Intentional Torts - Priveleges/Defenses Flashcards
Consent - Definition
volentia non fit injuria (one who consents does not have the right to complain). Consent is a defense to all intentional torts.
Consent - Express Consent
willingness stated in words or actions
Consent - Implied Consent
Custom and usage but the question becomes whether defendant stayed within the boundaries of custom and usage
Consent - Implied by Law
physician can act if (1) patient is without capacity to give consent, (2) any delay would involve health risk, (3) a reasonable patient would have consented, and (4) there is no reason to believe patient would not have consented
Consent - Situations where consent is not effective
act goes beyond the consent, lack of capacity to consent (mentally incompetent, too young to give consent, intoxicated), or consent is given due to fraud, duress or mistake
Self-defense/defense of others/defense of property - Definition
permits a person to attempt to prevent a tort by the use of reasonable force
Self-defense/defense of others/defense of property - Elements
a. Prevent a tort by use of force.
b. Force must be reasonable – Force that appears necessary to a reasonable person in defendant’s shoes but lethal or deadly force is not reasonable except when used to defend against lethal or deadly force. With defense of property cannot use lethal or deadly force (Katko v. Briney). Be careful because situation may change from defense of property to defense of self or others (Hodgedon v. Hubbard). When defending others the force defendant may use is limited to that which the person being defended could use. If you unintentionally injure a 3rd person while defending oneself, a negligence analysis is applied. Generally, there is no duty to retreat but there is a split of authority when using deadly force (no duty to retreat – majority; duty to retreat – minority).
c. Timing is important – act must not be one of retaliation.
Recovery of Property/Recapture of Chattel - Definition
privilege to use force to recapture a chattel which has been taken from your possession (not trying to prevent a tort).
Recovery of property/Recapture of Chattel - Elements
a. Wrongful dispossession by person who actually took the property or knows of taking. Element is not defeated if defendant has made a reasonable mistake (twin brother situation).
b. Prompt action/fresh pursuit.
c. Reasonable force – force that appeared necessary to a person who knows the truth i.e., can’t make a mistake. Also, cannot use deadly force.
Shopkeeper Privilege
- Reasonable belief something was stolen.
- Reasonable period of detention for investigative purpose.
- Reasonable non-deadly force.
- Investigation must be on or near store premises.
Defense of Land
- Majority – cannot use force and instead must use judicial proceedings.
- Minority – reasonable non-deadly force is acceptable
Necessity - Definition
privilege to reasonably invade the property rights of another in an emergency not caused by the defendant. For example a plane is forced to land on property of another.
Defense only to property torts.
Necessity - Elements
Elements:
a. Emergency (Surocco v. Geary):
(1) Private necessity - must pay for actual damage (Vincent v. Lake Erie Transp. Co.).
(2) Public necessity – absolute privilege.
b. Invasion must be reasonable.
Qualified privilege
to enter the land of another to reclaim chattel. This privilege does not exist if chattel is there through your own fault. If the chattel is there through the fault of the landowner the privilege to enter is absolute but a demand for return is generally required unless the demand is deemed to be fruitless. If the chattel is there through the fault of neither the landowner or the owner of the chattel, the privilege is incomplete and person who enters must pay for damage to plaintiff’s land.
Authority of law
Legal authority
