Torts: Defense To Intentional Torts

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Overview

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The defendant may defend by simply negating one of the elements of the tort. In other cases, however, the defendant takes the position that even if the prima facie elements of the tort are shown, she is not liable anyway, because of additional facts that allow her avoid liability. These additional facts are referred to as "affirmative defenses."

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****CONSENT****

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Consent is a defense to intentional tort liability. If the asserted victim gives permission, what would otherwise be tortuous conduct is instead privileged. Consent can be either express or implied.

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Implied Consent

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Consent is implied when, under the circumstances, the conduct of the individual reasonably conveys consent.

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Consent by Law

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Consent can be implied by law. Generally, courts recognize by law consent to emergency medical treatment by health professionals when a victim is unconscious and unable to provide consent.

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****SELF-DEFENSE****

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Self-defense constitutes a defense which can justify and therefore negate intentional tort liability. Reasonable force can be used where one reasonably believes that such force is necessary to protect oneself from immediate harm. The defense is both objective and subjective. The defendant must sincerely believe that such force is necessary for self-protection, but in addition must act reasonably. Sincere but unreasonable actions are not privileged.

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Self-Defense: Immediacy

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Self-defense must be in response to an immediate threat of harm. A preemptive strike is not justified.

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Death or Serious Bodily Injury

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Force intended to inflict death or serious bodily harm is only justified if the individual reasonably believes that he would suffer serious bodily injury or death from the attack. An individual cannot inflict death or serious bodily harm to prevent non-serious bodily injury even if that is the only way to prevent non-serious bodily injury.

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Self-Defense: Obligation to Retreat

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There is general agreement that there is no obligation to retreat from force not threatening death or serious bodily injury. There is disagreement over whether retreat is required where self-defense would require the use of force intended to inflict death or serious bodily injury. The majority position does not require retreat, whereas the minority position, endorsed by the Restatement, does require retreat where serious bodily injury or death would otherwise be required in self-defense. But the minority position does not require the victim to retreat from the victim's dwelling, unless the assailant also lives in the dwelling.

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****DEFENSE OF OTHERS****

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A person can use reasonable force to protect a third person from immediate, unlawful, physical harm. The prevailing rule does not limit the right of protection to family or household members. An individual can intervene on behalf of a stranger.

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Defense of Others: Limited Privilege Rule

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Some courts adhere to the rule that the privilege to use force in defense of a third person only exists when the person being defended was privileged to use force. But an increasing number of courts have concluded that there is a privilege to use reasonable force to protect a third party whenever the actor reasonably believes the third party is entitled to use self-defense.

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****DEFENSE OF PROPERTY****

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An individual is privileged to use reasonable force to prevent a tort against his real or personal property. However, unlike self-defense, a reasonable mistake will not excuse force that is directed against an innocent party.

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Defense of Property: Reasonable Force

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Only reasonable force can be exercised in protection of property. Force intended to inflict death or serious bodily injury is never reasonable to protect just mere property. If A’s only method of preventing B from stealing his money is to shoot B, A must refrain from exercising such force and allow the property to be stolen.

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Defense of Property: Force Against a Privileged Party

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A reasonable mistake that an individual is not privileged to intrude or use property is not an excuse, unless the victim intentionally or negligently causes the actor to believe the intrusion is unprivileged.

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Mechanical Devices

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The use of mechanical devices intended to inflict serious injury or death is not privileged unless such force would be justified if the owner of the device were inflicting the harm.

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****NECESSITY****

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Necessity is a defense which allows the defendant to interfere with the property interests of an innocent party in order to avoid a greater injury. The defendant is justified in his behavior because the action minimizes the overall loss. The defense is divided into two categories: public and private necessity.

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Private Necessity

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In private necessity, an individual has the privilege to interfere with the property right of another to avoid a greater harm, but must compensate the plaintiff for the interference. For this reason, it is known as a conditional privilege. Ploof v. Putnam.

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Public Necessity

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Public necessity allows the appropriation or injury of an innocent party’s property to avoid more substantial public harm. Unlike private necessity, there is no liability for inflicting private loss to protect the public. There is no clear line where the cumulative private interests to be saved reaches the level of a public need, but massive catastrophes, such as the historic San Francisco fire, obviously qualify.