Module 5 Flashcards
What is consent?
When the victim gives permission to something that would otherwise be tortious (must be objectively manifested). Ie) if Andy says yes to Bob’s request to come on to Andy’s land even though and he secretly means no, Bob has the defense of consent to trespass (because Bob is relying on objective manifestations of consent )
What are the defenses to intentional torts?
A) consent B) self-defense C) defense of others D) defense and recovery of property E) necessity
What are the two main types of consent?
Express or implied
What are the four types of consent?
- Express, implied, pictorial gestures, by law
If a person has reason to know that another person is consenting to something outwardly but doesn’t really agree, does that knowledge negate consent?
Yes
What is express consent?
Expressed in words
What is implied consent?
Under the circumstances, the conduct of the plaintiffs reasonably conveys consent (objective standard)
What is implied by law consent?
When the law provides consent to serve a utilitarian purpose of presuming what most in society would want. Ie) consent to emergency medical attention if you’re unconscious (can be negated by wearing a bracelet)
What does consent implied by custom mean?
Consent can be implied from community custom if the person doesn’t say otherwise. Ie) if people in the community always walk on your property to knock on your door and you don’t put up a sign, then the absence of a contrary expression shows your consent
What are the ways to invalidate consent?
- incapacity
- action beyond the scope of consent
- fraud
- duress
- illegality
How does incapacity invalidate consent ?
Express or implied manifestations can be held invalid if the person lacks capacity to consent ie) is a child, teenager, insane person, handicapped person, drunk person, high person
*** if you don’t know the person is incapacitated and there’s no reasonable way to know, it doesn’t invalidate a defense of consent
How does action beyond scope of consent invalidate consent?
If you agree to play football, that doesn’t mean you consent to being bitten, because such conduct is not accepted in the rules or the custom of the game… So that is action beyond scope of consent
How does fraud invalidate consent?
If someone fraudulently misrepresents an essential aspect of the interaction it is invalidated. If the fraud is about a collateral matter that does not negate consent
How can duress negate consent?
If the consent is gotten under physical threat it becomes invalid
- ** economic pressure does not negate consent
- ** sometimes situational duress 10 negate consent
How does illegality negate consent?
A) majority rule: a person cannot consent to a criminal act… so a tort claim can proceed
B) minority view: a person can consent to criminal acts (plaintiff’s consent bars the tort claim)
What is self-defense?
A defense which can justify and negate liability. Reasonable force can be used where you reasonably believe it is necessary to protect yourself from immediate harm. This is both subjective (defendant must sincerely believe the force is necessary) and objective (must act reasonably)
What are the necessary elements of self-defense?
Immediate: must be in response to an immediate threat of harm
Reasonable: the victim sincere belief that self-defense is necessary must be reasonable, although it doesn’t have to be correct
What is the rule for preemptive strikes in self-defense?
They are not justified, you can’t hurt someone because you anticipate an attack.
How has contemporary law modified the immediacy requirement in self-defense?
Changed it to present occasion
What is the rule for retaliation in self-defense?
Retaliation is not permitted. The cessation of hostility must be conveyed to the other person, otherwise the other person may have a justified self-defense claim if you didn’t know
When can you use deadly or serious bodily injury force?
When you believe you will suffer the same level from your attacker. If the force you foresee is nonserious you cannot use deadly force even if that is the only way to stop the other person
What are the rules about obligation to retreat in self-defense?
A) majority rule: there’s no obligation to retreat from force that doesn’t threaten deadly or serious harm.
B) minority rule: requires retreat and serious or deadly force would otherwise need to be used. You don’t have to retreat from your own home unless the attacker lives there. You also don’t have to retreat if you can’t do it safely. This view prefers the victim suffers some loss of personal rights rather than allowed that the or serious force to be used if a safe avoidance is possible
What is defense of others?
A person can use reasonable force to protect the third-party from immediate physical harm. Doesn’t have to be family, but you can only use force if that other person was privileged to use force. Defense of others is available if the defendant made a reasonable mistake as to the need to intervene or defend the third-party
What are the rules for defense and recovery of property?
You are privileged to use reasonable amount of force to prevent a tort against your real personal property. Reasonable mistakes will not excuse you. Deadly force is never permissible to protect property only
Are you ever allowed to use deadly force to protect property?
No, it must always be reasonable force. If you fear that you will be attacked, then you’re justified in using deadly force, but never if you were just protecting your property
If you push someone off your property when asking them to leave would have worked is that okay?
No, even slight force is unreasonable in defense of property if it is excessive
What are the rules for defending your home?
You can use deadly force if an intruder threatens your safety
What are the rules about mechanical devices in self-defense?
Devices meant to inflict serious harm to protect property are not allowed because they are too hazardous to the innocent and don’t provide proper warning. Barbed wire and other deterrents are fine because they are not meant to inflict deadly harm
What are the rules for recovering personal property?
You can use reasonable force to recover property when you’re in hot pursuit of the wrongdoer, because if you wait for the police to arrive, your item will be extremely hard to recover.
You do so at your peril though, because mistake is not an excuse
What is merchant’s privilege/shopkeepers privilege?
Stores can use reasonable force to detain possible shoplifters (for a reasonable time) as long as they are within or near the immediate parameters of the store. Reasonable mistake is allowed as long as the store acts reasonably.
One may detain someone for a reasonable time to conduct a reasonable investigation where there is a reasonable suspicion the person has shoplifted
What is necessity?
You are allowed to interfere with the property interests of an innocent party in order to avoid a greater injury. The defendant is justified in her behavior because the action minimized the overall loss
What are the two types of necessity?
A) public necessity
B) private necessity
What is public necessity?
When the defendant appropriates or injures a private property interest to protect the community, is a complete defense. Ie) blowing out the person’s home to save the city
What is a complete defense?
The defendant isn’t liable for anything
What is an incomplete defense?
Defendant’s B is privileged but he is still liable for damage
What is private necessity?
When the defendant appropriates or injures a private property interest to protect a private interest valued greater than the appropriated/injured property, it is an incomplete defense
Ie) mooring your boat to a dock during a storm
What is intentional injury/killing?
Extremely rarely the courts will say that if you have to sacrifice one life to save many, that should be done (using a fair lottery). Ie) throwing a crewmember out of the lifeboat so everyone else can survive
What are affirmative defenses?
When the defendant has the burden of pleading and proving the defense. They do not usually challenge the plaintiffs, fasciate case, rather, they supply a legal reason or justification for the defendants actions that render those actions non-tortious
What are the three sets of privileges?
A. Ones that justify the defendants conduct as a response to the apparent misconduct of the paint
B. Consent
C. Privileges of public or private necessity (based on policy rather than the plaintiffs conduct)
Parents and teachers generally enjoy a privilege to what?
Discipline (use of force or confinement). They may use reasonable force as a reasonably believe necessary
A surgeon that operates without explicit consent commits what?
Battery
How could you be charged with fraud in addition to a battery?
If you intentionally conceal facts (ie: plaintiff had genital herpes and concealed it from his girlfriend, who also got the venereal disease - was liable for both fraud and battery
How can consent be revoked?
At any time by communicating it to the other person
What is the video lecture’s definition of self-defense?
The defendant will not be liable for intentional torts that he commits if he acts in self-defense. The defendant honestly and reasonably believed the force he used was necessary to prevent imminent proportionate force to him
- defendant doesn’t have to be right, he just has to be reasonable. He must use proportionate force
