Defenses to Intentional Torts

Question 1

Consent

Answer 1

1. ✅ Consent
   ➤ Rule:
   If the plaintiff gave permission for the defendant’s conduct, the defendant is not liable — because the plaintiff agreed to the act.
   ➤ Two Types:
   * Express Consent: Plaintiff said “yes” clearly, either by words or writing.
   Ex: “You can punch me if I lose the bet.”
   * Implied Consent: Based on the situation or plaintiff’s actions.
   Ex: Joining a football game = implied consent to be tackled.
   ➤ When Consent Fails:
   * If the plaintiff is tricked or coerced into consenting, it doesn’t count.
   * No consent if plaintiff is a minor, intoxicated, mentally impaired.
   * If the defendant goes beyond what was agreed to, the defense fails.
   ➤ Bar Exam Trap:
   A patient consents to appendix surgery, but the doctor also removes her kidney “just in case.”
   ❌ Consent defense fails. She didn’t agree to that.

Question 2

Self-Defense

Answer 2

2. ✅ Self-Defense
   ➤ Rule:
   You can use reasonable force to protect yourself from an imminent (about to happen) threat of harm.
   ➤ What Makes It Valid:
   * The threat must be happening right now, not someday.
   * You must have a reasonable belief that you’re in danger.
   * Force used must be proportional to the threat.
   * Deadly force can only be used if you reasonably fear serious bodily harm or death.
   ➤ Duty to Retreat?
   * Most states say no duty to retreat, even if escape is possible.
   * Some states say you must retreat (if safely possible) before using deadly force — unless you’re in your own home.
   ➤ Bar Tip:
   Even if the defendant was wrong about the threat — if the belief was reasonable, the defense still works.
   ➤ MBE Example:
   A thinks B is pulling a gun, but B was just pulling out a phone. A punches B.
   ✅ Defense applies because A’s belief was reasonable, even if wrong.
   **

Question 3

Defense of Others

Answer 3

➤ Rule:
You can use reasonable force to defend another person if you reasonably believe they are in immediate danger.
* You don’t have to be right, only reasonable.
* You step into the shoes of the person being threatened.
➤ Bar Example:
You see a stranger being attacked and jump in to defend them, but later find out they were the aggressor.
✅ If you reasonably believed they needed help, defense applies.

Question 4

Defense of Property

Answer 4

➤ Rule:
You can use reasonable, non-deadly force to protect your land or possessions.
➤ Conditions:
* The intrusion or theft must be immediate or ongoing.
* You must first ask the person to stop or leave, unless it’s dangerous to do so.
* You cannot use deadly force to protect property only.
➤ Deadly Force = ❌
Even if someone is stealing your car or trespassing, you can’t shoot them.
➤ MBE Trap Example:
A sets up a spring gun trap in his shed to shoot trespassers.
❌ Not allowed. Mechanical traps using deadly force are never okay for just property.

Question 5

Recapture of Chattels (Recovering Your Stuff)

Answer 5

➤ Rule:
If someone wrongfully takes your personal property, you can use reasonable force to get it back — only if you act quickly.
➤ Conditions:
* You must be the true owner.
* You must act in a fresh pursuit — not days later.
* You must ask for it back first, unless it’s dangerous.
➤ Limitations:
* You cannot break into someone’s home to get it.
* No deadly force — even for valuable property.
➤ Example:
A steals B’s bike. B sees A riding it 5 minutes later and tackles him.
✅ Fresh pursuit + reasonable force = valid defense.

Question 6

Privilege of Arrest (Defense to False Imprisonment)

Answer 6

This applies when someone restrains or detains another person.
A. Private Citizens:
Can only arrest someone if:
1. A felony was actually committed, and
2. They have reasonable grounds to think this is the person.
❌ If no felony was committed, and you’re wrong = liable.
B. Police Officers:
Can arrest if:
* For a felony: officer reasonably believes it happened.
* For a misdemeanor: it must happen in front of them.
➤ MBE Trap:
A private security guard detains a customer for shoplifting, but the customer didn’t steal anything.
❌ If no crime occurred = liable.

Question 7

Necessity (Applies to Property Torts Only)

Answer 7

➤ Public Necessity:
* Defendant acts to protect the public or many people from disaster (e.g., fire, flood).
* Complete defense = No liability, even for damage.
Ex: Firefighter breaks into a building to stop a fire from spreading.
✅ No liability for property damage.
➤ Private Necessity:
* Defendant acts to protect themselves or a few people.
* Partial defense = Must pay for damage, but not liable for trespass.
Ex: A ties his boat to B’s dock during a storm. The dock is damaged.
✅ A is not a trespasser, but must pay for the damage.

8. ✅ Discipline
   ➤ Rule:
   Parents and teachers can use reasonable force to discipline children.
   * Must be proportionate and not abusive.
   * Based on age, behavior, and circumstances.
   ➤ MBE Trap:
   A teacher slaps a child for not paying attention.
   ❌ Likely not reasonable — slapping is excessive for that situation.