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110 Cards in this Set

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ASSAULT
Assault occurs when the defendant's acts intentionally cause the victim's reasonable apprehension of immediate harmful or offensive contact.
BATTERY
A person commits a battery when they intend to cause a harmful or offensive contact and that contact actually occurs.
FALSE IMPRISONMENT
intentionally causes

confinement or restraint

within a bounded area.

(1) physical barriers;

(2) force or threat of immediate force against the victim, the victim's family or others in her immediate presence, or the victim's property;

(3) omission where the defendant has a legal duty to act; or

(4) improper assertion of legal authority.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
extreme and outrageous conduct,

intentionally or recklessly causes

the victim severe mental distress.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS FOR COMMON CARRIERS AND INKEEPERS
Common carriers and innkeepers are liable for intentional gross insults which cause patrons to suffer mental distress.

There is no requirement the defendant behave in an extreme or outrageous manner or that the victim suffer extreme distress.
THIRD PARTY INJURIES AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
A bystander can claim intentional infliction of emotional distress only if the third party is

(1) a close relative of the primary victim;

(2) present at the scene of the outrageous conduct against the primary victim; and

(3) the defendant knows the close relative is present.
TRESPASS TO CHATTELS
Intentional interference

with another's right of possession.

Mistake as to the lawfulness of the defendant's action is no defense so long as they intended to commit the act that interfered with the possession.
TRESPASS TO LAND
Intentional entry onto another's land

Causing another or an object to enter onto the land of another.
TRESPASSING ANIMALS
The owner of a trespassing animal is strictly liable for the damage done as long as it was reasonably foreseeable. (Does not include household pets).In Arizona an owner of land is not entitled to recover for damage resulting from the trespass of animals unless the land is enclosed within a lawful fence unless barred from fencing by law or ordinance.
CONVERSION
A conversion is the intentional exercise of dominion and control over a chattel which so seriously interferes with the right of another that the defendant may be required to pay the full value of the chattel.
DAMAGES IN TORTS
Personal injury - compensate for all damages (past, present and prospective, special and general. Property damage - the measure is the reasonable cost of repair or fair market value based on seriousness of the damage. Punitive damages - there is no per se prohibition against punitive damages in Arizona.
DEFENSE OF OTHERS
When a person has reasonable grounds to believe that another is being, or is about to be, attacked, he may use such force as is reasonably necessary for protection against potential injury. Deadly force is allowed so long as the defender reasonably believed deadly force was being used against the victim.
DEFENSE OF PROPERTY
In Arizona, one may use reasonable force to prevent against the commission of a tort against her property. A person may threaten deadly force but not use it unless defending herself or others.
DISCIPLINE
A parent or teacher may use reasonable force in disciplining children, taking into account the age and sex of the child and the seriousness of the behavior.
SELF-DEFENSE
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 for protection against potential injury.
CONSENT
A defendant is not liable if the plaintiff consented to the defendant's act. Consent may be given expressly; it may also be implied from custom, conduct, or words, or by law.
PUBLIC NECESSITY
Where the act is intended to protect the entire community the defense is absolute, a person may interfere with the real or personal property of another where the interference is reasonably and apparently necessary to avoid threatened injury. The threatened injury must be more serious than the invasion.
RECAPTURE OF CHATTELS
Where another's possession began lawfully, one may used only peaceful means to recover the chattel. Force may be used to recapture a chattel only when in hot pursuit.
REENTRY ONTO LAND
In Arizona, an owner of realty commits no tortious conduct in retaking possession of land from one not having a right to possession if she can do so without a breach of peace. Otherwise summary procedures for recovering possession should be used.
PRIVILEGE OF ARREST
(1) Felony arrest by Police - Reasonable belief that felony has been committed, and reasonable belief that person arrested committed it. (2) Felony arrest by Private Citizen - Reasonable belief that person arrested actually committed felony, and felony actually committed. (3) Force allowed - Force reasonably necessary to make arrest, deadly force if suspect poses threat of serious harm."
COMPARATIVE NEGLIGENCE
Arizona has adopted a pure comparative negligence. In Arizona a claimant's damages are reduced in proportion to the relative degree of fault that is the proximate cause of injury or death. If the plaintiff intentionally, willfully or wantonly contributed to the injury or death he may not benefit from comparative fault principles but the jury is free to find for him as they saw fit.
CONTRIBUTORY NEGLIGENCE
Where a plaintiff or claimant has, through their own negligence, caused or contributed to the injury they suffered from a tort she is completely barred from recovery under a contributory negligence statute. MBE only. Not applicable In Arizona.
DAMAGES IN NEGLIGENCE CASES
Plaintiff has a duty to take reasonable steps to mitigate damages. Failure to do so precludes recovery of any additional damages caused by the aggravation of the injury.
DUTY OF CARE OWED TO A TRESPASSER
No duty is owed to an undiscovered trespasser. As to discovered or anticipated trespassers, the landowner must warn of or make safe concealed, unsafe, artificial conditions known to the landowner involving risk of death or serious bodily harm, and and use reasonable care in the exercise of "active operations" on the property. (No duty is owed for natural conditions or less dangerous artificial conditions.)
DUTY OWED TO USERS OF RECREATIONAL LAND
A landowner who permits the general public to use his land for recreational purposes without charging a fee is not liable for injuries suffered by a recreational user, unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.
DUTY TO DISCLOSE RISKS OF TREATMENT
A doctor has a duty to disclose the risks of treatment to enable a patient to make an informed consent.
INDEPENDENT CONTRACTORS
Generally a principle will not be vicariously liable for tortuous acts of her agent if the agent is an independent contractor. In Arizona, the rule that a statute or regulation imposing a duty of care cannot be delegated to an independent contractor does not apply here. A property owner will not be liable for the breach of duty by a contractor. A principle will be held liable if the contractor is performing an inherently dangerous activity on her behalf.
INVITEES
Invitees enter land in response to an invitation by the landowner (i.e., they enter for a purpose connected with the business of the landowner or enter as members of the public for a purpose for which the land is held open to the public).
INVITEES - DUTY OF CARE
The landowner or occupier owes the same duties owed to licensees plus a duty to make reasonable inspections to discover nonobvious dangerous conditions and, thereafter, make them safe. One will lose invitee status if she exceeds the scope of the invitation.
LAST CLEAR CHANCE
Last clear chance is an exception to contributory negligence. Under this rule the person with the last clear chance to avoid an accident who fails to do so is liable for negligence. MBE only. Not applicable In Arizona.
NEGLIGENCE - STANDARDS OF CARE - AUTOMOBILE DRIVERS TO GUESTS
A guest in an automobile is owed a duty of ordinary care. In the few guest statute states, one is liable to nonpaying passengers only for reckless tortious conduct.
NEGLIGENCE - STANDARDS OF CARE - BAILOR/BAILEE
There are two types of bailments. Where the bailment is for the sole benefit of the bailee, the bailor need only inform the bailee of known dangerous defects in the chattel. Where the bailment is for hire, the bailee owes a duty to inform the bailee of defects known to him, or which he would have known by excercise of reasonable dilligence.
NEGLIGENCE - STANDARDS OF CARE - CHILDREN
Children are held to the standard of a child of like age, education, intelligence, and experience. This is a subjective test. A child under four is usually without capacity to be negligent. Children engaged in adult activities may be required to conform to an "adult" standard of care.
NEGLIGENCE - STANDARDS OF CARE - COMMON CARRIERS
In Arizona, common carriers are held to an ordinary standard of reasonable care under the circumstances.
NEGLIGENCE - STANDARDS OF CARE - INKEEPERS
Innkeepers are held to a very high degree of care and are liable for slight negligence. For the higher innkeeper standards to apply, the plaintiff must be a guest.
NEGLIGENCE - STANDARDS OF CARE - RAILROAD
A railroad owes an affirmative duty of care to travelers on the highway in themaintenance and safeguarding of its crossings and in the operation of its trains. The railroad must not only give reasonable warning of crossing and approaching trains but also take precautions comensurate with the danger to avoid injury at its crossings.
NEGLIGENCE AND GOVERNMENTAL LIABILITY
In order to establish the liability of governmental entities or their agents in an action based on negligence, it is still necessary to demonstrate (1) that the defendant owed a duty to the plaintiff; (2) a breach of that duty; and (3) an injury proximately caused by such breach. 
NEGLIGENCE AND RES IPSA LOQUITUR
Arizona requires three elements for res ipsa loquitur. 1. The accident must have been the kind that does not ordinarily occur absent negligence; 2. it must have been caused by an instrumentality or agency subject to the control of the defendant; and 3. the plaintiff must be unable to show the circumstances that caused the insturmentality or agency to injure him.
NEGLIGENCE DUTY OF CARE
A duty of care is owed to all foreseeable plaintiffs. The extent of the duty is determined by the applicable standard of care. The duty is owed to: 1. all foreseeable plaintiffs, and 2. plaintiffs foreseeable as a matter of law a. rescuers b. viable fetuses
NEGLIGENCE ELEMENTS OF A PRIMA FACIE CASE:
1. Duty to conform to a specific standard of conduct for protection of plaintiff against an unreasonable risk of injury 2. Breach of that duty by defendant 3. Cause - actual and proximate cause of plaintiff's injury 4. Damages
NEGLIGENCE PROFESSIONAL STANDARD OF CARE
A professional or someone with special occupational skills is required to possess the knowledge and skill of a member of the profession or occupation in good standing in similar communities. Specialists will be held to a still higher degree of care. In Arizona, a health care provider is liable only for failure to excercise the degree of care, skill, and learning expected of a reasonable, prudent health care provider in the same profession or class within the state.
COMPARATIVE ADVANTAGE
Arizona has enacted a comparative contribution system. In determining the pro rata share of each tortfeasor look at the relative degrees of fault as the basis for allocation.
ASSUMPTION OF RISK
Under the assumption of risk defense, a plaintiff may be denied recovery if she assumed the risk of any damage caused by the defendant's act. Plaintiff must have known of the risk and voluntarily proceeded in the face of the risk. In Arizona the assumption of risk defense only affects the degree to which the plaintiff can recover. It does not bar recovery
ATTRACTIVE NUISANCE DOCTRINE
An owner/occupier of land has a special duty where a dangerous condition exists that he is or should be aware of if he knows or should know children frequent the vicinity of the condition and the condition is likely to cause injury, i.e., dangerous because of child's inability to appreciate the risk, and the expense of remedying the situation is slight compared with the magnitude of the risk.
CHILDREN AND DUTY OF CARE
A child must exercise the degree of care that a reasonable child of like intelligence and experience would use.
COLLATERAL SOURCE RULE
In negligence actions interest from date of damage in personal injury actions and attorney's fees are not recoverable.
DRAM SHOP LAW
In Arizona tavernkeepers are liable for injuries foreseeably caused by serving to a minor or intoxicated adult. The duty is owed to the patron as well as third parties. Liability attaches if he knew or should have known. Social hosts who do not hold liquor licenses are immune from dramshop laws but not criminally for serving minors.
PUBLIC NUISANCE
A public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community. Recovery is available for public nuisance only if a private party has suffered some unique damage not suffered by the public at large.
REASONABLE PERSON STANDARD
The reasonable person standard is an objective standard measuring one's conduct against what the average person would do. A defendant's mental deficiencies and inexperience are not taken into account However, the "reasonable person" is considered to have the same physical characteristics as D.
RESPONDEAT SUPERIOR
Employers are vicariously liable for negligent acts or omissions by their employees in the course of employment. For an act to be considered within the course of employment it must either be authorized or be so connected with an authorized act that it can be considered a mode, though an improper mode, of performing it.
LICENSEES
A licensee is one who enters on the land with the possessor's permission for her own purpose or business, rather than for the possessor's benefit.
LICENSEES - DUTY OF CARE
The possessor has a duty to warn of dangerous conditions (natural or artificial) known to the owner that create an unreasonable risk of harm to the licensee, and that licensee is unlikely to discover, and exercise reasonable care in -the conduct of "active operations" on the property. The possessor has no duty to inspect or repair. (Remember: Social guests are considered licensees.)
FAMILY CAR DOCTRINE
The owner of an automobile is liable for the tortuous conduct of immediate family and household members who are driving with the owner's express or implied permission. In Arizona the vehicle must be used for a family purpose. Family purpose is broadly construed.
PRIVATE NECESSITY
Where the act is solely to benefit any person or toprotect any property from destruction the defense is qualified. The actor must pay for any injury or damage he causes.
DEFAMATION
A person commits the tort of defamation when they make a defamatory statement that turns out to be false about another published to a third party that damages the other.
DEFAMATION AND MATTERS OF PUBLIC CONERN
The First Amendment protects speech on matters of public concern therefore the plaintiff must prove falsity, fault and damages. If the plaintiff is a public figure he must prove actual malice. A private person need only prove negligence.
DEFAMATION AND QUALIFIED PRIVELEGE
In Arizona, no consumer reporting agencey or user of such information will be held liable for inaccuracies unless grossly negligent.
DEFAMATION DEFENSES
Truth, absolute privilege (for comments made in the course of judicial, legislative or executive proceeedings, made between spouses), and qualified privilege.
INTERFERENCE WITH BUSINESS RELATIONS
An intentional action that caused a third person to breach an existing contract with the plaintiff. A defendant may be liable if interference with the plaintiff's contractual relations makes performance more difficult.
INVASION OF PRIVACY
In Arizona use of a person's name or picture for commercial advantage withut permission is an unlawful appropriation. A public figure must prove actual malice. An interference with the plaintiff's seclusion in a manner objectionable to a reasonable person is an intrusion.
PUBLIC DISCLOSURE OF PRIVATE FACTS
The widespread dissemination of information that is factually accurate that would normally be confidential that would be objectionable to the average person. Newsworthy disclosures are not actionable.
ULTRA HAZARDOUS ACTIVITIES
An activity may be characterized as ultra-hazardous if it involves a substantial risk of serious harm no matter how much care is exercised. Strict liability applies if the activity is not a commonly engaged in activity. It is also a requirement that the harm result from the danger to be anticipated from the activity.
ULTRA HAZARDOUS ACTIVITIES EXTENT OF LIABILITY
The duty is owed only to "foreseeable plaintiffs."
COMMERCIAL SUPPLIER
A commercial supplier could be a manufacturer, retailer, assembler, or wholesaler. Most courts will consider mass producers of homes, commercial lessors, and sellers of used products that have been reconditioned or rebuilt as commercial suppliers.
PROVING A DESIGN DEFECT
For design defects, the plaintiff usually must show a reasonably alternative design involving a less dangerous modification or economically feasible alternative.
REMEDIAL MEASURES
In Arizona if a manufacturer conducts a product safety analysis or review and, as a result, takes reasonable remedial measures, the plaintiff may not use such information to prove negligence, that the product was defective or unreasonably dangerous, or other culpable conduct. It may be used to prove feasibility of precautionary measures or to impeach.
STRICT LIABILITY
Under strict liability a person is responsible for the damage and loss caused by their acts and omissions regardless of culpability or fault. The plaintiff needs to prove that the nature of the defendant's activity created an absolute duty to make safe, to which the defendant breached and the defendant was the actual and proximate cause of the plaintiff's injuries.
PRODUCT NOT SUBSTANTIALLY ALTERED
To prove actual cause, the plaintiff must trace the harm suffered to a defect in the product when it left the defendant's control. To prove proximate cause the plaintiff must prove that the harm was the result of the normal use of and within the increase risk caused by the product.
PRODUCTS LIABILITY
A prima facie case of strict products liability is established by showing that when the product left the defendant's control, it was in a defective condition that made it unreasonably dangerous, and the defect was the actual and proximate cause of plaintiff's injuries. Strict products liability is imposed only on the provider of products as opposed to one primarily performing a service.
PRODUCTS LIABILITY AND ACTUAL AND PROXIMATE CAUSE
To hold a commercial supplier strictly liable for a product defect, the product must reach the consumer in the same condition in which it is supplied.
PRODUCTS LIABILITY AND ASSUMPTION OF RISK AND MISUSE
A plaintiff who voluntarily and unreasonably encounters a known danger has assumed the risk and cannot recover on a strict liability claim. The plaintiff's use of the product for certain purposes or in a manner not reasonably foreseen by the manufacturer is misuse and bars recovery on a strict liability claim. Keyword: Used as Intended.
PRODUCTS LIABILITY AND CONTRIBUTORY NEGLIGENCE
Contributory negligence is not applicable to strict liability because no duty rests upon the ultimate consumer or user to search for or guard against the possibility of product defects. See Assumption of Risk and Misuse.
PRODUCTS LIABILITY AND NEGLIGENCE ACTIONS
Commercial suppliers may be liable under a negligence theory for failure to exercise reasonable care in the inspection or sale of a product which causes harm or injury.
PRODUCTS LIABILITY THEORIES
The claims most commonly associated with product liability are intentional, negligence, strict liability, breach of implied warranties, and representation theories.
PRODUCTS LIABILITY TYPES OF DEFECTS
A products liability claim usually falls into one of three possible types: those claiming a design defect, those claiming a manufacturing defect, or those claiming a failure to warn.
STATE OF THE ART DEFENSE
In any product liability action a defendant may use as an affirmative defense that the product's design, manufacturing, testing, and labeling, while defective, conformed to the state of the art at the time the product was first sold by the defendant.
ARIZONA DOG BITE STATUTE
In Arizona the owner of a dog which bites a person even on the property of the owner, is liable for damages suffered by the person bitten, regardless of the former viciousness of the dog or the owner's knowledge of its viciousness. Provocation by the victim is a defense.
VICIOUS WATCHDOGS
A landowner who protects his property from intruders by keeping a vicious watchdog that he knows is likely to cause serious bodily harm may be liable even to trespassers for injuries caused by the animal.
ZOOKEEPERS EXCEPTION
An exception to the rule attaching strict liability when the victim came onto the land as an invitee or licensee. If the landowner is under a public duty to keep animals, negligence must be shown.
FALSE LIGHT
The widespread dissemination of information that is in some way inaccurate and that would be objectionable to the average person.
SLANDER AND LIABLE
When defamation is spoken is it slander and the plaintiff must prove special damages (i.e. monetary loss). When the defamation is written it is libel and the jury may presume damages.
SLANDER PER SE
Damages are presumed when one makes statements that improve ones trade or profession at the expense of another, one accuses another of committing a crime or of having a loathsome disease or when one imputes unchastity to a woman.
PERSONAL INJURIES CAUSED BY ANIMALS
The owner of a wild animal is strictly liable for personal injuries, as long as the person injured did nothing voluntarily or consciously to bring about the injury. Owners of domestic animals that cause personal injury are not strictly liable unless they had knowledge of the animal's dangerous propensities.
ARIZONA STATE AND LOCAL GOVERNMENTAL IMMUNITY
The doctrine of state and local governmental tort immunity has been abolished in Arizona. A government entity may be liable for the gross negligence of its law enforcement and criminal justice personnel in their official duties. Ordinary negligence is not actionable.
DISCRETIONARY VS MINISTERIAL ACTS
The Federal Government has not waived immunity for acts characterized as discretionary. Discretionary acts occur at the planning or decision making level. Ministerial acts are performed at the operational level.
DUTIES OWED BY A BAILEE
Where the bailment is for the sole benefit of the bailor only slight diligence is required. Where the sole benefit is for the bailee, great diligence is required and, liability will result from slight negligence.
DUTY TO MITIGATE DAMAGES
Damage in negligence cases are an essential element. Actual harm or injury must be proven.
EXPRESS WARRANTY
If a seller makes a representation of fact which is the basis of the bargain and that fact is false, the seller has breached an express warranty and will be held liable.
FEDERAL GOVERNMENT IMMUNITY
Immunity still attaches for (1) assault, (2) battery, (3) false imprisonment, (4) malicious prosecution, (5) abuse of process, (6) libel and slander, (7) misrepresentation and deceit, (3) interference with contract rights
FEDERAL TORT CLAIMS ACT AND LIMITED GOVERNMENTAL IMMUNITY
By virtue of the Federal Tort Claims Act the United States has waived immunity for most tortuous acts and may now be held liable to the same extent as an individual. Most states have waived immunity as well.
FRAUD
A person commits the tort of fraud by intentionally making an affirmative misrepresentation to induce justifiable reliance that damages another.
GOVERNMENTAL FUNCTIONS VS PROPRIETARY FUNCTIONS
Functions that are traditionally done by the government and can only be done adequately by the government are governmental. Functions could be provided by a private corporation are proprietary and not granted immunity.
IMMUNITY OF PUBLIC OFFICIALS
Public officials carrying out official duties are immune from tort liability for discretionary acts done without malice or improper purpose. In Arizona, government contract emergency health care providers are immune from liability for negligent acts but not for gross negligence or intentional misconduct.
IMPLIED AND EXPRESS ASSUMPTION OF RISK
If an average person would clearly appreciate the risk, the assumption will be implied.Assumption of risk may be assumed by an express agreement.
INDEMNITY
Indemnification is forbidden in Arizona in comparative fault situations The doctrine applies only where: (1) the party seeking indemnity is not at fault at all; or (2) if he was at fault, his causative contribution ended so that he is held liable only because of the continuing conduct of the indemnitor; or (3) where he is liable only because the law imposes liability upon him for the torts of the indemnitor.
INTRA-FAMILY TORT IMMUNITY
In Arizona a spouse may recover for negligent or intentional interference with a spouse's consortium. Physical injury is not required; psychological harm to the spouse can be the basis for an interference with consortium claim. Arizona allows a parent to sue for the loss of a child's consortium.
LIABILITY IMPUTED ON PARENTS
In Arizona acts of "malicious or willful misconduct or a minor" shall be imputed to parents in the amount of not more than $10,000.
LIABILITY OF PARTNERS AND JOINT VENTURERS
Generally each member of a partnership or joint venture is vicariously liable for the tortuous conduct of another committed in the scope and course of affairs of the partnership or venture. In Arizona five specific elements must be present to establish a joint venture: (1) a contract, (2) a common purpose, (3) a community of interest, (4) an equal right to control, (50) participation in both profits and losses.
MALICIOUS PROSECUTION
The plaintiff must show the absence of probable cause for the prior proceeding by showing either that the defendant did not actually believe the plaintiff to be guilty or that the defendant's belief was objectively unreasonable.
NON-RECOVERABLE DAMAGES
Damages are not reduced or mitigated by reason of benefits received by the plaintiff from other sources and may not be introduced as evidence.
NUISANCE PER SE
Nuisances are generally intentional interferences because the defendant has been made aware. If strict liability is the basis for redressing a nuisance refer to it as nuisance per se.
PARTIAL COMPARATIVE NEGLIGENCE
In a partial comparative negligence state a plaintiff may only recover if her negligence was less serious or no more serious than that of the defendant. MBE only. Not applicable In Arizona
PERSONS PROTECTED UNDER STRICT LIABILITY FOR ANIMALS
Strict liability for injuries inflicted by wild animals or abnormally dangerous animals will usually be imposed when the victim came onto the land as an invitee or licensee. Trespassers must prove negligence.
PRIVATE NUISANCE
A private nuisance is a substantial, unreasonable interference with another private individuals use or enjoyment of property that he actually possess or has right of immediate possession. For a nuisance based on intent or negligence the interference must be unreasonable.
RIGHT TO RECOVER DAMAGES FOR TORTS
In Arizona the right to recover damages for torts is constitutionally guaranteed and cannot be limited by statute.
SUBSTANTIAL INTERFERENCE
A substantial Interference is that which is offensive, inconvenient, or annoying to an average person in the community. A plaintiff's hypersensitivities or specialized use of the property will not be taken into account.
SURVIVAL OF TORT ACTIONS
Once an action has been instituted, it is not abated by the death of the plaintiff, the defendant, or both; the personal representative of the decedent is substituted as a party. Cases involving intangible personal interests generally do not survive. Damages for pain and suffering of the deceased will not be awarded.
TORTUOUS INTERFERENCE WITH FAMILY RELATIONS
Arizona has abolished intra-family tort immunity meaning that one member of the family unit may sue another. Arizona has also abolished parent-child immunity.
UNREASONABLE INTERFERENCE
To be characterized as unreasonable, the severity of the inflicted injury must outweigh the utility of the conduct.
WRONGFUL DEATH
Wrongful death actions are lawsuits brought by the decedent's beneficiaries for their own loss of support and companionship. Wrongful death actions are still subect to any defense.