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21 Cards in this Set

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Total List of Affirmative Defenses to Intentional Torts
1. Consent
2. Self Defense
3. Defense of Others
4. Defense of Property (includes Shopkeeper's Priv)
5. Priv. of Arrest
6. Necessity
7. Discipline
The 4 most tested Affirmative Defenses to Intentional Torts
1. Consent
2. Self Defense
3. Defense of Others
4. Defense of Property (includes Shopkeeper's Priv)

NOTE: 2,3,4 > referred to as the "Protective Privileges." Group together b/c must consider same types of issues for each.
CONSENT as an affirmative defense to intentional torts [overview]
1. Did P have capacity to consent?

2. Was D's conduct within the scope of P's valid consent?

Note: There are 2 types of consent (1) Express and (2) Implied. The Consent argument will be different depending on which one you choose to argue.
Consent & Capacity.
Rule: The requirement of capacity differs from the rule for the INTENT element of intentional torts. For INTENT to commit the intentional tort, CAPACITY is no defense. So everyone is presumed to have capacity to COMMIT an intentional tort. However, not everyone is presumed to have the capacity to CONSENT to the tort. Therefore, D might argue that he is not liable b/c P consented to the tort. However, P should try to argue that P did not have capacity to consent to the tort thereby making the consent defense fail.
Express Consent
literally words spoken or written that give the D permission to behave in the challenged way.

Always a defense EXCEPT in cases of fraud or duress.
Jill consents to have sex with Jack. Jill gets an STD from Jack and Jack did not disclose he had an STD. Jill sue Jack for an intentional tort.

Q. Jack uses Kill's consent as an affirmative defense. Will he prevail?
No. Consent was not valid here b/c this is a case of fraud.
Implied Consent - 2 ways
1. Custom & usage
- if P participates in an activity where certain invasions are necessary, he’s deemed to consent to those invasions (e.g., whether the behavior is typical or customary)

2. D’s reasonable interpretation of P’s objective circumstances or conduct
- you never consider P's subjective thoughts. TIP: bar peeps will but them into the fact pattern to trip you up, but ignore them.
You are on the 6 train at rush hour and its packed tight. At the next stop the train makes a sharp turn and Stranger shoves into you.

You want to sue Stranger for Battery - should you do it?
No. You gave implied consent by riding a crowded subway at rush hour via "custom and usage." Everyone knows that on crowded subways people fall onto one another during sharp turns.
You consent to Dr. Jaffee for knee surgery. During surgery he decides to give you a nose job to boot.

You sue for battery - can Dr. Jaffee use consent as an affirmative defense?
No. This was beyond the scope of your consent.

RULE: consent requires (1) capacity for valid consent (2) actions within scope of the consent.
What are the Protective Privileges
1. Self Defense
2. Defense of Others
3. Defense of Property
What to consider for all Protective Privileges
1. D MUST show "proper timing" i.e. that the tort (threat D responds to) must be either in progress or imminent (no revenge - It is improper if the threat is over and done with)

2. D MUST show he had a reasonable belief that the tort (threat) was genuine.

(tip: this means if D makes an honest reasonable mistake, he can use self-defense)

3. If (1) and (2) are met > D can use necessary force, but no excessive force.

Rule: Force ok if proportional under the circumstances. Rule: If excessive, D liable for battery

Rule: deadly force only in life threatening situations, but never for defense of property. *NY is different than MBE on deadly force. There is a duty to retreat which is a minority view for MBE purposes. You must retreat before resorting to deadly force, but not if you are at home or cannot retreat safely or if you are a cop/assisting a cop.
NY distinction on Deadly Force (Protective Privileges)
Duty to Retreat (minority view for MBE purposes).

You must retreat before resorting to deadly force UNLESS you are at home or you cannot retreat safely or you are a cop/assisting a cop. But same rule as MBE that you cannot use deadly force to protect your property.
You are at home sleeping in an MBE jurisdiction. You wake up b/c your little sister is screaming. You run to her room and see someone has broken in and is trying to stab her to death. You sneak up behind the criminal, take the knife and stab criminal.
Criminal dies.

You call your law school friend for advice b/c you are worried about murder charges. Law friend tells you - you are going to jail b/c you cannot use deadly force to protect your property.

Q - Is law school friend correct?
No. Law school friend is prob. pulling Ds.

In this situation, you were NOT using deadly force to protect your property. You were using deadly force to protect another who was in real danger of being murdered. It's just tricky b/c this took place IN your home, but your actions were proper b/c you were protecting a person not property.

Tip: Many of the home defense cases are really self-defense of defense of others. Rule: deadly force can only be used when a person, not property, is threatened.

Note: If in NY, same result b/c you do not have a duty to retreat from your home.
Your life is being threatened by X. You see a way you can safely escape, but you use deadly force on X instead.

What result in MBE?
What result in NY?
MBE - you are ok b/c you can use deadly force in life threatening situtions.

NY - you had a duty to retreat. You weren't at home. You saw a safe way to retreat. You had to take it.
What is Necessity an affirmative defense to?
The 3 Property Torts (Trespass to Land, Trespass to Chattels, Conversion)
Public Necessity
(as an affirmative defense to Intentional Torts against Property)
D invades P’s property in an emergency to protect a significant group of people or the community as a whole; D must be acting as an altruist

Absolute defense, & D is immunized from all damage liability
Private Necessity
(as an affirmative defense to Intentional Torts against Property)
D invades P’s property in an emergency to protect an interest of his own (his own safety or property; Memory

Tip: D is acting selfishly > private necessity

-NOT absolute defense
-3 legal consequences attach (see next card)
3 Legal Consequences for D even when he uses Private Necessity as an affirmative defense.
(1) D remains liable to harm inflicted on property

(2)But D is NEVER liable for nominal or punitive damages

(3) As long as the emergency continues, D entitled to remain on P’s landing a position of safety
-P cannot expel of eject D b/c a private necessity D has “right of sanctuary”. (Tricky b/c normally P has a protective priv. to throw a trespasser off his land).

-If D leaves because of P and gets injured, then P must pay
D flying single engine plane sans passengers and needs to make an emergency landing. Only place to land is cornfield owned by P.

D lands and P sues. D claims emergency created Public Necessity. What result?
No passengers so interest is his and his alone, so no public necessity. It is private necessity only.

Judge says D determined his life worth more than P's corn so D has to pay for the damaged corn.

memory tip: private necessity is like a mini power of eminent domain from property – we have to compensate for what we take eventually.
D on a hike in a park. D gets chased by a Bull. Running from Bull, D enters a barn on P’s land. Once coast is clear, D leaves P’s land.

P sues D for Trespass.

What damages will P ask for in suit and what result?
He won't ask for classic damages b/c D didn't create any. However, he may try to get (1) Nominal or (2) Punitive, but P aint gettin' either b/c D can use Necessity as a defense.

RULE:
- Public Necessity > D pays no damages.

- Private Necessity > D pays only pays for actual harm to P's property (never punitive or nominal damages)
D on a hike in a park. D gets chased by a Bull. Running from Bull, D enters a barn on P’s land. P comes to barn w/ a gun and says "get out or I’ll shoot" while firing shots into the air. D runs out of the barn and gets attacked by the bull.

Does D have any cause of action?
Yes. D can sue P for battery. P caused harmful contact to the trespasser and trespasser had a right to stay on P’s land until the emergency was over (the right of sanctuary.

Comes from Ploof v. Putnam. In Ploof, family sailing and storm happens. They take refuge on a private island. Owner shoves family back into the ocean during storm. Family sues and wins.