Privileges Flashcards
Consent - Definition
Consent is when one is willing for the conduct to occur.
Consent - considerations/notes
- Consent can only be given by one with the capacity to do so (or one authorized to consent for them).
○ Infancy, intoxication, mental capacity, consent given under duress. - If the plaintiff’s behavior was such as to indicate consent on her part, he was justified in his act, whatever her unexpressed feelings may have been. (consent can be found within a course of conduct).
○ This does not mean that not speaking up is consent. - Consent is informed by cultural norms and can be complicated by considerations of viewpoint, capacity, and regret.
- Consenting to a violent activity does not also give consent to violence or acts outside of the boundaries of that activity (or what can reasonably be expected from that activity).
○ Still need to intentionally violate game’s safety in order to have action.
○ What is/is not consented for?
- Look at rules and customs of the activity.
- If it’s not an official activity (no rules) look at what is custom in practice (what normally goes on). - Consent given under deceit or false pretenses is not valid consent.
- If the π made a material mistake, misunderstanding, or ignorance to the proposed conduct it is consenting to, the consent stands.
Consent - medical considerations
- A patient must specifically consent to medical operations (a consent to one operation isn’t consent to another).
- A competent patient may not be treated over their objection.
- Medical care providers may act in the absence of express consent if:
A. the patient is unable to give consent (unconscious, intoxicated, mentally ill, incompetent);
B. there is a risk of serious bodily harm if treatment is delayed;
C. a reasonable person would consent to treatment under the circumstances; and
D. the physician has no reason to believe this patient would refuse treatment under the circumstances.
Self-Defense & Defense of Others - definition
Privilege to use as much force as appears to be reasonably necessary to protect against imminent physical harm.
Reasonable belief. Reasonable force.
Self-Defense & Defense of Others - considerations/notes
- Deadly force may be justified if there is a reasonably apprehension of loss of life or great bodily injury.
- Privilege exists if there is reasonable belief of its necessity, even if the need does not actually exist (reasonable mistake).
○ i.e. Didn’t know the gun was unloaded and took reasonable action - If π accidently injures another person while properly acting in privilege of self defense, the privilege carries over.
Defense of Property - definition
Privilege to use as much force as appears to be reasonably necessary to prevent unlawful intrusion or dispossession.
Defense of Property - considerations
- When invasion is peaceful and in presence of possessor, use of any force at all is unreasonable unless a request has been made to depart.
- The value of human life or limb outweighs the interest of a possessor of land
- When can deadly force be utilized to defend property?
○ When the invader threatens personal safety of ∆ or his family (turns into self-defense) - Limitations on the privilege may also restrict the power to eject the trespasser into a position of unreasonable danger.
○ Throw dude off train while it’s moving.
○ Hotel maybe responsible for harm to drunk guest ejected into a foreseeably dangerous environment.
- Self-defense or defense of others may justify ejection still. - Traps = ∆ subject to liability for harm caused if they wouldn’t have been privileged to inflict it if they were present.
Recovery of Property - definition
Privilege of an owner dispossessed of a chattel to use reasonable force to recapture it where there was only a momentary interruption or the pursuit was fresh, IF a demand was made for the return of the property.
Recovery of Property - considerations/notes
- Any lapse of time in beginning or during pursuit will forfeit the privilege.
- Merchant’s privilege = privilege in favor of a merchant to detain for a reasonable investigation a person whom he reasonably believes to have taken chattel unlawfully.
Necessity - Private (definition & notes)
The privilege of ∆ to do something that is necessary in the course of defending self, property, or others from serious imminent harm (which π had nothing to do with) that would otherwise be trespass to land, trespass to chattel, or conversion.
- In private, although ∆ will have privilege for the act, he is still liable for compensatory damages from any physical harm caused.
○ Tries to create the right set of incentives for property owners.
-Don’t tie up shitty boat to million dollar dock during a storm to prevent damages to boat.
Necessity - Public (definition)
If the danger affects so many people that the public interest is involved, the privilege is complete & ∆’s tort liability is entirely excused (no damages).
Authority of Law - definition & notes
Someone acting under the authority of law (commanded or authorized) is privileged to commit acts that would otherwise be torts. Scope of privilege varies depending on type of authority and other circumstances (excessive force is not included)
Discipline - Definition & notes
Parents have the privilege to use reasonable force or confinement on their child as they reasonably believe to be necessary for the proper control, training, or education.
Must be administered in good faith, for a proper purpose, and without malice.
This privilege extends to people acting in place of the parents, but the amount of force is that is reasonable is less
Justification - definition
“Catch-all” privilege if none of the other privileges fit. Don’t want to bring it up there is another defense that clearly fits.
