Mbe Florida -- Torts -Intentional, Defenses

Front 1

If all the elements of an intentional tort are present, the DF may avoid liability by ...

Back 1

If all the elements of an intentional tort are present, the DF may avoid liability by showing one of three affirmative defenses:

-- that PF consented to DF's action
-- that DF's actions are protected by privilege (e.g., self-defense)
-- that DF was forced to act out of necessity (e.g., to avoid natural disaster)

Front 2

If all the elements of an intentional tort are present, the DF may avoid liability by proving PF's CONSENT.

What is the analysis to determine whether DF can use CONSENT as a defense?

Back 2

(i) does the PF have legal capacity to consent? (drunks, minors, mentally challenged)
(ii) was there valid consent (express or implied)
(iii) were DF's actions within the scope of PF's consent?

Front 3

If all the elements of an intentional tort are present, the DF may avoid liability by proving PF's CONSENT.

When does a person lack legal capacity to consent?

Back 3

Drunks, "very young children" and the mentally challenged cannot consent to being torted
-- a drunk can't consent to a boxing match
-- a minor can't consent to sex (battery)

The rule is asymmetrical: these classes of people CAN tort someone, but CANNOT consent to being torted

Front 4

If all the elements of an intentional tort are present, the DF may avoid liability by proving PF's CONSENT.

Exception: When can a child consent?

Back 4

as a general rule, a "very young child" cannot consent to being torted.

however, minor can consent to behaviors that (i) they understand and that (ii) are age appropriate
e.g., childish games such as wrestling with a friend

Front 5

DF may avoid liability for intentional torts by proving PF's CONSENT.

What are the two types of consent?

Back 5

a PF may consent expressly (words in quotation marks) or impliedly

Front 6

DF may avoid liability by proving PF's CONSENT.

When is EXPRESS CONSENT not valid? (example)

Back 6

Express Consent is NOT a defense for DF where the consent was obtained by DF by fraud, mistake, or duress.

Example: no consent to sex (battery) where DF did not disclose STD

Front 7

DF may avoid liability by proving PF's consent. EXPRESS CONSENT is not valid when obtained by fraud, mistake, or duress.

Name the subtle exceptions to each of fraud, mistake, and duress.

Back 7

-- Mistake: PF consent by mistake OK where DF has clean hands (ie, DF did not cause mistake or know mistake was made)
-- Fraud: PF consent OK if DF's fraud concerns a non-essential matter ("I'm a sharp-shooter" is essential; "here's a (fake) $10")
-- Duress: PF consent OK where DF makes threats of future action or future economic deprivation

Front 8

DF may avoid liability for intentional torts by proving PF's IMPLIED CONSENT.

What are the three types of implied consent?

Back 8

-- Reasonably inferred from PF's overt conduct (date hypo)
-- Arising from usage and custom (sports)
-- Consent by law (e.g., where action is necessary to save a person's life)

Front 9

DF may avoid liability for intentional torts by proving PF's IMPLIED CONSENT.

PF's consent can arise from custom and usage.
-- State the general proposition regarding custom and usage.

Back 9

-- where PF voluntarily goes to a place or voluntarily participates in an activity
-- then PF is considered to have consented to the usual invasions that occur at that place or with respect to that activity

Front 10

DF may avoid liability for intentional torts by proving PF's IMPLIED CONSENT.

Where PF's consent arises from custom and usage, what is the scope of the consent?

Back 10

-- PF consents to everything that typically occurs with respect to that activity
-- whether or not that act is considered illegal or a foul under game rules
-- e.g., in basketball, players consent to being fouled, but not having hand stomped on

Front 11

DF may avoid liability for intentional torts by proving PF's IMPLIED CONSENT.

PF's consent can arise from PF's overt acts.
-- State the relevant analysis.

Back 11

-- DF can claim that PF consented to kiss based on DF's reasonable interpretation of PF's overt acts (dinner and brandy on the couch & PF leaning into DF)
-- whether DF's interpretation was "reasonable" is a question for the jury
-- if the DF interpreted the PF's actions as consenting to sex, then no question for the jury (DF's interpretation NOT reasonable), and the DF liable for battery since PF's overt acts (dinner, brandy, & PF leaning into DF) was not consent for sex

Front 12

DF may avoid liability for intentional torts by proving PF's IMPLIED CONSENT.

PF's consent can arise from PF's overt acts.
-- What is the role of PF's thoughts?

Back 12

-- The subjective (secret) thoughts of PF are irrelevant (PF hostess was thinking "I hope he doesn't kiss me")
-- BECAUSE the analysis is whether the DF's interpretation was reasonable, so we are looking only from the DF's perspective

Front 13

DF may avoid liability for intentional torts by proving PF's CONSENT.

What are the limits of PF's consent?

Back 13

All consent has a scope. If DF exceeds that scope, then the consent is VOID
-- e.g., PF consents to surgery on knee, DR also operates on ankle = battery
e.g., PF invites X over to watch game, X crawls into attic = trespass

Front 14

DF may avoid liability for intentional torts by proving PF's IMPLIED CONSENT.

What is consent by law?

Back 14

In emergency situation, where reasonable person would have concluded that contact is necessary to prevent death or serious bodily harm.

Front 15

If all the elements of an intentional tort are present, the DF may avoid liability by ...

Consent, ___, and _____

Back 15

-- that PF consented to DF's action
-- that DF's actions are protected by privilege (e.g., self-defense)
-- that DF was forced to act out of necessity (e.g., to avoid natural disaster)

Front 16

If all the elements of an intentional tort are present, the DF may avoid liability by proving that he enjoyed a PROTECTIVE PRIVILEGE.

Name the three PROTECTIVE PRIVILEGES

Back 16

Self-defense
Defense of others
Defense of property

Front 17

If all the elements of an intentional tort are present, the DF may avoid liability by proving that he enjoyed a PROTECTIVE PRIVILEGE.

In determining whether one of the Protective Privileges apply, requires considerations of ...

Back 17

Timing
Accuracy

Front 18

If all the elements of an intentional tort are present, the DF may avoid liability by proving that he enjoyed a PROTECTIVE PRIVILEGE.

If DF commits a tort, describe the "timing" requirement in order to utilize PROTECTIVE PRIVILEGE?

Back 18

-- The Timing: requirement means: NO revenge
-- For privilege to apply to DF's act against X, X's action must be imminent or in progress.
-- Accuracy: response reasonable (even if mistaken) given the scope of the threat

Front 19

If all the elements of an intentional tort are present, the DF may avoid liability by proving that he enjoyed a PROTECTIVE PRIVILEGE.

Example of "timing" requirement of PROTECTIVE PRIVILEGE

Back 19

X swings arm to hit DF
-- DF stops X's arm = PP applies
-- DF takes X's hit, then a few moments later slaps X = PP does not apply = two batteries have occurred

Front 20

If all the elements of an intentional tort are present, the DF may avoid liability by proving that he enjoyed a PROTECTIVE PRIVILEGE.

If DF commits a tort, describe the "accuracy" requirement in order to utilize PROTECTIVE PRIVILEGE?

Back 20

-- Accuracy: the response must be reasonable given the scope of the threat
-- Reasonable Response: Mistake will not negate the privilege: e.g., tackle actor (& break arm) chasing another with rubber knife
-- Proportional Force given Scope of threat: degree of force must be reasonably necessary given the degree of harm that DF reasonably interprets as existing
== RULE of symmetry == Defense has a SCOPE (if scope exceeded, defense does not apply)

Front 21

If all the elements of an intentional tort are present, the DF may avoid liability by proving that he enjoyed a PROTECTIVE PRIVILEGE.

When can a DF use deadly force?

Back 21

-- when DF reasonably believes that his life (or third person's life) is in danger
-- (MBE) never available to protect property

Front 22

If all the elements of an intentional tort are present, the DF may avoid liability by proving that he enjoyed a PROTECTIVE PRIVILEGE.

In asserting a protective privilege, DF may use force in certain circumstances.

In the use of force, what is the difference in the MBE standard vs. the Florida standard?

Back 22

-- MBE: duty to retreat, except in home
-- Florida: no duty to retreat (DF may stand ground where DF has right to be): use of force (even deadly force) OK to prevent death, great bodily harm OR to prevent commission of forcible felony

Front 23

If all the elements of an intentional tort are present, the DF may avoid liability by proving that he enjoyed a PROTECTIVE PRIVILEGE.

When is the protective privilege generally not available to a DF? (2)

Back 23

-- DF's act of self-defense is generally not protected where DF is the initial aggressor
-- if defense not proportional, then defense is lost (but see difference in use of deadly force for MBE v. Florida)

Front 24

If all the elements of an intentional tort are present, the DF may avoid liability by proving that he enjoyed a PROTECTIVE PRIVILEGE.

Describe the Defense of Others protective privilege

Back 24

If DF reasonably believes that other person could use force to protect himself, then DF may use force that reasonably seems appropriate to DF

Front 25

If all the elements of an intentional tort are present, the DF may avoid liability by proving that he enjoyed a PROTECTIVE PRIVILEGE.

-- Describe the defense of property protective privilege
-- What force is Excluded?

Back 25

-- DF may use reasonable force to prevent commission of tort against real or personal property
-- No deadly force (no deadly traps)
-- (Florida): Except to prevent commission of forcible felony

Front 26

If all the elements of an intentional tort are present, the DF may avoid liability by proving that he enjoyed a PROTECTIVE PRIVILEGE.

In order to claim Defense of Property protective privilege, DF claim must show ... (2)

Back 26

-- that he made cease and desist order first (or it was too dangerous or futile)
-- (Florida) no self-help (cannot re-enter land to claim property)

Front 27

If all the elements of an intentional tort are present, the DF may avoid liability by proving that he enjoyed a PROTECTIVE PRIVILEGE.

In the Defense of Property protective privilege, what is the role of deadly force?

Back 27

-- (MBE) no deadly force, unless invasion of property entails serious threat of bodily harm
-- (Florida) no deadly force, unless DF acting to prevent commission of forcible felony

Front 28

If all the elements of an intentional tort are present, the DF may avoid liability by proving an Affirmative Defense.

NECESSITY, the third Affirmative Defense that DF may assert, is defined as ...

Back 28

-- a person (DF) may interfere with real or personal property of another
-- when it is reasonably necessary to avoid threatened injury to himself or his property
-- and the threatened injury to DF (or his property) is substantially more serious than the invasion undertaken to avert it

Front 29

If all the elements of an intentional tort are present, the DF may avoid liability by proving an Affirmative Defense.

NECESSITY, the third Affirmative Defense that DF may assert, can be used by DF ...

Back 29

DF can claim Necessity defense ONLY to defend against a property tort claim
-- trespass to chattels: e.g., DF mows down flowers with runaway horse
-- trespass to land: e.g., lands plane when engine failing
-- conversion: e.g., lands plane onto farmer's crop

Front 30

If all the elements of an intentional tort are present, the DF may avoid liability by proving an Affirmative Defense.

NECESSITY, the third Affirmative Defense that DF may assert, comes in two types ...

Back 30

Public Necessity
Private Necessity

Front 31

If all the elements of an intentional tort are present, the DF may avoid liability by proving an Affirmative Defense.

Define PUBLIC NECESSITY

Back 31

-- DF invades PF's property
-- in an emergency
-- to protect the community as a whole or a significant group of people

== SAVIOUR of the PUBLIC

Front 32

If all the elements of an intentional tort are present, the DF may avoid liability by proving an Affirmative Defense.

What are the legal consequences of a valid PUBLIC NECESSITY defense?

Back 32

Absolute defense -- not liable for ANY damages

Front 33

If all the elements of an intentional tort are present, the DF may avoid liability by proving an Affirmative Defense.

What is an example of PUBLIC NECESSITY?

Back 33

-- DF kills rabid dog chasing several children
-- PF-owner of the dog sues for conversion (DF maxed out on harm school)
-- DF wins using Public Necessity defense & therefore is not liable for ANY damages to PF

Front 34

If all the elements of an intentional tort are present, the DF may avoid liability by proving an Affirmative Defense.

Define PRIVATE NECESSITY

Back 34

-- DF invades PF's property
-- in an emergency
-- to protect himself or his property

Front 35

If all the elements of an intentional tort are present, the DF may avoid liability by proving an Affirmative Defense.

What are the legal consequences of a valid PRIVATE NECESSITY defense?

Back 35

-- DF must pay for any actual damages
-- DF not liable for punitive or nominal damages (e.g., DF trespasses into PF's shed to avoid rabid dog; no damages where DF caused no damages)
-- PF must tolerate DF's presence (ie, DF has "right of sanctuary") as long as emergency continues (e.g., normal right to expel trespasser suspended during emergency)

Front 36

If all the elements of an intentional tort are present, the DF may avoid liability by proving an Affirmative Defense.

How is PRIVATE NECESSITY similar to Eminent Domain law?

Back 36

-- Mini-right of eminent domain
-- DF can take/use PF property within scope of presented harm, but must pay PF for use/damages (if any) inflicted on the property