Defenses To Intentional Torts

Front 1

PRIVILEGES/DEFENSES

Back 1

Defenses to Intentional Torts

Front 2

EXPRESS-by words/ IMPLIED-by intentional conduct/ SILENCE; INACTION- can infer consent w actions

Back 2

CONSENT

Front 3

If P expressly consents to an intentional interference w/ his person or property, D will not be liable for the interference

Back 3

Express Consent

Front 4

Existence of consent may also be implied from P’s conduct, from custom, or from the circumstances.
i. (behavior, manner, conduct D can’t guess what’s on P’s mind)
ii. can rely on what reasonable person would understand from P’s conduct
iii. can be implied by usage or custom

Back 4

Implied Consent

Front 5

If a reasonable person (objective standard) would infer consent to the act in question from the overt acts and manifestations of feeling of the plaintiff and

This does not require the plaintiff to say-DON’T DO THAT

Secret undisclosed consent may still be consent or lack thereof does not negate it

Back 5

Inaction Consent

Front 6

Burden to clarify express consent is on the plaintiff **unless the D is in the medical field- in which case the burden would be on the medical personnel to actively obtain consent**

Consent is NOT effective if given under duress (physical force or threats of immediate harm)
When playing a sport, you consent to all the contact and everything outside the rules that is customary.

Back 6

Consent ***NOTES***

Front 7

A medical care provider may act in the absence of express consent if delay will cause death or great bodily harm- it is reasonable to infer consent to treatment- (if patient is unconscious-incompetent-or if patient is a child) also if a reasonable person would consent to treatment and the dr. has no reason to believe that the patient would refuse treatment.

Back 7

EMERGENCY CONSENT/PRIVILEGE

Front 8

Defense for: Battery, Assault & False Imprisonment

Back 8

SELF-DEFENSE (3 Elements)

Front 9

i- Danger is real
ii- Danger is NOT real, but reasonably mistaken as so-depends on the circumstance & past relationship of parties

Back 9

Valid when D reasonable believes that self-defense is necessary to protect himself.

Front 10

D may use as much force that is necessary to protect himself **** if D becomes aggressor then D is liable – D may not use force after P is subdued or unconscious

Back 10

Liability Line

Front 11

Deadly force or force likely to cause serious injury or death can ONLY be used if: he reasonably believes that he is in danger of similar harm AND it is NOT required that D try to retreat or escape

Back 11

Comparable Force

Front 12

3rd party D believes someone else is in danger—APPLY THE SAME RULES AS IN SELF-DEFENSE TO THE 3RD PARTY D

Back 12

DEFENSE OF OTHERS

Front 13

Actor can only use defense if the 3rd party was entitled to the defense-courts are split on this- force either way must be reasonable

Back 13

Derivative

Front 14

Defendant and Plaintiff's Possession

Back 14

PROPERTY PRIVILEGES

Front 15

1- Never endanger great bodily harm or death

2- To expel another or a chattel or to prevent another’s intrusion upon his land or chattels

3- Reasonableness for force depending on value of property

Back 15

Protecting Property in Defendants (possessor/owner) possession

Front 16

There MUST be actual intrusion or a threat of interference with the chattel of the possessor

Unless it would be ineffective or no time to do so- D must first request intruder to leave or desist- if he does not then reasonable force may be used but only enough necessary to prevent/stop intrusion

Back 16

PP in Defendant's Possession ***NOTES***

Front 17

1- May use force when possession was obtained wrongfully
2- Fresh pursuit; theft was promptly discovered
3- Reasonable force, no more force than necessary
4- Defendant has the right to possession; doesn’t have to be the owner
5- Demand for return of property, unless the demand is useless-

Back 17

Protecting Property in Plaintiffs Possession

Front 18

You may use violence to get it back-
If a person is being chased they don’t have the right to resist capture
**use false imprisonment to get it back**
***if person throws item away you do NOT have the right to tackle them-the recapture privilege is gone***
****if you chase and tackle the wrong person- they show receipts and your actions were reasonable- it doesn’t matter- you DO NOT have the privilege- this is a battery-YOU MUST BE RIGHT****
If item is borrowed and stolen you still have the privilege

Back 18

PP in Plaintiff's Possession ***NOTES***

Front 19

If a shopkeeper reasonably believes there has been an unlawful taking and an investigation is reasonable under the circumstances, the guard acted reasonably even if wrong

Back 19

Shopkeeper's Privilege

Front 20

*******YOU DO NOT have to be right for detainment but you DO have to be right for recapture*******
(once they leave the stores property the shopkeepers privilege decreases and the “suspects” can not be detained)
Reasonable investigation- Cannot inquire about past events – cannot detain them for too long—
Defense to False Imprisonment- D cannot use force in this case

Back 20

Shopkeeper's Privilege ***NOTES***

Front 21

A defense to the property torts but NOT to Assault/Battery or FI.

Similar to self-defense or defense of others/property EXCEPT it is not the defendant that puts D or someone related to D or Ds property in danger

Back 21

NECESSITY PRIVILEGES

Front 22

a- Forces of nature
b- Fire
c- Storms
d- Disease

Back 22

Some necessity arises from some cause not related to the Plaintiff- Include but are not limited to:

Front 23

A person who is not acting for his or her own interest but for the interest of the public; acting to avoid danger of the community; the person reasonably believes the tortuous act was necessary to help the public ***need not be a public official***

Back 23

PUBLIC NECESSITY

Front 24

PUBLIC NECESSITY IS A COMPLETE DEFENSE—D WILL BE EXCUSED FROM ANY AND ALL LIABILITY DOES NOT PAY FOR TORT!
Ex.
(Blowing up house to stop the spread of fire-killing livestock to stop the spread of disease-etc)

Back 24

Public Necessity ***NOTES***

Front 25

A person who is acting for their own interest but it is necessary- an incomplete defense in that you are privileged to do the act but you will pay for the harm you did in doing the act

Back 25

PRIVATE NECESSITY

Front 26

You’re privileged to do the harm BUT you still have to pay for it- IF SOMEONE INTERRUPTS YOUR PRIVILEGE THEN THAT PERSON HAS COMMITED A TORT!

A person may be excused from trespass under private policy

Back 26

Private Necessity ***NOTES***

Front 27

Arrest- must have warrant or probable cause-

MISTAKE OF IDENTITY NEGATES PRIVILEGE

A PRIVATE CITIZEN MAY DO AN ARREST- & SOME PRIVATE AND GOVERNMENT OFFICIALS HAVE IMMUNITY- THEY ARE NOT LIABLE FOR TORTIOUS ACTS

Back 27

AUTHORITY OF LAW

Front 28

When interests of the D outweigh interests of P & is reasonable under the circumstances- imposed for the purpose of preventing another from inflicting personal injuries OR interfering with property in ones lawful possession

Back 28

JUSTIFICATION