Defenses To Intentional Torts

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Defenses to Intentional Torts

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Consent

Consent to be effective:
-Given by one with the capacity to consent
-To the particular conduct or to substantially the same conduct
-Intoxication, age or mental deficiency may negate capacity
-May be established by lack of objection or community custom
-Consent given under duress is invalid
-Consent to a criminal act-split authority
-Was the mistake related to something (relevant) material in P’s decision-making process?

Actual Consent (Davies v. Butler, pg. 135) Apparent Consent (O’Brien v. Cunard S.S. Co., pg. 138) Implied Consent-emergency action is acceptable (Miller v. HCA, pg. 139), Capacity to Consent (Davies v. Butler, pg. 135), Scope of Consent, Consent Based on Mistake (DeMay v. Roberts, pg. 143), Consent Based on Duress-invalid, Consent based on a Criminal Act (Hudson v Craft, pg. 148)


Privileges and Defenses

Self-defense is a question of reasonableness under the cirucmstances

-It must be immediate
-You can't provoke and then defend yourself
-Reasonable mistake as to need for self-defense doesn not eliminate the defense
-Retaliation not a basis for the defense if the threat has ended
-Duty to retreat-fact specific-no such duty as to non-deadly force-split authority when deadly force involved
-Force deadly or otherwise must be reasonable
-Castle Laws-home, workplace, and motor vehicle protection; presumption of fear of death or serious bodily harm-you can use deadly force
-Recapture of Chattels-an owner may use reasonable force to retake goods if the dispossession is discovered promptly and there is fresh pursuit of the wrongdoer; liable for damage caused by any mistake in exercising the privilege
-Shopkeeper’s privilege-reasonable belief, detention for a reasonable manner for a reasonable time; liability is based on reasonableness of the shopkeepers actions
- Public Necessity Privilege: 1) anyone is completely privileged 2) to use reasonable force 3) which is actually or apparently necessary 4) to avoid an imminent risk of greater legally recognizable harm 5) to the community or many persons 6) a reasonable mistake does not destroy the privilege 7) some statutes and cases abrogate the general rule and require compensation. 8) 5th amendment-nor shall private property be taken for public use w/o just compensation
- Private Necessity: Protect himself, the possessor of the land, or some third person; the privilege must be exercised reasonably. Same as public necessity except: 1) the action benefits only one or a few persons 2) the actor is liable for actual losses 3) if the P resists the assertion of the privilege, the privilege becomes absolute, and no further compensation is required by the D for harm reasonably inflicted thereafter.
-Unlawful conduct-when the P’s injury is a direct result of his knowing and intentional participation in a criminal act he cannot seek compensation for the loss, if the criminal act is judged to be so serious an offense as to warrant denial of recovery.

Self-Defense (Silas v. Bowen), Defense of Others (Drabek v. Sabley, pg. 152), Defense of Property (Katko v. Briney, pg. 155), Recapture of Chattels (Hodgeden v. Hubbard pg. 158), Shopkeeper’s Privilege (Dillard Department Stores, Inc. v. Silva pg. 159), Necessity Privilege (Surocco v. Geary, pg. 162), Recapture of Goods on the Land of Another, Recapture of Land, Unlawful Conduct (Barker v. Kallash pg. 170)

**Contributory negligence is not a defense for an intentional tort**