Torts Intentional Torts / Defenses

Front 1

Defenses

Back 1

(1) Consent (2) PROTECTIVE PRIVILEGES: Self-defense, Defense of Others, Defense of Property, (3) Necessity, and (4) Recapture of Chattels.

Front 2

Defenses, CONSENT

Back 2

DEFENSE TO ALL INTENTIONAL TORTS—A defendant is not liable for an otherwise tortious act if plaintiff consented to the defendant’s act. Consent may be given expressly, or it may be implied from custom, conduct, or words, or by law.

Front 3

Defenses, CONSENT, Requirement

Back 3

(1) Legal Capacity--Only a P with legal capacity can give a valid consent. Children CAN consent to things that are age appropriate. (a sliding scale), (2) NOT given through fraud or duress

Front 4

Defenses, CONSENT, Implied consent

Back 4

(1) Customary practice/Custom (2) Body language consent

Front 5

Defenses, CONSENT, Implied consent, Customary practice/Custom

Back 5

P goes to a place or engages in activities where certain invasions are routine. (e.g. sitting in a barber chair, team sports)

Front 6

Defenses, CONSENT, Implied consent, Body language consent

Back 6

Defendant’s reasonable interpretation of P’s objective conduct and surrounding circumstances.

Front 7

Defenses, CONSENT, Scope

Back 7

If you exceed the scope of defense, you forfeit the defense. Scope is usual behavior under those circumstances.

Front 8

Defenses, PROTECTIVE PRIVILEGES

Back 8

Self-defense, Defense of Others, Defense of Property

Front 9

Defenses, PROTECTIVE PRIVILEGES

Back 9

THREE STEPS: (1) Proper Timing/Immediacy (2) Reasonable belief (3) Proportional force

Front 10

Defenses, PROTECTIVE PRIVILEGES, Proper Timing/Immediacy

Back 10

The threat must be in progress or imminent. CAN ONLY act to prevent the commission of a tort. CANNOT act after the act is over.

Front 11

Defenses, PROTECTIVE PRIVILEGES, Reasonable belief

Back 11

that the threat is genuine. (DO NOT need certainty) (1) The Shopkeepers privilege (NOT forfeited if the shoplifter turns out to be innocent) (2) Mistake OK—self-defense, defense of others, defense of property (EXCEPT no mistake allowed as the entrant’s privilege to enter (e.g. necessity).

Front 12

Defenses, PROTECTIVE PRIVILEGES, Proportional force

Back 12

to the threat. Deadly force is OK, UNLESS protecting property. Excessive force = a tort

Front 13

Defenses, PROTECTIVE PRIVILEGES, Self-defense

Back 13

When a person reasonably believes that she is being or is about to be attacked, she may use such force as is reasonably necessary to protect against injury.

Front 14

Defenses, PROTECTIVE PRIVILEGES, Defense of others

Back 14

Can use to defend another when the actor reasonably believes that the other person could have used force to defend himself.

Front 15

Defenses, PROTECTIVE PRIVILEGES, Defense of property

Back 15

Can use reasonable force to prevent the commission of a tort against her real or personal property. A request to stop or leave must first be made unless it clearly would be futile or dangerous. Defense not available against one w/ a privilege. (CANNOT use force that will cause death or serious bodily harm, e.g. traps, spring guns, or vicious dogs)

Front 16

Defenses, NECESSITY

Back 16

(Property)—A person may interfere w/ the real or personal prop of another when it is reasonably and apparently necessary to avoid threatened injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it.

Front 17

Defenses, NECESSITY, Public necessity

Back 17

ABSOLUTE defense. D commits a property tort in an emergency to protect the community as a whole a significant group of people.

Front 18

Defenses, NECESSITY, Private necessity

Back 18

LIMTED Defense. D commits a property tort in an emergency to protect a limited number of people. (His own interests, that of his family and/or one other person) (If protecting the landowner, then absolute defense!)

Front 19

Defenses, NECESSITY, Private necessity, Liability

Back 19

(1) D WILL be liable for compensatory damages., (2) D is NOT liable for nominal or punitive damages. (3) As long as the emergency persists, P must allow D to remain. P CANNOT defend his property.

Front 20

Defenses, Recapture of Chattels

Back 20

a defense to trespass; D may use peaceful means to recover possession of chattel taken unlawfully (AFTER making a timely demand for their return).

Front 21

Defenses, Hypersensitivity of a P

Back 21

Hypersensitivity of a P is NEVER taken into account in determining if P has satisfied an element of the claim. (Assume you are dealing with a person of ordinary sensitivity).

Front 22

Defenses, Incapacity

Back 22

No incapacity defenses—Every D is capable of committing an intentional tort if he does the elements.