Intentional Torts - Defenses Flashcards
Defenses (7)
Consent Self-defense Defense of others Defense of Property Privilege of Arrest Necessity Discipline
Consent
Must be valid and within boundaries of consent.
No capacity - No Consent (incompetent; drunkard; very young child)
Express v. Implied Consent
Express: no liability for D
Exceptions: Mistake if D knew of and took advantage; induced by fraud based on essential matter; obtained by duress unless threat of future action or economic deprivation
Implied:
Apparent consent - RP would infer from custom and usage or P’s conduct.
Implied by law - action necessary to save person’s life or some other important interest in person or prop.
Self-Defense
If P reasonably believe that P is/about to be attacked, then P may use reasonably necessary force to protect against injury.
*Deadly force ONLY ok if reasonably believe death or serious bodily harm imminent.
Majority - NO duty to retreat.
Modern - Duty to retreat pre deadly force IF safe to do so UNLESS D is in P’s home.
NOT available to initial aggressor unless other party responds to aggressor’s non-deadly force w/ deadly force.
Actor may be liable to 3rd person if actor deliberately injured 3rd person trying to protect herself.
Reasonable mistake RE existence of danger allowed.
Defense of property
Available to prevent tort against real/personal prop.
Request to stop/leave is REQUIRED unless futile or dangerous.
NOT allowed if tort already happened!
Mistake regarding occurrence of intrusion or requirement of request to desist is ok.
Mistake NOT permitted as to whether entrant has a privilege that supersedes defense of property right UNLESS entrant makes property owner believe there is no privilege.
Necessity AND Recapture of Chattel supersedes this defense
ONLY deadly force IF met with it.
Hot Pursuit Doctrine`
Only use reasonable force to recapture property IF in hot pursuit of property.
HP means right then! (not 2 weeks later)
Reentry onto Land
CL -force to reenter land only when other came into possession tortiously.
Modern law – ejectment procedures for possession recovery.
Recapture of Chattels
Only peaceful means allowed for recovery when possession began lawfully. Force permitted only when in HP of another who obtained possession unlawfully.
Available when:
- Timely demand required unless futile/dangerous.
- Recovery from tortfeasor or 3rd person when 3rd party knows of wrongful possession.
- If chattel on land of wrongdoer, reclaim in reasonable time and in reasonable manner AFTER making demand.
- Chattel on land of innocent party, reclaim in reasonable time and in reasonable manner AFTER making demand AND refusal to return by innocent party.
- *CANNOT recapture if chattel on land because of owner!
- Chattel owner liable for any damage caused by entry.
- Right supersedes defense of property.
MISTAKE:
-Generally none regarding D’s right to recapture or D’s entry onto land.
FORCE:
-Reasonable but DOES NOT include death/serious bodily harm.
Privilege of Arrest
Invasion of Land:
-May enter another’s land to effectuate an arrest (ex: citizen’s arrest)
Subsequent Misconduct:
-Actor still may be liable for subsequent misconduct after the arrest. (Ex: failing to bring arrestee before magistrate; unduly detaining party in jail)
Mistake:
Misd. arrest –> privilege for breach of peace AND saw action
Fel. arrest–> mistaken belief by OFFICER; citizen mistake ok ONLY when considering id of person but NOT whether felony occurred
Shopkeeper’s Privilege
Privilege to detain suspected shoplifter for investigation purposes ONLY.
MUST:
Be a reasonable belief RE theft;
Conduct detention in reasonable manner and ONLY nondeadly force can be used; AND
Detain for a reasonable period of time and ONLY to investigate
Necessity
supersedes defense of property
May interfere with real/personal prop of another when reasonably & apparently necessary to avoid threatened injury form natural/other force AND when threatened injury is substantially more serious than invasion that’ll avoid injury.
Public: when act is for the public good
Private: when act is solely to benefit a limited number of ppl actor MUST pay for injuries caused unless act was to benefit property owner
Discipline
Parent/teacher may use reasonable force in discipling children.
