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21 Cards in this Set
- Front
- Back
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Defense: Express Consent
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E1: words, spoken or written
E2: giving defendant permission to behave in the challenged fashion ***not effective if obtained through fraud or duress*** |
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Defense: Implied Consent
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1: implied through custom or common usage in that situation
OR 2: implied through reasonable interpretation of P’s objective conduct |
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Defense: Self Defense
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1: Timing--tort is in progress or imminent
2: reasonable belief of harm (reasonable mistake is ok) 3: proportionality (deadly force only if threat of death or serious bodily injury) |
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NYS Distinction: Self Defense and Deadly Force
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You must retreat if possible before resorting to deadly force.
Except: 1: in own home 2: police officer |
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Defense: Public Necessity
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ONLY a defense to property torts
1: interfere with property 2: in an emergency 3: to protect the community as a whole or a significant group of people. ABSOLUTE Defense--NO Liability. |
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Defense: Private Necessity
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ONLY a defense to property torts
1: interfere with property 2: in an emergency 3: to protect own interests MUST still pay for actual harm, but no nominal or punitive damages. |
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Defense: Defense of Property
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***NEVER with deadly force***
1: request to desist or leave if possible 2: Defense does not apply after tort is complete. - NO use of force to re-enter land. - MAY use force to recapture chattels in HOT PURSUIT. - MAY enter land to recover chattels unless they are there through owners fault. |
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Rule: Necessity and Shelter During Emergency
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As long as the emergency continues, defendant is allowed to remain on land in a position of safety.
Right to expel is suspended. |
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Defenses to Equitable Relief
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1: unclean hands
2: laches—delay may frustrate injunctive relief 3: first amendment may prohibit injunctions in speech cases |
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NYS Distinction: Defenses to Negligence
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NYS has abolished traditional contributory negligence and implied assumption of risk
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Rule: Comparative Negligence
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D offer’s evidence of P’s negligence; Jury assigns percentages.
Pure Comparative Negligence: (NYS and majority multistate): P always gets something Modified Comparative Negligence: (minority multistate if indicated): P fault of greater than 50% is an absolute bar to recovery |
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Rule: Assumption of Risk
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ABOLISHED IN NYS
Plaintiff may be denied recovery if she assumed he risk of any damage caused by D's act. Must have (a) known of the risk, and (b) voluntarily proceeded in the face of the risk NOT a defense to intentional torts. |
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Rule: Contributory Negligence
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ABOLISHED IN NYS
Completely barred P's right to recovery at common law. Last Clear Chance Exception: even if P was contributorily negligent, D had the last clear chance to avoid the harm. NOT a defense to intentional torts |
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Defenses: Nuissance
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1: legislative authority (e.g. zoning)--not absolute, but persuasive
2: conduct of others (multiple contributors) |
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Rule: Coming to the Nuissance
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NOT a bar, unless P came to the nuisance for the sole purpose of bringing a harassing lawsuit.
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Defenses available for INTENTIONAL products liability
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Defenses for intentional torts are available.
Negligence defenses are NOT. |
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Defenses available for NEGLIGENT products liability
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STANDARD Negligence Defenses
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Defenses available for STRICT LIABILITY products liability
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Ordinary CONTRIBUTORY negligence is NOT a defense for foreseeable use.
Assumption of the risk IS a defense. Comparative negligence IS a defense. |
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Defenses available for IMPLIED WARRANTY products liability
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Contributory negligence BEFORE discovering the fault is NOT a defense.
Contributory negligence AFTER discovering the fault IS a defense. (e.g. Assumption of the risk IS a defense) Comparative negligence IS a defense. MUST give notice with a REASONABLE time or defense |
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Defenses available for EXPRESS WARRANTY products liability
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Contributory negligence BEFORE discovering the fault is NOT a defense.
Contributory negligence AFTER discovering the fault IS a defense. (e.g. Assumption of the risk IS a defense) Comparative negligence IS a defense. MUST give notice with a REASONABLE time or defense |
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Defenses available for MISREPRESENTATION products liability
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Assumption of the risk is NOT a defense if relied on the misrepresentation.
contributory negligence: Strict Liaiblity: NOT a defense Negligence: IS a defense Intentional: NOT a defense |
