entrusted the child.
