Privileges/Defenses

Question 1

Consent

Answer 1

a. Restatement 2d. § 892:
i. Consent is willingness in fact for conduct to occur, manifested by action and may not be communicated to the actor;
ii. if words or conduct are reasonably understood by another to be intended as consent, they constitute consent.

Question 2

Informed Consent

Answer 2

1. The defendant failed to inform him adequately of a material risk before securing consent;
2. If he had been informed, he would not have consented; and
3. The adverse consequences that were not made known did in fact occur and cause injury.

Question 3

Self Defense

Answer 3

Restatement 2d § 65: Threatening death:

i. The tort must be now occurring or is about to occur. There cannot be a time delay or it is considered “retaliation”.
ii. The force must be met with equal force – cannot shoot somebody if they have a bat.
iii. Do not have to retreat unless can do so safely. Do not have to retreat in your own home.
iv. Provoking an attack loses self-defense privilege
v. Mistake is allowed but the mistake must have been reasonable in the circumstances.
vi. Regarding transferred intent, self-defense transfers over.

Question 4

Defense of Others

Answer 4

An intervening actor is privileged to defend others to the same extent as to protect himself

Question 5

Defense of Property

Answer 5

a. Force may be used to protect property, but never deadly force because human life is more important than property. If the person is inside your home and you are present, it is now self-defense, not defense of property and the rules change accordingly.

Question 6

Recovery of Property

Answer 6

a. There a right to recovery if acting in “hot pursuit”
i. The act to recover must be prompt;
ii. Only reasonable force is allowed;
iii. Force likely to cause death or serious injury is never permitted.