Torts - Defenses To Intentional Torts

Front 1

Lack of Consent

Back 1

- part of P’s prima facie case

- p must plead and prove it

Front 2

Express Consent

Back 2

- valid defense when OBJECTIVELY manifested, through words or gestures.

- an express agreement, written or oral, to have your interest invaded.

Front 3

Implied in Fact Consent

Back 3

- when, under the circumstances, the conduct of the individual REASONABLY conveys consent.

- when, under plaintiff manifests consent by his actions even though not expressly saying so.

Front 4

RST Consent

Back 4

(1) willingness IN FACT for conduct to occur. - may be manifested by actions or inaction and need not be communicated to the actor.

Front 5

Common Usage

Back 5

Consent can be implied from common usage

- if revoked from common usage, should post or communicate a reasonable amount so that all who commonly use, will know consent is revoked.

Front 6

When Consent Granted BUT is NOT Effective

Back 6

- conduct exceeds the scope of the consent

- the person is incapable from giving consent

- the consent is obtained by fraud

- the consent is obtained by duress

- public policy prevents the person from consenting

Front 7

Duress renders Consent Inneffective

Back 7

When forms of duress that are quite drastic in their nature and that clearly and immediately amount to an overpowering of the will. (RTS)

(Cannot consent to assisted suicide)

Front 8

Self Defense

Back 8

-REASONABLE FORCE can be used where one REASONABLY BELIEVES that such force is necessary to protect oneself from immediate harm.

- the defendant must sincerely believe the force is necessary for protection, but in addition must act reasonably.

- limited to protecting oneself from the immediate threat of harm.

- words, threats are not enough, must be in response to imminent bodily harm.

Front 9

Mistake of Fact, Self Defense

Back 9

Law allows a reasonable mistake of fact to excuse liability from using self-defensive force

Front 10

Mistake of Fact, Self Defense

Back 10

Law allows a reasonable mistake of fact to excuse liability from using self-defensive force

Front 11

Defense of Others

Back 11

- an actor who comes to the defense of another person from an intentional tort is privileged

- allows only REASONABLE force to repel the invasion

Front 12

Mistake of Fact, Defense of Others

Back 12

Still be privileged on a reasonable mistake of fact

Front 13

Mistake of Fact, Defense of Others

Back 13

Still be privileged on a reasonable mistake of fact

Front 14

Defense of Property

Back 14

The use of any force at all will be unreasonable unless the intruder has FIRST been ASKED to desist. Blows are not justified where it is not clear that words alone would not be enough.

Front 15

Reasonable Force in Defense of Property

Back 15

- threatening the use of deadly force may well be reasonable, though the actual use of such force would not be reasonable

- the use of DEADLY force to protect is NEVER reasonable; the bodily safety of humans is given a higher place in the social policy scale than the economic value of property

Front 16

Exception in Force of Defense of Property

Back 16

- can use deadly force to prevent “the commission or consummation of the FELONY...involving the breaking and entry of a DWELLING house. “

Front 17

Mistake of Fact, Defense of Property

Back 17

- a mistake of using force against a person privileged to intrude is not a defense

- “the defendant acts at his peril in the sense that an erroneous belief, however reasonable, that the intruder did not have a privilege will not justify the use of force against the intruder,

- unless, perchance, the intruder intentionally or negligently caused the defendant to believe that he is privileged.

Front 18

Defense of Property, Mechanical Devices

Back 18

- non deadly force device must be necessary, reasonable, and known

- known = by custom or efforts to make known its presence

- the owner is not allowed to use a mechanical device to cause greater injury to an intruder than the owner would be allowed to inflict personally

Front 19

Recapture of Chattel Elements (6)

Back 19

1-possession was TORTIOUSLY taken from D without right or by force or fraud

2-D is entitled to IMMEDIATE possession of the chattel

3-D acts PROMPTLY after dispossession or discovery

4-D DEMANDS return of the chattel, unless demand would be useless or dangerous

5-any force used by D against the other person is to capture the chattel

6-any force is REASONABLE and short of deadly force

Front 20

Mistake of Fact, Recapture if Chattel

Back 20

The owner’s mistaken belief that the privilege exists will not be a defense unless the other person knowingly created the mistake.

Front 21

Public Necessity

Back 21

-where the danger affects the entire community, or so many people that the public interés is involved, that interest serves as a complete justification to the defendant who acts to avert the peril to all.

-so long as the emergency is great enough, and he has acted reasonably under the circumstances.

Front 22

Private Necessity

Back 22

-the actor can save her own person or property at the expense of another.

-the actor must pay damages for injury caused by exercise of the privilege.

Front 23

General Justification

Back 23

-courts allow a privilege when one is not already defined, needs to be reasonable under the circumstances, preventing social justice.