Torts MBE - Defenses to Intentional Torts Flashcards
D may claim any of the following defenses against an intentional tort involving personal injury:
(1) consent - P consented to D’s otherwise tortious conduct;
(2) Self-Defense and Defense of Third Persons - D’s use of necessary and proportionate force may be privileged for the purpose of defending against P’s use of force;
(3) Defense of Property - D’s conduct in a battery, assault, or false imprisonment may be privileged to prevent or terminate a P’s intrusion;
(4) Parental Authority - a parent’s conduct may be privileged for the purpose of disciplining or promoting the welfare of a minor child;
(5) Other defenses include privilege to protect individuals who are mentally impaired; the privilege of arrest and other crime-related conduct; and the merchant’s privilege
Consent Defense
D is not liable for D’s otherwise intentional tortious conduct if P gave legally effective consent to the conduct; consent legally effective if it satisfies the requirements for (1) actual consent; (2) apparent consent; (3) presumed consent; or (4) the emergency doctrine
Most jurix that have addressed the lack of consent issue put BoP on P to prove lack of actual consent
Actual Consent
P expressly consents to D’s tortious intentional conduct if P is willing for that conduct to occur; such willingness may be express or inferred from the facts
Actual consent = express consent
P’s actual consent extends to conduct by D that is not substantially different in nature from the conduct that P is willing to permit; when P places a condition on consent that limits the consent with respect to time, place, or otherwise, the consent is legallly effective only w/in the limits of that condition
When P clearly communicates a revocation of his actual consent, consent no longer effective unless unreasonably burdensome for D to immediately comply with revocation
Jurix are split as to whether P can consent to a crime, w/ modern trend saying Yes; but even in jurix that recognize P may consent to crime, consent is not effective if P is a member of a class that the crime is intended to protect w/o regard to consent (consent of statutory rape victim ineffective)
P’s actual consent does not extend to past conduct
Actual Consent - mistake
AC given by P due to a substantial mistake regarding the nature of the invasion of the P’s interests, the extent of the expected harm, or the D’s purpose in engaging in the conduct is nevertheless valid consent unless D caused the mistake by affirmative misrepresentation or fraud or knew of the mistake
Actual Consent - duress
AC given while under duress (physical force or threats) is not valid
Threat must be of present action (not future)
Threats of economic duress do not render a P’s consent invalid nor does consent given under moral pressure
Actual Consent - capacity
P’s lack of capacity due to youth, intoxication, or intellectual incompetence may negate validity of consent, but person who appreciates the nature, extent, and potential consequences of the conduct has the capacity to consent to it
Adults are rebuttably presumed to have capacity to consent
Apparent Consent
D not liable for tortious intentional conduct if D reasonably believes P actually consents to conduct, even if P does not
Presumed Consent
D not liable for otherwise tortious intentional conduct if:
(1) Under prevailing social norms, the D is justified in engaging in the conduct in the absence of the P’s actual or apparent consent; and (2) D has no reason to believe P would not have actually consented to conuct if D had requested P’s consent
AKA implied consent
Emergency Doctrine
Typically medical setting, presumed consent
D not liable if (1) the purpose of the conduct is to prevent or reduce a risk to the life or health of the P; (2) D reasonably believes that (a) D’s conduct is necessary to prevent or reduce a risk to the life or health of the P that substantially outweighs the P’s interest in avoiding the conduct; (b) immediate action is necessary to prevent or reduce the risk before it is practicable for D to obtain actual consent from P or a person empowered to grant consent for P; and (3) D has no reason to believe P would not have actually consented to the conduct if there had been the opportunity to do so
Participant in Athletic and Recreational Activities
Consider variety of factors, including whether conduct is a violation of a safety rule of the sport, whether conduct typically occurs during the activity, and whether the conduct involves significant risks of very serious injury or death
Some jurix prohibit recovery unless D was reckless w/ respect to risk of physical harm or acted with purpose to injure
Other jurix preclude liability for harm resulting from inherent risks of the game or activity
Consent to Sexual Conduct
General consent rules apply
In addition, when D causes a nonconsensual sexual contact with P, the contact constitutes an offensive contact for purposes of battery
When P expresses through words or conduct an unwillingness to engage in a sexual act, and the D nevertheless causes the person to submit to or perform the act, the P has not consented to the act, and the D is liable for the applicable intentional tort
Medical Treatment without Legally Effective Consent as Battery
Most jurix treat physician’s failure to adequately disclose the risks and benefits of a medical procedure as giving rise to a negligence claim (lack of informed consent)
Most jurix treat physician’s failure to secure consent to nature, type, or extent of physical contact the physician intentionally causes as a battery
Privileges that are defenses to intentional torts of battery, assault, and false imprisonment
Self-defense
Defense of Third Persons
Defense of Property
Privilege to Discipline or Control a Minor Child
Privilege to Protect Mentally Impaired Person from Self-Harm
Privilege of Arrest and Other Crime-Related Conduct
Merchant’s Privilege
Self-Defense
D has privilege to use force against P for purpose of defending himself against P’s unprivileged use of force if D reasonably believes that the force is both necessary and proportionate to the force P is intentionally inflicting or about to inflict
D’s use of force must be for a defensive purpose
Use of Non-Deadly Force
D may use nondeadly force for purpose of defending himself against another only if D reasonably believes that
(1) the other is intentionally inflicting or about to intentionally inflict unprivileged force on the D;
(2) the force that the D is using is proportionate to the other’s use of force or threat of force; and
(3) the D can prevent the other’s force or threat of force only by the immediate use of the force the D is employing
