Privileges to intentional torts

Question 1

Privileges

Answer 1

consent, self defense, defense of others, defense of property, recovery of property and necessity

Question 2

Consent

Answer 2

you are subjectively willing for the other person’s conduct to occur.

Question 3

Is consent communicated?

Answer 3

Sometimes. if not communicated, the defendant can prove that the willing state of mind, existed at the time he acted, the the conduct may be legally privilege

Question 4

Can consent be withdrawn?

Answer 4

YES

Question 5

Consent invalidated by fraud

Answer 5

Misrepresentation must be about something that affects the intrinsic nature and quality of the invasion or the harm
but/for: you consented because of something extrinsic. If someone would have told you everything, you would not have consented.

Question 6

Consent by duress

Answer 6

Duress: a threat of unlawful conduct aht is intended to, and does, prevent the plaintiff, an ordinary person, from exercising free will or choice
The duress must be outrageous
Certainly in cases where Ds threaten victims with physical harm. Also where one has consented to protect a loved one from physical harm

Question 7

Consent invalidated by lack of capacity

Answer 7

> courts invalidate voluntary, actual consent on grounds of incapacity primarily when that consent is offered by adults obviously suffering from some form of temporary or permanent diminished mental ability, or by minors who consent to potentially harmful contact. Intoxication is a consideration

> lack of consent = battery
lack of informed consent = negligence

Question 8

Self defense

Answer 8

A person is privileged to use reasonable force to defend himself against unprivileged acts that he reasonably believes will cause him bodily harm, offensive bodily contact, or confinement

Question 9

Non deadly force

Answer 9

> always use reasonable force. Only that amount of force the actor reasonably believes necessary to protect himself. Anything more than that is a tort.
no duty to retreat before using non-deadly force

Question 10

Deadly force and a duty to retreat

Answer 10

> may have a duty to retreat, if you are not in your home

Question 11

Two approaches of mistake Defense of others

Answer 11

(1) If the mistake belief regarding the need to intervene was reasonable under the circumstances, some courts allow privilege (majority rule)
(2) If the intervenor’s belief was mistake, even if that belief was sincere and reasonable, some courts refuse to allow the privilege

Question 12

Defense of property

Answer 12

> Can’t use deadly force to defend property unless the intrusion threatens death or serious bodily harm to occupiers or users
The use of force has to be proportional
It is not justified to shoot someone defending the mona lisa

Question 13

Can you use hot pursuit?

Answer 13

you cannot use self help to recover stolen property

Question 14

Necessity

Answer 14

a defense against trespass where D interferes with P’s property in an emergency to protect an interest of his own. D must still pay actual damages, but is not liable for nominal or punitive damages.

Question 15

How is necessity normally used

Answer 15

used mainly in trespass to land, trespass to chattels, and conversion

Question 16

Define private necessity

Answer 16

risk that an individual may be harmed is a qualified defense

Question 17

Public Necessity

Answer 17

risk that multiple people may be harmed is an absolute defense