T4 - Defenses to Intent' Ts

Question 1

Defenses to Intentional Torts

Answer 1

1. Consent
2. Protective Privileges
   - 1. Self-defense
   - 2. Defense of others
   - 3. Defense of property
3. Necessity
   5.

Question 2

Consent

Answer 2

• Defense to ALL intentional torts
• Must have legal capacity.

A defendant is not liable for an otherwise tortious act if the plaintiff consented to the defendant’s act.
Consent may be given expressly; it may also be implied from custom, conduct, or words, or by law.

The plaintiff’s consent to the defendant’s conduct is a defense, but the majority view is that one cannot consent to a criminal act.
Any consent fact pattern raises two questions:
• Was there a valid consent?
• Did the defendant stay within the boundaries of the consent?

Question 3

Capacity Required

Answer 3

Individuals without capacity are deemed incapable of consent, for example, drunken persons, and very young children.

Persons with limited capacity, such as older children and persons with mild intellectual disabilities, can consent, but only to things within the scope of their understanding. Use common sense.

TIP: This requirement of capacity differs from the rule for the intent element of intentional torts, where incapacity is no defense. Everyone (even a young child) has the capacity to commit a tort, but not everyone has the capacity to consent to a tort.

Question 4

Express (Actual) Consent

Answer 4

• Express consent: WORDS giving permission. That will operate as express consent giving capacity as a defense.
  Express (actual) consent exists where the plaintiff has expressly shown a willingness to submit to defendant’s conduct.

The defendant is not liable if the plaintiff expressly consents to the defendant’s conduct.

Exceptions:
(1) MISTAKE: mistake will undo express consent if the defendant knew of and took advantage of the mistake;
(2) FRUAD: consent induced by fraud will be invalidated if it goes to an essential matter, but not a collateral matter; and
(3) DURESS: consent obtained by duress will be invalidated unless the duress is only threats of future action or future economic deprivation.

Question 5

Implied Consent

Answer 5

IMPLIED CONSENT: - Implied consent from CUSTOM and USAGE. (Social custom and social usage).
—- If u goes to a place where that kind of contact is routine, that is a defense.
—Ex: you get tackled while playing at a family football game (u dont need to tell each player that you consent).

BODY LANGUAGE CONSENT: Defendant’s reasonable interpretation of the Plaintiff’s objective conduct and the surrounding circumstances.
Apparent consent is that which a reasonable person would infer from custom and usage or the plaintiff’s conduct, for example, normal contacts inherent in body-contact sports, ordinary incidental contact, etc.
— Ex: Person you’re talking to at party reaches out for handshake, you can interpret this conduct as allowing you to touch them.

Consent implied by law arises when action is necessary to save a person’s life or some other important interest in person or property.

Question 6

Exceeding Consent Given

Answer 6

If the defendant exceeds the scope of consent by committing a more intrusive invasion or by invading a different interest than the one the plaintiff referenced, they may be liable.

Ex: Doctors extend op from one part of body to another, this is exceeding consent.

Question 7

PROTECTIVE PRIVILEGES

Answer 7

3:
1. Self-defense
2. Defense of others
3. Defense of property

When a question involves the defense of self, others, or property, ask the following three questions:
• Is the privilege available? These privileges apply only for pre- venting the commission of a tort. Already committed torts do not qualify.
• Is a mistake permissible as to whether the tort being defended against (battery, trespass, etc.) is actually being committed?
• Was a proper amount of force used?

Question 8

All three PROTECTIVE PRIVILEGES involve the same:

Answer 8

Must be a perceived threat coming from the plaintiff .

Protective privileges require proper timing. Response must not come too soon (NO PRE-EMPTION). Response must not come too late (NO REVENGE).

Protective privilege require reasonable accuracy. This means reasonable belief that threat was genuine. You can have a REASONABLE MISTAKe if you had a REAOSNABLE BELIEF.

Protective privileges allow reasonable force. It should be proportional.

Question 9

Self-Defense

Answer 9

When a person reasonably believes that they are being or are about to be attacked, they may use such force as is reasonably necessary to protect against injury.

Question 10

Self-Defense: When Is Defense Available?

Answer 10

The majority rule is that there is no duty to retreat.
The modern trend imposes a duty to retreat before using deadly force if this can be done safely, unless the actor is in their home.

Self-defense is not available to the initial aggressor unless the other party responds to the aggressor’s nondeadly force by using deadly force.

Self-defense may extend to third-party injuries (caused while the actor was defending themselves). An actor might be liable to a third person if they deliberately injured the third person in trying to protect themselves.
— Ex: J attacked D, and to defend himself D threw a rock at J, but missed, hitting P instead. If P sues D for battery relying on transferred intent, D will have a valid self-defense claim to avoid liability.

Question 11

Self-Defense: Is Mistake Allowed?

Answer 11

A reasonable mistake as to the existence of the danger is allowed.

Question 12

Self-Defense: How Much Force May Be Used?

Answer 12

One may use only that force that reasonably appears to be neces- sary to prevent the harm (including deadly force). If more force than is reasonably necessary is used, the defense is lost.

Question 13

Shopkeeper’s privilege

Answer 13

No liability for false imprisonment if reasonable time, reasonable belief.

Question 14

Protective privileges allow reasonable force

Answer 14

• No duty to retreat in majority of states
• ## No use of deadly force to protect PROPERTY (but can use nondeadly force).

Question 15

Defense of Others:

Answer 15

.

Question 16

Defense of Others: a. When Is Defense Available?

Answer 16

One may use force to defend another when they reasonably believe that the other person could have used force to defend themselves.

Question 17

Defense of Others: b. Is Mistake Allowed?

Answer 17

A reasonable mistake as to whether the other person is being attacked or has a right to defend themselves is permitted.

Question 18

Defense of Others: c. How Much Force May Be Used?

Answer 18

The defender may use as much force as they could have used in self-defense if they were the one threatened with the injury.

Question 19

Defense of Property

a. When Is Defense Available?

Answer 19

One may use reasonable force to prevent the commission of a tort against their real or personal property. A request to desist or leave must first be made unless it clearly would be futile or dangerous. The defense does not apply once the tort has been committed; however, one may use force in hot pursuit of another who has tortiously dispossessed the owner of their chattels because the tort is viewed as still in progress if the defendant is in the act of fleeing.

Remember that this defense is not available against one with a privilege. Whenever an actor has a privilege to enter onto the land of another because of necessity, recapture of chattels, etc., that privilege will supersede the privilege of the land possessor to defend their property.

Question 20

Defense of Property:
b. Is Mistake Allowed?

Answer 20

A reasonable mistake is allowed as to whether an intrusion has occurred or whether a request to desist is required. A mistake is not allowed as to whether the entrant has a privilege (for example, neces- sity) that supersedes the defense of property right, unless the entrant conducts the entry so as to lead the defendant to reasonably believe it is not privileged (such as by refusing to say what the necessity is).

Question 21

Defense of Property:
c. How Much Force May Be Used?

Answer 21

Reasonable force may be used.
However, one may not use force causing death or serious bodily harm unless the invasion of property also entails a serious threat of bodily harm.
The same principle makes it impermissible to set deadly mechanical devices or traps (such as spring guns) to protect property.

PRESUMPTION that home-intruder poses deadly threat. BUT look at whether garage is part of the dwelling?

There is a common misperception that deadly force may be used to protect one’s home. This is not strictly true. Many of the “home defense” cases are really self-defense cases. Thus, deadly force can only be used when a person, not just property, is threatened.

Question 22

Defense of Property:
d. Shoplifting Detentions

Answer 22

A shopkeeper has a privilege to detain a suspected shoplifter for investigation.
For the privilege to apply, the following conditions must be satisfied:
• There must be a reasonable belief as to the fact of theft
• The detention must be conducted in a reasonable manner and only nondeadly force can be used
• The detention must be only for a reasonable period of time and only for the purpose of making an investigation

Question 23

Reentry onto Land

Answer 23

At common law, one could use force to reenter land only when an intruder came into possession tortiously, such as by a trespass.
Under modern law, there are summary procedures such as ejectment for recovering possession of real property.
Hence, resort to self-help is no longer allowed.

Question 24

Recapture of Chattels

Answer 24

The basic rule is the same as that for reentry of land at common law: When another’s possession began lawfully (for example, a conditional sale), one may use only peaceful means to recover the chattel.

Reasonable force may be used to recapture a chattel only when in hot pursuit of one who has obtained possession wrongfully, for example, by theft.

Question 25

NECESSITY.

(Defense to what?)

Rule:

Types?

What kind of defense?

Answer 25

• Necessity is a defense ONLY to PROPERTY torts.
  A person may interfere with the real or personal property of another when it is reasonably and apparently necessary in an emergency to avoid injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it.

There are two types of necessity:
PUBLIC neccesity: Defendant acts in emergency to protect community. ABSOLUTE DEFENSE, no liability.
- A defendant can raise public necessity as a defense if they acted to avert an “imminent public disaster.”
- Emergency: Continual ongoing activity like natural disasters.
— Ex: breaking into factory to put out fire, sued for trespass and conversion.

PRIVATE Necessity: Defendant acts in emergency to protect his OWN interests. Private necessity can be a defense when the action was to prevent serious harm to a limited number of people.
- Under private necessity, the actor must pay for any injury they cause (unless the act was to benefit the property owner).

— Limited or qualified defense: D must pay compensatory damages. BUT, NOT liable for nominal/punitive damages (ex - go into private property for shelter from storm, but don’t damage or take anything).
— This is a PRIVILEGE to ENTER and STAY. Can remain as long as emergency continues (Tresspassor can sue homeowner for not letting them stay).