Defenses to Intentional Torts Flashcards Preview

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Flashcards in Defenses to Intentional Torts Deck (19)
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Definition of express consent

If P expressly consents to an intentional interference with his person or property, D will not be liable for that interference


Definition of implied consent

Existence of consent may also be implied from P's conduct, from custom, or from the circumstances


Implied consent and objective manifestation

It is the objective manifestations by P that count - if it reasonably seemed to one in D's position that P consented, consent exists regardless of P's subjective state of mind (Vaccine and Ship example!)


Implied consent and lack of capacity

Consent will be invalidated if P is incapable of giving that consent, because she is a child, intoxicated, unconscious, etc


Consent and exceeding scope

Even if P does consent to an invasion of her interests, D will not be privileged if he goes substantially beyond the scope of that consent


Consent as a matter of law

Even if P is incapable of truly giving consent, consent will be implied "as a matter of law" if these factors exist:

1 - P is unable to give consent
2 - immediate action is necessary to save P's life or health
3 - there is no indication that P would not consent if able
4 - a reasonable person would consent in the circumstances


What are the defenses for intentional torts?

Consent - Implied and Express
Self Defense
Defense of Others
Defense of Property
Recovery of Property
Necessity - Public and Private
Authority of Law (police officers)
Discipline (parents, teachers, military officer)
Justification - catch all defense


What is fresh pursuit?

pursue someone after they've stolen something from you. Must be immediate (within half an hour)


Rule statement for public necessity

interference with the land or chattels of another is necessary, or reasonably appears necessary, to prevent a disaster to the community or to a substantial number of people.


Rule statement for private necessity

If an individual must injure someone else's property in order to prevent injury to their own property

D is responsible for property damages (limited privilege)


Rule statement for defense of property

a property owner may use only as much force as appears necessary to protect the property


When will a police officer be liable for an intentional tort ?

Even under authority of law, police officer will be liable if:

1 - Mistaken identity - even if the warrant is completely correct, the officer will be liable if he reasonably but mistakenly arrests X when the warrant is for Y
2 - Excessive Force - police officer is liable if he uses excessive force, even if he has a valid warrant
3 - Court lacks jurisdiction - police officer is liable if the court that issued the arrest warrant lacks jurisdiction to do so, even if he follows proper procedure


Elements of informed consent for medical malpractice

1 - D physician failed to inform him adequately of a material risk before securing his consent to the proposed treatment
2 - If he had been informed of the risks he would have not consented to the treatment
3 - the adverse consequences that were not made known did in fact occur and he was injured as a result of submitting to the treatment


Can hospitals be sued under informed consent medical malpractice?

The hospital does not have a duty to obtain consent, the doctor does (NO)


Rule Statement for Defense of Person

A proper defense of person occurs when the actor uses equal force toward the aggressor


What to analyze in Defense of Person

duty to retreat, no excessive force, retaliation not vlaid, reasonable mistake authorized, threat must be imminent


Rule Statement for Consent

Consent can either be express or implied by word or action; implied by fact with objective manifestation that D reasonably believes is consent, or by custom or usage via participation in a sport; or implied by law in an emergency situation


Rule Statement for when Consent is invalidated

Consent can be invalidated by a criminal act, fraud, duress, incapacity, or the scope of consent


Rule statement for private necessity

A defense of private necessity to a claim of trespass to land may apply when an actor can prove it was reasonably necessary to enter the land to prevent serious harm to the actor, his chattels, or a third party