Privileges to Intentional Torts

Question 1

Requirements of Privilege of Self Defense

Answer 1

Privilege of Self Defense states:

The defendant can use reasonable force if they reasonably believe that the use of physical force is necessary to prevent or repel an imminent attack or confinement.

Question 2

What are the rules surrounding use of Deadly Force for Self Defense?

Answer 2

1. Equivalence Rule
   1a. Only permissible if the other party is using deadly force.
2. Threatening is not the same as doing.
   2a. You can threaten the use of Deadly Force without reasonable retreat and without the other party using deadly force.
3. Reasonable retreat required before the use of deadly force at common law.
   3a. Retreat is not reasonable if unsafe. Therefore, if there is no safe way to retreat, then no retreat is required.
4. No retreat necessary for non-deadly force.
   4a. You do not have to retreat if you are using less than Deadly Force for self-defense.
5. Castle Doctrine provides an exception if you are n your home.
6. Stand-Your-Ground laws modify the requirement of reasonable retreat.

Question 3

Privilege of Defense of Others

Answer 3

Black Letter Law: One can defend another if that other person would have the privilege of self defense.

Question 4

Can you invoke the Privilege of Defense of Others if the other person did not have the privilege of self defense?

Answer 4

If the intervention appears necessary to a reasonable person, you can still invoke the Privilege of Defense of Others.

If it does not appear necessary to a reasonable person, then you can not invoke the Privilege of Defense of Others.

Question 5

Are Spring Guns covered under the Privilege of Defense of Property?

Answer 5

The vast majority of states will hold you liable for damages caused by the use of Spring Guns, but some states take different approaches:

-Some require the house be occupied if a Spring Gun is in use.

-Some prohibit the use of Spring Guns entirely.

-Some allow the use of Spring Guns if there was a warning issued.

Question 6

Requirements of Shopkeeper’s Privilege

Answer 6

1. Reasonable Cause
2. Detain for the purpose of questioning or calling the Police.
3. Reasonable manner/reasonable amount of time

Question 7

What does Restatement (2d) § 120A say about Shopkeeper’s Privilege?

Answer 7

The doctrine of shopkeeper’s privilege states that in this situation, a shopkeeper defendant who reasonably believes that the plaintiff has stolen or is attempting to steal something from the defendant shopkeeper may detain the plaintiff in a reasonable manner for a reasonable amount of time to investigate.

Question 8

Can you invoke Shopkeeper’s Privilege if you made a mistake?

Answer 8

Common Law generally prohibits the invocation of Shopkeeper’s Privilege if a mistake has been made.

The Restatement allows for reasonable mistakes.

Question 9

The Privilege of Discipline

Answer 9

The Privilege of Discipline allows parents to batter their children provided:

1. The parent reasonably believes force is necessary
2. The parent uses reasonable force

Question 10

Does the Privilege of Discipline apply only to parents?

Answer 10

The Privilege of Discipline extends beyond parents to teachers and guardians and generally applies to anyone in locum parentis.

Question 11

How is reasonableness determined for the Privilege of Discipline?

Answer 11

It is a factor test involving:

1. Age of the parties
2. Degree of force used
3. Act that prompted the use of discipline
4. Duration

Question 12

What is the Privilege of Consent?

Answer 12

Consent means that the defendant was okay with the conduct.

Question 13

How does Consent work?

Answer 13

Actual consent can be manifested nonverbally.

Apparent consent as well as actual consent acts as a defense, so long as the defendant reasonably believes it is actual consent.

Presumed consent may exist.

Apparent and Presumed consent do not generally cover sexual contact.

Consent can be withdrawn.

Consent to the act bars recovery for harm resulting from the consented to act, even though one did not consent to the harm itself.

Question 14

What negates consent?

Answer 14

Withdrawing consent.

Duress

Policy (e.g., the conduct is of a kind for which the plaintiff cannot give valid consent).

Crime (note: Restatement allows one to consent to a crime with exception for victims who the legislation specifically means to protect, but some states still do not allow consent to a crime).

–The majority position is that you cannot consent to a crime.

—-If legislation is passed to protect a particular group, that person’s consent is irrelevant (e.g., statutory rape).

Lack of Capacity (e.g, infancy, intoxication, mental incompetence, etc.)

–EXCEPTION: Physicians may act regardless of consent from lack of capacity in times of emergency.

–EXCEPTION: Minors can consent to age-appropriate touching.

–EXCEPTION: The plaintiff must know about the defendant’s incapacity to consent.

Mistake about the nature and quality of the invasion, or the actor’s purpose (which is in fact unlawful) and defendant knows (or has reason to know) of the mistake.

Fraud when it pertains to what is going to happen, but not when it pertains to things surrounding it.

Question 15

Does one consent to getting hurt when they play a contact sport?

Answer 15

One inherently consents to the risks present in any sport they participate in.

Question 16

Are physicians privileged to infer consent in an operation when complications arise?

Answer 16

Physicians are privileged to infer consent in an operation when complications arise, but many hospitals will provide forms that require patients to consent to emergency treatment in complications anyways.

Question 17

Elements of the Doctrine of Public Necessity?

Answer 17

1. The actor must act in good faith
2. The actor must have a reasonable belief that the action was needed
3. The action must be a reasonable response to the necessity

Question 18

Does the Doctrine of Public Necessity allow for mistakes?

Answer 18

The Doctrine of Public Necessity requires only apparent necessity and therefore does not require real necessity.

Question 19

Is Public Necessity an Absolute Privilege or a Qualified Privilege?

Answer 19

Public Necessity is an Absolute Privilege meaning that the defendant is not liable to the plaintiff for any damages suffered.

Question 20

Differences between the Doctrine of Public Necessity and the Doctrine of Private Necessity

Answer 20

The Doctrine of Public Necessity applies to threats to the public at large, while the Doctrine of Private Necessity applies to threats to private parties.

The Doctrine of Private Necessity is a Qualified Privilege meaning that the defendant is still liable for the damages caused to the plaintiff.