Privileges Flashcards
Privileges Checklist
1) Who may assert the privilege?
2) What belief is required?
3) What is the effect of a mistake of fact?
4) How much force can be used?
5) Are there special rules?
Types of Consent
Actual Consent, Apparent Consent, Implied Consent, Informed Consent
Actual Consent
Consent given in fact. D’s conduct must be within scope & conditions of consent (not revoked).
Consent requires capacity, absence of duress, absence of substantial mistake.
Apparent Consent
Objective manifestation of consent; words or conduct that would lead a reasonable person to believe that P consented. (See O’brien)
Implied Consent
A policy determination that the invasion is not actionable
Exceptions to using Consent as a defense
Consent induced by misrepresentation, mistake, or duress (DeMay); emergency aid; power disparities; criminal activity
(exception to exception: misrepresentation or mistake to a collateral matter).
Emergency Aid Substitute
(1) Patient unable to give consent
(2) Risk of serious bodily harm if treatment is delayed
(3) Reasonable person would consent under the circumstances; AND
(4) Dr. has no reason to believe that this patient would refuse treatment
(if plaintiff outlined consent before unconscious, that consent holds)
Good Samaritan Statutes
In many jurisdictions, Good Samaritan statutes exist that insulate from negligence liability doctors, nurses, emergency medical techs, & sometimes
ordinary citizens who offer help to victims in an emergency. Exception: liability for reckless, willful or wanton conduct (including intentional torts)
Self-Defense
(1) Anyone other than an aggressor, (2) who reasonably anticipates immediate physical harm
(3) may use reasonable force in self-defense.
A reasonable mistake as to the necessity or degree of force required does not destroy the privilege.
Use of deadly force is justified only by a threat of deadly force, and retreat may be required.
Defense of Others
(1) Anyone (2) who believes force is necessary to protect another (3) may use reasonable force to do so.
Split of authority as to whether a reasonable mistake destroys the privilege.
Defense of Property
1) A possessor (2) may use reasonable, non-deadly force to defend property. (Katko)
A reasonable mistake as to the necessity or degree of force does not destroy the privilege
Recapture of Chattels
(1) A possessor (2) wrongfully dispossessed by
fraud or force (3) may use reasonable non-deadly force to recapture the chattel (4) if there is prompt discovery, demand, and fresh pursuit.
Any mistake destroys the privilege.
Shopkeeper’s Privilege
(1) A shopkeeper may temporarily detain (2) for purposes of investigation of (3) one reasonably suspected of theft (4) in or near the store.
A reasonable mistake does not destroy the privilege.
Public Necessity
1) Anyone is completely privileged
2) To use reasonable force
3) Actually or apparently necessary
4) To avoid an imminent risk of greater harm
5) To the community or many persons
(Surocco)
A reasonable mistake does not destroy the privilege.
Some statutes and cases abrogate the general rule and require compensation.
Private Necessity
1) Anyone is completely privileged
2) To use reasonable force
3) Actually or apparently necessary
4) To avoid an imminent risk of greater harm
5) of only one or a few persons
6) BUT The actor is liable for actual losses
If the plaintiff resists the assertion of the privilege (i.e. endangers a person), the privilege becomes absolute, and no further compensation is required by the defendant for harm reasonably inflicted thereafter.
