Intentional Torts - Defenses

Question 1

Consent

Answer 1

The P’s consent to the D’s conduct is a defense, but majority view is that one can not consent to a criminal act.

Capacity Required - individuals without capacity are deemed incapable of consent. Some people who lack full capacity may still be able to consent to some things, but not all. (I.e., think kids wrestling each other - can consent; kids can’t consent to sexual conduct).

Any consent fact pattern raises two questions:

1. Was there a valid consent?
2. Did the D stay within the boundaries of consent.

Question 2

Express v. Implied Consent

Answer 2

Consent can be express or implied.

Express: explicit words that give permission. Affirmative defense if given by person with capacity. May be oral or written. (exceptions - fraud or duress eliminate express consent).

Implied: custom and usage (social) - I.e., P voluntarily engages in activity where custom/usage is routine (I.e., basketball - lots of contact; implied consent). BUT the activity/touch can’t exceed the scope of the consent/defense.

Implied consent: body language - reasonable interpretation of the objective circumstances can be a defense (tapping someone on the shoulder, shaking someone’s hand, etc.) MUST BE REASONABLE.

Exceeding scope results in liability - Dr. supposed to examine knee but does back surgery; exceeds the scope, dr is liable.

Question 3

Protective Privileges

Answer 3

When a question involves defense of self, others, or property, ask:

1. is the privilege available? Privileges apply only for preventing the commission of a tort.
2. Is a mistake permissible as to whether the trot being defended against (battery, trespass, etc.) is actually being committed?
3. Was a proper amount of force used?

There must be a perceived threat coming from the plaintiff - protective privileges require proper timing; they require immediate response - can’t be too soon or too late.

Protective Privileges allow reasonable force - if someone pinches you, you can’t turn around and shoot someone in self-defense.

Question 4

Self- Defense

Answer 4

When a person reasonably believes that they are being or are about to be attacked, they must use such force as is reasonably necessary to protect against injury.

Majority rule - no duty to retreat.

Self-defense not available to the initial aggressor - i.e., first attacker/initiator

Self-defense privilege may extend to 3P, but still liable if deliberately injure the 3P in trying to protect yourself.

Question 5

Defense of others

Answer 5

One may use force to defend another when they reasonably believe that the other person could have used force to defend themselves.

No duty to retreat in majority of states. You are allowed to stand your ground.

Defender may use as much force as they could have used in self-defense if they were the one threatened with the injury - no deadly force to protect property. EVER.

Question 6

Defense of Property

Answer 6

One may use reasonable force to prevent the commission of a tort against their real or personal property.

A request to desist or leave must first be made unless it clearly would be futile or dangerous. The defense does not apply once the tort has been committed; however, one may use force in hot pursuit of another who has tortiously dispossessed the owner of their chattels because the tort is viewed as still in progress if the defendant is in the act of fleeing.

Reasonable force may be used. However, you can’t set deadly traps to protect property and you can’t use deadly force to protect property. (I.e., no force that will cause serious bodily injury or death).

Question 7

Shoplifting Detentions (Shopkeeper’s Privilege)

Answer 7

Shopkeeper may detain suspect for reasonable amount of time/investigation if:

Reasonable belief,
Manner, and
Time

Question 8

Necessity

Answer 8

Only applies to property torts. A person may interfere with the real or personal property of another when it is reasonably and apparently necessary in an emergency to avoid injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it.

Public Necessity - D acts in emergency to protect community.

1. Absolute Defense
2. Act to avert imminent public disaster - think fire spreading through city.

Private Necessity - D acts in an emergency to protect own interests.

1. Limited or qualified defense (I.e., not absolute defense).
2. Must pay compensatory damages
3. Not liable for nominal / punitive damages to land because there is a privilege to enter (however, if any harm caused, you pay).
4. can stay as long as emergency continues
   NOTE: must be for an emergency.