Ch 2: Defenses to Intentional Torts Involving Personal Injury Flashcards
(22 cards)
What is the definition of consent in tort law?
A defendant is not liable for otherwise intentional tortious conduct if the plaintiff gave legally effective consent to that conduct.
What are the types of consent in tort law?
- Actual or express
- Apparent
- Presumed or implied
- Emergency doctrine
What is actual or express consent?
The plaintiff is willing for the conduct to occur, which may be express or inferred from the facts.
What is apparent consent?
The defendant reasonably believes that the plaintiff is willing for the conduct to occur.
What is presumed or implied consent?
The defendant’s conduct is justified based on prevailing social norms, with no reason to believe the plaintiff would not consent.
What is the emergency doctrine in terms of consent?
The defendant’s conduct is justified if they intend to prevent/reduce a risk to the plaintiff’s life or health under certain conditions.
What factors determine apparent or presumed consent in athletic activities?
- Violation of a safety rule
- Typical occurrence during the activity
- Significant risks of serious injury or death
What does the privilege of self-defense entail?
A defendant must reasonably believe that the force is necessary and proportionate to the unprivileged force the plaintiff is inflicting or about to inflict.
What happens if a defendant uses excessive force in self-defense?
The defendant remains liable for any harm attributable to the excessive force or all indivisible harm caused by both the privileged and excessive force.
What is required for the use of nondeadly force in self-defense?
- Reasonable belief of unprivileged force by the plaintiff
- Proportionate force used
- Immediate use of force is necessary
What conditions justify the use of deadly force in self-defense?
- Reasonable belief of imminent serious harm
- Immediate use of deadly force is necessary to prevent harm
True or False: There is a duty to retreat before using deadly force in self-defense.
False
What is the criteria for a defendant to use nondeadly force against a bystander?
- Plaintiff’s force is substantially greater
- Defendant’s force against the bystander is necessary to avoid the threat
What must a defendant believe to intervene in defense of a third person?
The third person is privileged to use force in self-defense and intervention is immediately necessary.
What is required for a defendant to act in defense of property?
- Intrusion is not privileged
- Reasonable belief of imminent intrusion
- Means used are proportionate and not likely to cause serious harm
What is the privilege to discipline or control a minor child?
Parents and those acting in loco parentis may use reasonable force or confinement based on the child’s age and behavior.
What are the conditions for a private actor to make a felony arrest?
- A felony has been committed
- Reasonable grounds to suspect the person being arrested committed it
- Under Third Restatement, belief that law enforcement cannot apprehend without immediate force
What must occur for a private actor to make a misdemeanor arrest under the majority rule?
The misdemeanor must happen in front of the private actor and be a breach of the peace.
What can law enforcement officials do during an arrest?
Use force, threat of force, or confinement to make an arrest, investigate or stop a crime.
What are the conditions for the use of force by private actors or law enforcement officials?
- Must be reasonably necessary
- Proportionate
- For a legitimate purpose
What is the merchant’s privilege?
A seller of goods may use force to investigate theft or recapture property if they reasonably believe theft has occurred.
What limitations are there on the use of force by merchants?
- Force must be used on or surrounding the merchant’s premises
- Must be reasonable in manner and duration
- Deadly force is not allowed
