Intentional Torts: Defenses

Question 1

What are the seven defenses to intentional torts?

Answer 1

• Privilege
• Defense of others
• Defense of property
• Consent
• Authority
• Necessity
• Self-Defense

Question 2

How can defense of others constitute a defense to intentional torts?

Answer 2

• D is entitled to defend another from an attack by P to the same extent that a third person would be lawfully entitled to defend himself, but D is liable for a mistake.
  o EXAMPLE: Igor overheard a serious threat that Paula made to Donna. Donna is in the parking lot when Igor sees Paula walking aggressively towards Donna with a baseball bat in her hands. Fearing that Paula is about to make good on her earlier threat, Igor picks up a stone, throws it, and hits Paula in an attempt to protect Donna from harm. Paula sues Igor for battery. Igor could successfully assert defense of others because he reasonably believed that Donna was at risk of imminent harm and responded with proportionate force.

Question 3

How can defense of property constitute a defense to intentional torts?

Answer 3

• D can use reasonable force to defend real or personal property.

Question 4

Can D use deadly force to protect property?

Answer 4

• May never use deadly force to protect personal or real property.
• Look for situations that start with defense of property and escalate to become defense of self/others.

Question 5

How can defense of property be used against trespasser onto land?

Answer 5

• May use reasonable force to eject a trespasser after asking him to leave.

Question 6

How can defense of property be used against trespasser to chattel?

Answer 6

• Recapture of Chattels: Reasonable, non-deadly force may be used to get back own personal property if:
  o the person seeking to recapture requests its return first or a request would be futile; and
  o D is in hot pursuit.
• EXAMPLE: Dale took Paul’s jacket. Paul saw it and asked for it back. Dale takes off running with the jacket. Paul can chase Dale and use reasonable force to get it back.

Question 7

How can consent be a defense to intentional torts?

Answer 7

• Usually a defense for battery and assault.

Question 8

What are the three kinds of consent?

Answer 8

• Express consent
• Implied consent
• Mistake

Question 9

How can express consent be a defense to battery or assault?

Answer 9

• Express: P affirmatively communicates permission for D to act.
• Limit - Reasonability; D’s actions cannot exceed the scope of consent.
  o EXAMPLE: Professor is concerned about his weight and needs to stop eating Twinkies. Professor tells the class that if they see him eating a Twinkie, they should do whatever it takes to stop him. Student sees Professor attempting to eat a Twinkie, grabs his arm, and pulls the Twinkie away. Professor sues for battery. Professor will lose because he gave express consent.

Question 10

How can implied consent be a defense to battery or assault?

Answer 10

• Implied: A reasonable person interprets P’s conduct as evidencing permission to act.
  o EXAMPLE: X is playing pickup basketball. During the game, there is a scuffle for a loose ball and an opposing player elbows X in the face, giving him a bloody nose. Even if done intentionally, X had impliedly consented by agreeing to play.

Question 11

How can mistake be a defense to battery or assault?

Answer 11

• Mistake can negate consent when it goes to the consequences or nature of the act.
  o EXAMPLE: Dale and Penny are about to have sex when Penny asks if Dale has any sexually transmitted diseases. Dale knows that he has herpes, but he lies and denies it and then sleeps with Penny without using any protection. Penny gets herpes and sues Dale. Penny will not be deemed to have consented because of Dale’s deception.
  o EXAMPLE: Vivian is a sex worker who engages in sexual relations with Mark. Mark pays Vivian with a counterfeit bill. In this case, there is still consent because the counterfeit bill is a collateral matter.

Question 12

What are the three kinds of authority defenses?

Answer 12

• Arrest
• Shopkeeper’s privilege
• Discipline

Question 13

How can arrest be a defense to intentional torts?

Answer 13

• Police officer can arrest if reasonably believes D committed a felony.
• Police officer can arrest for misdemeanor if D’s action constituted a breach of the peace.
• Private person acts at his/her own peril - if wrong, liable for tort

Question 14

What is the shopkeeper’s privilege?

Answer 14

• Not liable for false imprisonment if had a reasonable suspicion that P stole.
• Can only detain for a reasonable period and in a reasonable manner on the premises/immediate vicinity.

Question 15

How can discipline be a defense to intentional torts?

Answer 15

• Parent/teacher may use reasonable force to discipline a child.

Question 16

How is necessity a defense to intentional torts?

Answer 16

• D is permitted to injure P’s property if it is reasonably necessary to avoid a substantially greater harm to the public at large, self, or D’s property.

Question 17

What is an example of public necessity as a defense to intentional torts?

Answer 17

• Public: D is acting to protect the public at-large from severe harm.
• EXAMPLE: An earthquake starts a fire in the city. Della blows up Peter’s home to stop the spread of the fire. Peter sues Della for conversion and trespass to land. Peter would lose. The greater good was trying to stop the fire.

Question 18

What is an example of a private necessity as a defense to intentional torts?

Answer 18

• Private: D commits an intentional tort to protect himself (better tort was committed than risk the consequence). If a reasonable person would believe the action taken was necessary to avoid the harm, D is privileged even if D made an honest mistake in that regard.
• D is not liable for the technical tort but will have to pay for harm D caused.

Question 19

How can self-defense be a defense to intentional torts?

Answer 19

• D honestly and reasonably believes that D used reasonable force to prevent P from engaging in an imminent and unprivileged attack.
• D only needs to be reasonable and respond with proportionate force
• Once the threat is over, the defense will not work. There must be an imminent existing threat.
• Deadly force cannot be used against non-deadly threat.
  o EXAMPLE: Donna and Paula exchanged harsh words. Paula says “wait until the next time I see you alone. I am going to teach you a lesson you will never forget.” Donna is alone in a parking lot that night when she sees Paula walking towards her with something in her hand. Donna picks up a stone, throws it, and hits Paula, causing injury. Paula sues for battery. Donna intended contact, but argues self-defense based on the earlier threat. Even if Paula was only carrying a fishing pole (as an apology gift), if Donna believed she was threatened, she can respond accordingly.

Question 20

What is the retreat requirement for self-defense?

Answer 20

• Some jurisdictions require retreat before using deadly force.
• Though, under the castle doctrine, one never has to retreat from their own home.