• Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off
Reading...
Front

Card Range To Study

through

image

Play button

image

Play button

image

Progress

1/29

Click to flip

Use LEFT and RIGHT arrow keys to navigate between flashcards;

Use UP and DOWN arrow keys to flip the card;

H to show hint;

A reads text to speech;

29 Cards in this Set

  • Front
  • Back
Defenses to intentional torts
Two categories:
consent defense;
and privilege defense
Types of Consent
Actual
Apparent
Implied
Types of Privileges
Defenses: Self-Defense; Defense to Others; Unlawful Conduct
Privileges: Defense of Property, Recapture of Chattel, Detention for Investigation (Shopkeeper's Privilege),
Public/Private Necessity
Consent Rule Statement
For consent to be effective, (1) it must be given by one with capacity to consent, (2) and the consent must be to the particular conduct, or to substantially the same conduct
**Consent is a TOTAL bar to recovery. D will not be liable at all to the tort; It negates the wrongful element, prevents the existence of the tort.**
"To one who is willing, no wrong is done."
Burden of Pleading and Proving
Burden of proving lack of consent is upon the plaintiff for the basic intentional torts, except trespass to land
What is Actual Consent?
"Consent in Fact"
Exists if P is, in fact, willing that the conduct (though not necessarily the consequences) occurs
Someone actually says, "I consent," or signs a consent form
What is Apparent Consent?
P, by their actions or inactions, implies consent
Found whenever P's conduct reasonably leads another to believe that P has consented
What is Implied Consent?
Consent implied by law; Emergency situation where P is incapable of consenting and a REASONABLE PERSON would conclude that some conduct is necessary to prevent death or serious bodily harm
Use objective test for implied consent
What can negate the Consent Defense?
Intoxication
Mental Deficiency
If consent is given under duress (duress is threat of force or phys. harm, not economic duress i.e. Do this or you'll lose your job)
Consenting to a criminal act (split authority on this, but R2T says such consent is effective, while others say you can't consent to a criminal act)
Can lack of objection establish consent or community custom establish consent?
Yes.
Davies v. Butler
Case where kid died from excessive drinking/frat hazing. D argued he had consented to the activities.
Rule: Consent must be made by one who has the capacity to consent to the particular conduct/substantially the same conduct. If P is known to be incapable of giving consent b/c of intoxication, his failure to object, or even his manifestation of consent, will not protect the D. *Consent given by a person in such condition is no consent at all, esp when his state of mind is well-known to the party doing the injury.
OBrien v. Cunard SS
Case where P was given small pox shot but later said she didn't want it. Rule: If there is no conduct by the plaintiff to indicate lack of sent, then that is consent.
Miller v. HCA
(Case about implied consent)
Case where P's baby was born very prematurely and the doctors acted to resuscitate it.
"A dr. who is confronted with emergent circumstances and provides life-sustaining treatment to a minor child, is not liable for first obtaining consent from the parents."
R2T: Emergency Action Without Consent
Conduct that injures another does not make the actor liable to the other, even though the other has not consented to it if
- An emergency makes it necess to prevent harm to the other to act b/f there is an opp. to obtain consent and
-The actor has no reason to believe that the other, if he had the opportunity to consent, would decline.
Consent and Mistake
Mistake invalidates consent if the mistake was related to something MATERIAL in P's decision-making process. Material/relevant in context means that if P had known true fact, P would have given a dift scope of consent or withdrawn consent or limited consent in some way.
(Did D deduce a mistake to something that is relevant?)
D must be aware of P's mistake.
Mutual mistake not caused by D doesn't invalidate consent.
3 Categories of Mistaken Consent
1 - Mistake resulting from fraud by the D (invalidates consent)
2 - Mistake resulting from D's negligence/Mistake negligently caused by D (may bar D from using consent defense)
3 - Mistake not culpably caused by D (doesn't invalidate consent defense)
**Mutual Mistake will not invalidate consent.**
Self-Defense Rule Statement
When a person has reasonable grounds to believe that he is being or is about to be attacked, he may use such force as is reasonably necessary against the potential injury
When is self-defense available?
-Threat must be immediate/future threat won't do
- Can't unlawfully provoke then defend (unless aggressor asks to cease, unless aggressor uses non-deadly and the aggressed uses deadly force)
- Reasonable mistake as to need for SD does not eliminate the defense
- Retaliation is not a basis for defense if the threat has ended
- Mere words will not justify use of SD
- Retreat not necessary
Self-Defense Analysis
1 - Determine who was the first to commit the battery/assault (the other person will be allowed to use reasonable self-defense and aggressor won't be allowed to claim SD)
2 - Examine the level of force (no more force than reasonably necessary; can't use deadly force to oppose non-deadly)
Defense of Others
2 views:
- You can defend if the person being aided had a privilege to use force
- You can defend if you reasonably believe a 3rd party is entitled to exercise self-defense
(Difference is whether the person ACTUALLY had the right to self-defense or not)
Defense of Property
Generally, one may use reasonable force to prevent the commission of a tort against her property, but usu. first requires a warning, or asking the person to stop, unless that request would be futile
Reasonable force can be used, cannot use deadly force, direct or indirect
Effect of Mistake on Defense of Property
A reasonable mistake about the degree of force necessary does not destroy the privilege
Privileges that would supercede landowner's defense to property:
- Necessity
- Right to re-entry
- Right to enter upon another's land to recapture chattel
Recapture of Chattels Rule Statements
Owner may use reasonable force to retake goods if the dispossession is discovered promptly and there is fresh pursuit of the wrongdoer. However, you are liable for any mistake in regards to this privilege
Castle Laws
The lawful occupant of a home, car or workplace is presumed to have held a reasonable fear of imminent death/serious injury to himself or another when using defensive force that is likely to cause death/serious injury to another if both:
1 - the person agst whom force was used was in the process of unlawfully/forcefully entering, or had already; or was removing another against that person's will
2 - the person who used defense force had reason to believe that an unlawful and forcible entry/act was occurring
When is the Recapture of Chattels defense available?
- Must be in hot pursuit
- Demand for return of chattel must precede use of force unless the demand would be futile or dangerous
- Any undue delay in discovery or pursuit destroys the privilege
- Reasonable force, and never deadly force, is appropriate
Detention for Investigation
Shopkeeper's Privilege:
-Shopkeeper can do reasonable things related to investigating shoplifting or other criminal activity on the premises.
-Can be invoked by non-merchants
-Does not extend to the coercion of payment (which is imprisonment for debt)
-Must be conducted in a reasonable manner and for a reasonable amount of time
Privilege of Public Necessity
One is privileged to enter another's land if it is, or actor reasonably believes it to be necess for the purpose of avoiding an imminent public disaster.Private rights of an individual must yield to the consideration and the interests of society.
*Can't cause > harm than appears necess
**Main issue is compensation: Even tho there is technically no tort, can P recover? (idea of taking)
*Private individuals can exercise public necess.
Privilege of Private Necessity
One is privileged to interfere with prop. rights of another to avoid greater harm, but must compensate the possessor for any harm caused by the interference
*Negates the tort claim, but person has to pay for any damage
*Applies even if the emergency is the actor's own making
*Must be exercised for a reasonable time and in a reasonable manner, and if you go beyond the scope of the emergency, then a claim may arise
Unlawful Conduct
When plaintiff's injuries are a direct result of his knowing and intentional participation in a criminal act, he can't seek compensation for the loss, if the criminal act is judged to be so serious an offense as to warrant denial of recovery