Intentional Torts - Affirmative Defenses Flashcards
The 3 Affirmative Defenses to Intentional Torts are:
1) Consent; 2) Protective Privileges; 3) The Necessity Doctrines.
The Affirmative Defense of Consent requires a showing that:
1) The Plaintiff had legal capacity to give the consent; 2) Words of consent were given, if express consent is argued, and such express consent was not obtained by fraud or duress; 3) The defendant made reasonable inferences/conclusions in the context of Implied Consent; 4) The consent has a proper boundary and scope.
The 3 Protective Privilege defenses are:
1) Self-Defense; 2) Defense of Others; 3) Defense of Property.
The affirmative defense of protective privilege requires a showing that:
1) The Defendant’s response was properly timed, i.e. defense not revenge; 2) The defendant had a reasonable belief that the threat was genuine; 3) The Degree of Force was appropriate/proportional.
In what context will the use of deadly force ALWAYS be considered excessive force?
In the defense of property. When defending property, one may not legitimately use deadly force.
The Doctrine of Public Necessity allows for
invasion of another’s property in an emergency, to protect the community or a substantial part thereof.
If the Public Necessity Doctrine is properly invoked, the defendant’s liability is
ZERO. Public Necessity is an absolute defense, discouraging hesitation in the altruistic rescuer.
The Doctrine of Private Necessity allows for
a defendant to legally trespass on the property of another in order to protect his own private interests, i.e. property or health.
Consequences of invoking the Private Necessity Doctrine:
1) The defendant remains liable for compensatory damages to property.
2) No liability for nominal or punitive damages.
3) The burdened property holder’s Protective Privileges are temporarily suspended for the duration of the emergency, meaning the burdened property owner cannot evict/expel/eject.
