Privileges Flashcards
General Rule: Consent
1) π (legally and reasonably capable)
2) overt words or conduct
3) freely and knowingly consents
Hackbart v. Cincinnati Bengals
Even an inherently violent situations such as football, it is possible for one to go beyond its customs and so be liable for action
O’Brien v. Cunard S.S. Co. (Czech my consent)
When consent is used as a defense to an assault action, the totality of circumstances must be considered, but only overt acts and outward manifestations may demonstrate such consent or lack thereof
Mohr v. Williams (bad ear)
While implied consent for a surgeon to operate in emergency, life-threatening situations may exist; the consent to perform one operation does not imply consent for another
DeMay v. Roberts (he was unmarried!)
Fraud vitiates consent resulting in battery due to nondisclosure and will not operate as a defense to subsequent action
Self-defense is privileged when…
1) Reasonable force
1. a) Apparent necessity
1. b) Apparent proportionality to threat
2) Imminence (of threat)
3) Threatened (unprivileged) invasion of rights
Defense of Property
Can defend property reasonably (minimal force) from imminent intrusion, dispossession, or interference. Dogs and guns at ∆ risk
Katko v. Briney (Spring guns)
Premises owners do not have a privilege to protect their property using force intended or likely to cause death or serious harm against trespasser
Recovery of Property
One has a right to retake property that is rightfully his so long as it can be without unnecessary violence to the person and without creating a breach of peace
Hodgen v. Hubbard
Limits of privilege based of “recaption” - triggered by constructive or actual force or by fraud, “fresh pursuit” necessary, and reasonable force. Different from “merchants privilege” in needing actual knowledge
Necessity: Black Letter
The privilege of necessity may be invoked when D, in the course of defending himself or his property (or others or their property) from some threat of imminent serious harm for which P is not responsible, intentionally does some act reasonably deemed necessary toward that end, which results in injury to P’s property and which would otherwise be a trespass or conversion.
Surocco v. Geary (SuroccOH my house!)
Otherwise tortious acts may be rendered non-tortious when necessity dictates that they be undertaken for the greater interests of society
Vincent v. Lake Erie Transp. Co. (Erie Storm)
One who takes actions to protect his property that result in damage to another’s property is required to compensate for those damages, even when the actions taken were necessary to prevent the destruction of his own property
Authority of Law
reasonable force
reasonable/apparently necessary to carry out official duties
Discipline
public and private agents
