Defenses to Intentional Torts Flashcards
(14 cards)
What is the defense of consent?
If P consents to D’s tortious conduct, D is not liable for that act. (A defense to ALL INTENTIONAL TORTS).
*note: the P has to have the capacity to consent; so drunks, mentally impaired, and young children are incapable of consenting to tortious conduct.
How may consent to tortious conduct be conveyed?
Expressly or impliedly.
Express consent is where P gives D verbal or written consent (nullified by duress, fraud, or mistake).
Implied consent is where D can reasonably infer P’s consent based on custom or P’s observable conduct (think football); the facts must indicate that based on P’s objective conduct, D was reasonable in interpreting P’s consent
*NOTE: D can be held liable for conduct exceeding the scope of P’s valid consent (express or implied).
What three elements are required for the defenses of self-defense, defense of others, and defense of property?
- Reasonable belief - D must reasonably believe a tort is being or about to be committed.
- Proper timing - tort must be in progress or imminent
- Reasonable force - must be proportionate to threat of harm (deadly force is allowed if D reasonably believes a life is in danger but is never permitted to protect property alone)
What are the elements specific to self-defense?
- the D has no duty to retreat
- reasonable mistake by D is allowed
- only available to initial aggressor if D responds to non-deadly force with deadly force
What are the elements specific to defense of others?
- the D steps into the shoes of the intended target
- force - can’t use greater force than the intended target could’ve reasonably used
- reasonable mistake by D is allowed
What are the elements specific to the defense of property?
- available to prevent tort against property
- unavailable if initial actor had a privilege to enter the land (i.e. recapturing chattel)
- reasonable mistake is ONLY ALLOWED as to whether an intrusion occurred, not whether privilege existed.
- D must request that interference stop before using force unless doing so would be futile or dangerous.
What is the defense of necessity?
A defense to torts against property (trespass to land, trespass to chattel, conversion) in which D damages P’s property in an effort to avoid greater danger.
What are the requirements of necessity?
- D’s interference with P’s property must be reasonably necessary to avoid an immediate threatened injury
- threatened injury must be more serious than the interference undertaken to avert it
What are the two kinds of necessity?
- Public necessity: absolute defense. D’s invasion of property must be reasonably necessary to protect community or large group of people; P cannot recover any damages.
- Private necessity: limited defense. D invades P’s property to protect an individual or a small group. P can recover actual damages but not punitive or nominal damages (unless D’s act benefitted P).
What is the defense of “recapture of chattels”?
A defense to trespass; D may use peaceful means to recover possession of chattel taken unlawfully.
What must a D-owner do in order to use the defense recapture of chattels?
He must make a timely demand for return of chattel (unless making demand would be futile or dangerous)
Who may a D-owner recapture chattel from?
The original wrongdoer or third person who knows the chattel was wrongfully obtained
When does a D-owner have a privilege to enter to recapture chattel?
- If the chattel is on the wrongdoer’s property, the D-owner may enter at a reasonable time to reclaim the chattel in a reasonable manner.
- If the chattel is on an innocent person’s property, notice is required first. If the landowner refuses entry, then D may enter at a reasonable time and peaceful manner. **NOTE: if chattel is on another’s property through D’s fault, D does not have a privilege to enter the property.
What force may be used to recapture chattel?
Reasonable force, but not deadly force or force sufficient to cause serious bodily harm.
