Page 9 Flashcards
When is defense of property not available?
When someone has a privilege to enter the land because of necessity, recapture of chattels, etc, since that privilege supersedes the privilege of the land possessor to defend his property
Is it true that deadly force is allowed to protect your home?
No, that is a misconception, deadly forced can only be used to protect a person
What is the rule about mechanical devices to protect property?
Can be used only if they are reasonable and necessary and you provide adequate warning. Can’t use deadly mechanical devices
What does authority mean?
Circumstance where defendant has a legal right to act
What are the three situations where someone would have authority?
- parents/teachers to discipline
- shopkeepers to detain shoplifters
- arrest by proper legal authority
What does breach of the peace mean?
Violent misdemeanor like assault
What is necessity in tort?
You are allowed to interfere with the property interest of an innocent party in order to avoid a greater injury to the public, yourself, or your property
When is defendant justified in his behavior for necessity?
If his action minimized the overall loss
Necessity always applies to what kind of torts?
Property torts, but human life issues are stickier
Can necessity apply to human injury?
Yes, but is very rare, it is usually only found when it is better to hurt a few people than a lot of people
What is the standard to measure if necessity was appropriate?
A reasonable person in the same circumstance must have believed it was necessary
Can a D be mistaken about whether necessity applies?
Yes as long as he reasonably believed it was necessary
What are the two types of necessity?
Private and public
What is private necessity?
The right to use another’s property in order to save your own property that is of greater value with an obligation to compensate the other for damages
Is private necessity a complete or incomplete defense?
Incomplete
What does it mean for private necessity to be an incomplete defense?
There is no tort liability but defendant is liable for any actual damages
In private necessity, the harm avoided must be what?
Substantially greater than the harm inflicted
Would it be okay to run across someone else’s land in order to get away from an attacker?
Yes, that would be private necessity because you inflicted a small harm compared to a much greater one
What is an example of private necessity?
In a storm you can ruin a dock in order to save your expensive boat, but you have to compensate the dock owner
What is public necessity?
When a potential harm to society necessitates the destruction of private property for the greater good
Defendant can appropriate or injure private property to protect the community so long as what, for public necessity?
The threatened harm is severe
Is public necessity a complete or incomplete defense?
Complete
What does a complete defense mean for necessity?
Defendant isn’t liable for anything
What is an example of public necessity?
Can blow up a private house to save the city from burning, and there’s no liability for that private loss
