Intentional Torts & Defenses

Question 1

Consent (general rule)

Answer 1

A person who consents, or apparently consents, by words or conduct, to acts that would otherwise constitute an intentional tort can’t recover damages for those acts

Question 2

Expressed consent

Answer 2

when plaintiff says he submits to defendant’s conduct

Question 3

Implied consent

Answer 3

when the plaintiff fails to object, or is silent in a situation in which a reasonable person would object to the defendant’s actions
a. Silence in the place of an unreasonable (all negative, no value, dangerous to plaintiff) demand doesn’t constitute implied consent
b. Consent cannot be implied by failure to object if implied consent was given because of deceit

Question 4

Mistake of material fact and collateral matter in regards to consent

Answer 4

a. Consent induced by fraud or misrepresentation as to the collateral matter, not the essential character of the act itself, will not invalidate consent (dunking booth professor example professor’s “why” of being dunked was collateral, not material fact)
b. A misunderstanding of the material fact negates consent (example of the lawyer who lied and said he was infertile when he wasn’t; unmarried non-doctor in birthing room)

Question 5

Consent regarding criminal acts

Answer 5

a. Jurisdictions are split on whether consent to an illegal act a valid consent.
b. Even states that generally recognize the validity of consent to an illegal act will not deny recovery to those whom the statute making the conduct illegal was designed to protect (e.g., 15 y/o girl consenting to sleeping with a 50 y/o man).

Question 6

Self-Defense (general rule)

Answer 6

when a person (1) reasonably believes she is being or is about to be immediately attacked (battered), she may (2) use such force as is reasonably necessary (proportionate) to protect against injuries.

Question 7

Self-Defense (nuances)

Answer 7

1.) Reasonable belief: believes force is necessary to protect himself
2.) Provocation: insults, verbal threats, etc. are usually never found by courts to establish privilege
3.) Amount of force: proportionate to age, height, weight, etc.
4.) Use of deadly force requires reasonable apprehension of loss of life

Question 8

Attempt to retreat required for self-defense?

Answer 8

1. Do not need to attempt to retreat before using non-deadly force
2. Check statute and jurisdiction to see if retreat it required before using deadly force
   a. Majority: retreat not required before using deadly force if it’s necessary/proportionate
   b. Minority: if not in your own home, retreat required before using deadly force if you can do so safely

Question 9

Defense of others (general rule)

Answer 9

a person can use (1) reasonable (proportionate) force to defend another when the person using force (2) reasonably (or in some jurisdictions correctly) believes that the other person would have been privileged to defend himself

Question 10

Defense of others (reasonable mistake)

Answer 10

ii. “Reasonable mistake” aspect regarding the necessity of taking action varies by court
1. “…intervenor steps into the shoes of the person he is defending, and is privileged only when that person would be privileged to defend himself” (125).  if intervention turns to helping the aggressor, intervenor is liable.
2. “Other courts hold that the defendant is privileged to use reasonable force to defend another even when he is mistaken in his belief that intervention is necessary, so long as his mistake was reasonable” (125).

Question 11

Defense of property (general rule)

Answer 11

a person may use reasonable force to defend one’s property against unlawful intrusion if either (a) the conduct of the intruder reasonably indicates that a request to leave would be useless or dangerous, OR (b) the person requested that the intruder leave to no avail

Question 12

Privileged defense of property scenarios

Answer 12

1. Entry must be unlawful and the force used must be reasonable
2. The trespasser is committing a felony of violence, felony punishable by death, and/or endangering human life
3. When the invader threatens the personal safety of the possessor or his family, the defendant may use deadly force if it’s necessary in the circumstances (becomes self-defense at that point)

Question 13

Unprivileged defense of property

Answer 13

1. When defendant is privileged to be on the property
2. When a peaceful invasion occurs in the presence of the possessor, the use of any force at all is unreasonable unless a request has been made to depart
3. Spring-loaded shotgun case (Katko v. Briney)

Question 14

Defense of property (nuances)

Answer 14

1. Mistakes: mistaken unlawful entry can’t use defense of property
2. If you eject a trespasser into a dangerous situation, you are at risk/liable for their injuries

Question 15

Recovery of property (general rule)

Answer 15

if property is already lost because (1) a person obtained your property unlawfully, then (2) the proper owner may only use peaceful means to recover the property (e.g., if someone took your stuff a long time ago, or moved into your house for a while, you must go to court or the law to get it back), UNLESS
1. they are in fresh/hot pursuit and
2. have demanded and been refused return of the property (unless such demand would be clearly futile or dangerous) and only then
3. they can use reasonable force under the circumstances

Question 16

Recovery of property (Shopkeeper’s Privilege)

Answer 16

1. Some jurisdictions allow this privilege to protect merchants if (1) reasonable belief for (2) reasonable investigation
   a. Most courts agree that if the merchant forces alleged shoplifter to sign a confession before they can leave, that merchant is liable; also liable when won’t release alleged shoplifter until he pays
   b. Usually doesn’t extend to protect defamation
   c. See Bonkowski v. Arlan’s Department Store (store security guard had reason to believe that plaintiff had stolen from the store)

Question 17

Public Necessity (general rule)

Answer 17

1. General rule: a person may interfere with the real or personal property of another where the interference is
   a. Actually or reasonably apparently necessary to avoid threatened injury from a natural or other force AND
   b. Where it’s reasonable because the threatened injury is substantially more serious than the invasion that is undertaken to prevent it
   c. ***when this interreference is for the public good (general human safety), the defense is absolute (absent a statute providing for compensation, which exists in some jurisdictions)

Question 18

Private Necessity (general rule)

Answer 18

a person may interfere with the real or personal property of another where the interference is:
a. Actually or reasonably apparently necessary to avoid threatened injury from a natural or other force (like a storm); AND
b. Where it is reasonable because the threatened injury is substantially more serious than the invasion that is undertaken to prevent it;
c. When the interference is to benefit the person(s) who interfere or to protect any property from destruction or serious injury, the defense is qualified, and the actor must pay for any injury he causes

Question 19

Authority of Law (general rule)

Answer 19

if defendant is authorized or duly commanded by law to do what he does, he’s of course not liable for doing it.
1. Authorized personnel: military, prison officials, cops, officials at mental health facility may act with authority of law, engaging in contacts that would otherwise be tortious
2. Authorized personnel only liable if they act improperly, e.g., using excessive force, not using due diligence, etc.

Question 20

Authority of Discipline (general rule)

Answer 20

one who has responsibility for a child when charged with maintaining discipline may use reasonable force or restraint when performing that duty (e.g., parent, caregiver, teacher, etc.)

Question 21

Authority of Justification (general rule)

Answer 21

Where it seems unfair to hold defendant liable, but the facts do not meet the requirements of any other privilege, a defendant’s actions may be justified (and privileged) if they were reasonable and done to protect others from personal injury or to protect personal property under defendant’s lawful control

Question 22

specific intent

Answer 22

acting for the purpose of causing the tortious consequence

Question 23

general intent

Answer 23

acting w/ knowledge to a substantial certainty (consider experience, capacity, understanding); bomb on airplane example)

Question 24

Does motive or mistake matter regarding intentional torts?

Answer 24

NO

Question 25

Volitional act

Answer 25

Performed w/ conscious awareness and control; not unconscious or under hypnosis

Question 26

Cause can be…

Answer 26

direct or indirect (setting something into motion)

Question 27

Battery

Answer 27

(1) A volitional act (2) With intent (3) to cause (general, specific, transferred)
(4) A harmful or offensive contact
to a plaintiff’s person or an object intimately attached to them (actual pain, injury, disfigurement; Touching without consent, a contact that a reasonable person would consider offensive)
**Single intent jurisdictions only require intentional contact
**Dual intent jurisdictions require intentional contact and intent to cause harm/offense

Question 28

Assault

Answer 28

i. Act
ii. with intent to (general, specific, transferred)
iii. cause a
iv. 1) reasonable apprehension of 2) imminent battery

Question 29

Is it necessary the a defendant is capable of committing a batter in terms of an assault?

Answer 29

no

Question 30

False imprisonment

Answer 30

i. Act with
ii. intent to (general, specific, transferred)
iii. cause
iv. 1) unlawful confinement or restraint of another person 2) for any length of time 3) against her will 4) to a bounded space with no reasonable means of escape 5) to her knowledge or actual harm (**minority jurisdictions don’t require conscious knowledge and allow harm to substitute this)

Question 31

is memory considered conscious knowledge?

Answer 31

no

Question 32

IIED

Answer 32

i. Extreme or outrageous act beyond all bounds of decency tolerated by a civilized society
ii. With intent (specific, general) or recklessness (conscious disregard of a known risk/probability)
iii. Done with the purpose of causing distress or knowledge to a substantial certainty to be produced
iv. To cause
v. Severe emotional distress that no reasonable person should be expected to endure

Question 33

Trespass to Land

Answer 33

i. Act
ii. With intent (specific, general, transferred)
iii. To cause
iv. An unlawful entry of land

Question 34

Trespass to Chattels

Answer 34

i. Act
ii. With intent (specific, general, transferred)
iii. To cause
iv. Unauthorized interference (intermeddling) with a chattel of another if that chattel is 1) impaired 2) possessor is deprived of chattel for a substantial time 3) if bodily harm to another occurs

Question 35

Conversion

Answer 35

i. Act
ii. With intent (specific, general)
iii. To cause
iv. Dominion or control over a chattel that is so serious in nature it cannot be recovered so the actor must pay the owner the full value of the chattel

Question 36

Examples of conversion

Answer 36

Stealing something, damaging/altering it, disposing of it, using it, etc.