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Torts > Defenses to Intentional Torts > Flashcards

Defenses to Intentional Torts Flashcards

1
Q

What are the defensea to Intentional Torts?

A
  1. Consent
  2. Self Defense
  3. Self Defense of Others
  4. Defense of Property
  5. Recapture of Chattels
  6. Reentry onto Land
  7. Necessity
  8. Shopkeepers Privilege
  9. Privilege of Arrest
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2
Q

What is the impact of Consent on Intentional Torts ?

A

Defense to Every Intentional Tort

  • Can be express or Implied
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3
Q

When does express consent Exist?

A

Clearly & unmistakably stated (spoken or written)

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4
Q

When is Consent Lost?

A

When conduct reasonably exceeds the scope of the consent

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5
Q

When is express consent invalid?

A

Exp. Consent invalid if:

  • Fraud - fraud related to essential matters only ➞ Doesn’t apply to collateral matters
  • Duress - unless only future threats or future econ. deprivation
  • Mistake - Only if ▵ knew of ∏’s mistake and took advantage of the mistake
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6
Q

When does Implied Consent exist?

A

Plaintiff’s consent is implied when he is silent in a situation where a reasonable person would object to the Defendant’s actions

  • Emergency Situations
  • Athletic Evients
  • Mutual Consent to Combat
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7
Q

What is the Legal Capacity Required for Valid Consent

A

Consent is not a defense if P is incapable of consenting

  • Chiild
  • Intoxication
  • Unconscious
  • Insane
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8
Q

What are the elements to the self-defense defense for intentional torts ?

A
  1. D subjectiely believes that she used reas. force to prevent P from engaging in an imminent & unpriv. attack
  2. D responds with proportional force during the threat (can’t be after threat is over)
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9
Q

Is there a duty to retreat b/f using self defense ?

A

Courts are split on whether & when ▵ has a duty to retreat b/f using force

  • Restatement Views
    • Non-Deadly Force - No Duty to Retreat
    • Deadly Force - Duty to retreat unless the attack takes place inside the ▵s dwelling by a pers. who does not also live there
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10
Q

Self Defense - What degree of force may one use ?

A

▵ can only use amount of force req. to prevent the impending harm

  • Using more then nec. will subj. ▵ to liab. for damages caused by the excessive force
  • Non-Deadly Force - use anytime vic. reas. believes that force will be used against her
  • Deadly Force - Vic. can use deadly force if she is not at fault, confronted w. unlawful force & reas. believes that she is facing imm. threat of death or serious bodily harm
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11
Q

Self Defense - Accidental Third Party Injuries

A

Defense extends to accidental third party injuries caused while the ▵ was defending herself

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12
Q

What is the defense of others defense?

A

Requires Reas. Belief

  • Even if 3d P didn’t have legal right to use force in her own def.,
  • ▵ who came to aid of that pers. may still assert self def. of others
  • if ▵ honestly & reas. believed that the other pers. had the right to use force in her own defense

Reasonable Mistake OK - Reas. mistake as to the threat of force will not prevent use of the def.

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13
Q

What degree of force may be used for the defense of self defense of others?

A

Alter Ego Theory - ▵ can use same degree of force she would be permitted to use if the tort was directed at her (steps into the shoes of the 3d party)

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14
Q

What is the defense of property defense of intentional torts?

A

A pers. can use reas. force to defend her prop (land and chattels)

Warning Required - owner of prop. must make verbal demand to leave

  • unless reas. appears the request will be futile or violence will occur immed.
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15
Q

When can deadly force be used to defend property?

A

Never - Deadly Force Prohibited

  • Exception - Imm. Threat of Death or Serious Bodily Harm (Case of Self Def.)
  • Deadly Mechanical Devices Prohibited - Owner can’t use deadly mech. device such as spring gun to protect her prop.
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16
Q

Defense of Property - Reasonable Mistake

A

Intrusion = YES - Reas. mist. is permitted as to whether a tort has actually occurred

Warning Required = YES - Reas. Mist. perm. as to whether a verbal demand was req.

Priv. = NO - Reas. Mist. not a defense if the intruder actually had a priv. to be on the ▵’s prop.

17
Q

What are the elements for the recapture of chattels defense ?

A

An owner of chattels has right to use reas. force (never deadly) to regain poss. of chattels

  • if the prop. owner is in “fresh pursuit” of one who has taken poss. of chattels wrongfully
    • Fresh Pursuit - Without unreasonable Delay
    • Timely Demand Required Unless Futile or dangerous
18
Q

To whom may reasonable force be used to recapture a chattel ?

A

Wrongdoer Only

  • Owner can only use force against the actual tortfeasor or
  • another party who is aware that the chattels were tortiously obtained (can’t use force against innocent party)
19
Q

What is the authority to discipline defense to intentional torts?

A

If defendant is charged with maintaining discipline (parent or Teacher)

  • D can use reas. force to discipline a child
20
Q

When does the defense of Necessity arise?

A

Defendant can injure plaintiff’s prop. if it is reas. nec to avoid the harm

  • b/c the harm caused is subst. greater than the harm avoided
21
Q

When does a public necessity arise?

A

The D is acting to protect the public from imminent severe harm

  • There is no liability of the D for any harm
  • No compensation must be paid
22
Q

When does private necessity arise?

A
  • arises when D commits an int. tort
  • and claims it is better to commit the int. act than suffer the harm they would have suffered

Owner can’t resist during emergency

  • BUT If there is harm caused - D liable for the harm that is caused
23
Q

What are the elements of the shopkeepers privilege?

A

Shopkeep can detain a suspected shoplifter on store prop.

  • in a reas. manner (no deadly force)
  • for reas. pd. of time
    • must be limited to short pd. of time (10-15 min) long enough to determine if suspect actually shoplifted
    • Police must be called or suspect released
  • if she has cause to reas. believe that the pers. detained in fact committed or attempted to commit theft of store prop.
24
Q

From what standpoint is the reasonableness of self-defense evaluated?

A

If a reas. pers. in the Ds circ. would have believed that he was under attack

25
Q

Which intentional torts require actual damage?

A
  1. Trespass to chattels
  2. Conversions
26
Q

When is re entry onto land applicable?

A

Common Law = YES - the prompt use of reas. force to regain entry onto prop. that owner was tortiously disposed

Modern Law = NO - Mod. statutes have created summary procedures to recovering poss. of real prop. so self-help is no longer avail

27
Q

What is the defense of Privilege of Arrest ?

With a Warrant

A

With Warrant

  • PO won’t be liab. for executing an arrest w. a warrant
  • that appears to have been correctly issued
  • even if it is later revealed that there was no prob. cause or procedure used to get war. was improper
28
Q

What is the defense of Privilege of Arrest ?

Without a Warrant - Felony Arrest by Police Officer

A

Requirement for Priv

  • PO can arrest suspect for felony w/out war.
  • if officer has reas. grounds to believe a felony has been committed
  • and that suspect committed the felony

Force Permitted

  • Reas. force nec. to make arrest (Deadly force if suspect poses serious threat)
29
Q

What is the defense of Privilege of Arrest ?

Without a Warrant - Felony Arrest by Private Citizen

A

Requirement for Priv.

  • can arrest suspect for felony w/out war.
  • if Felony has actually occurred
  • and citizen has reasonable grounds that suspect committed the felony

Force Permitted = Reas. force nec. to make arrest (Deadly force if suspect poses serious threat)

30
Q

What is the defense of Privilege of Arrest ?

Without a Warrant - Misdemeanor Arrest

A

PO or priv. cit. can arrest w/out war. for MD involving breach of the peace

  • that were committed in the arresting party’s presence

Force Permitted = Reas. force (no deadly force)

31
Q

Self-Defense - Initial Aggressor

A

Can’t claim self defense unless the other party has responded to nondeadly force with deadly force

Torts (18 decks)

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