Module 5

Question 0

What is consent?

Answer 0

When the victim gives permission to something that would otherwise be tortious (must be objectively manifested). Ie) if Andy says yes to Bob’s request to come on to Andy’s land even though and he secretly means no, Bob has the defense of consent to trespass (because Bob is relying on objective manifestations of consent )

Question 1

What are the defenses to intentional torts?

Answer 1

A) consent
B) self-defense
C) defense of others
D) defense and recovery of property
E) necessity

Question 2

What are the two main types of consent?

Answer 2

Express or implied

Question 3

What are the four types of consent?

Answer 3

• Express, implied, pictorial gestures, by law

Question 4

If a person has reason to know that another person is consenting to something outwardly but doesn’t really agree, does that knowledge negate consent?

Answer 4

Yes

Question 5

What is express consent?

Answer 5

Expressed in words

Question 6

What is implied consent?

Answer 6

Under the circumstances, the conduct of the plaintiffs reasonably conveys consent (objective standard)

Question 7

What is implied by law consent?

Answer 7

When the law provides consent to serve a utilitarian purpose of presuming what most in society would want. Ie) consent to emergency medical attention if you’re unconscious (can be negated by wearing a bracelet)

Question 8

What does consent implied by custom mean?

Answer 8

Consent can be implied from community custom if the person doesn’t say otherwise. Ie) if people in the community always walk on your property to knock on your door and you don’t put up a sign, then the absence of a contrary expression shows your consent

Question 9

What are the ways to invalidate consent?

Answer 9

• incapacity
• action beyond the scope of consent
• fraud
• duress
• illegality

Question 10

How does incapacity invalidate consent ?

Answer 10

Express or implied manifestations can be held invalid if the person lacks capacity to consent ie) is a child, teenager, insane person, handicapped person, drunk person, high person
*** if you don’t know the person is incapacitated and there’s no reasonable way to know, it doesn’t invalidate a defense of consent

Question 11

How does action beyond scope of consent invalidate consent?

Answer 11

If you agree to play football, that doesn’t mean you consent to being bitten, because such conduct is not accepted in the rules or the custom of the game… So that is action beyond scope of consent

Question 12

How does fraud invalidate consent?

Answer 12

If someone fraudulently misrepresents an essential aspect of the interaction it is invalidated. If the fraud is about a collateral matter that does not negate consent

Question 13

How can duress negate consent?

Answer 13

If the consent is gotten under physical threat it becomes invalid

• ** economic pressure does not negate consent
• ** sometimes situational duress 10 negate consent

Question 14

How does illegality negate consent?

Answer 14

A) majority rule: a person cannot consent to a criminal act… so a tort claim can proceed
B) minority view: a person can consent to criminal acts (plaintiff’s consent bars the tort claim)

Question 15

What is self-defense?

Answer 15

A defense which can justify and negate liability. Reasonable force can be used where you reasonably believe it is necessary to protect yourself from immediate harm. This is both subjective (defendant must sincerely believe the force is necessary) and objective (must act reasonably)

Question 16

What are the necessary elements of self-defense?

Answer 16

Immediate: must be in response to an immediate threat of harm

Reasonable: the victim sincere belief that self-defense is necessary must be reasonable, although it doesn’t have to be correct

Question 17

What is the rule for preemptive strikes in self-defense?

Answer 17

They are not justified, you can’t hurt someone because you anticipate an attack.

Question 18

How has contemporary law modified the immediacy requirement in self-defense?

Answer 18

Changed it to present occasion

Question 19

What is the rule for retaliation in self-defense?

Answer 19

Retaliation is not permitted. The cessation of hostility must be conveyed to the other person, otherwise the other person may have a justified self-defense claim if you didn’t know

Question 20

When can you use deadly or serious bodily injury force?

Answer 20

When you believe you will suffer the same level from your attacker. If the force you foresee is nonserious you cannot use deadly force even if that is the only way to stop the other person

Question 21

What are the rules about obligation to retreat in self-defense?

Answer 21

A) majority rule: there’s no obligation to retreat from force that doesn’t threaten deadly or serious harm.
B) minority rule: requires retreat and serious or deadly force would otherwise need to be used. You don’t have to retreat from your own home unless the attacker lives there. You also don’t have to retreat if you can’t do it safely. This view prefers the victim suffers some loss of personal rights rather than allowed that the or serious force to be used if a safe avoidance is possible

Question 22

What is defense of others?

Answer 22

A person can use reasonable force to protect the third-party from immediate physical harm. Doesn’t have to be family, but you can only use force if that other person was privileged to use force. Defense of others is available if the defendant made a reasonable mistake as to the need to intervene or defend the third-party

Question 23

What are the rules for defense and recovery of property?

Answer 23

You are privileged to use reasonable amount of force to prevent a tort against your real personal property. Reasonable mistakes will not excuse you. Deadly force is never permissible to protect property only

Question 24

Are you ever allowed to use deadly force to protect property?

Answer 24

No, it must always be reasonable force. If you fear that you will be attacked, then you're justified in using deadly force, but never if you were just protecting your property

Question 25

If you push someone off your property when asking them to leave would have worked is that okay?

Answer 25

No, even slight force is unreasonable in defense of property if it is excessive

Question 26

What are the rules for defending your home?

Answer 26

You can use deadly force if an intruder threatens your safety

Question 27

What are the rules about mechanical devices in self-defense?

Answer 27

Devices meant to inflict serious harm to protect property are not allowed because they are too hazardous to the innocent and don't provide proper warning. Barbed wire and other deterrents are fine because they are not meant to inflict deadly harm

Question 28

What are the rules for recovering personal property?

Answer 28

You can use reasonable force to recover property when you're in hot pursuit of the wrongdoer, because if you wait for the police to arrive, your item will be extremely hard to recover. You do so at your peril though, because mistake is not an excuse

Question 29

What is merchant's privilege/shopkeepers privilege?

Answer 29

Stores can use reasonable force to detain possible shoplifters (for a reasonable time) as long as they are within or near the immediate parameters of the store. Reasonable mistake is allowed as long as the store acts reasonably. One may detain someone for a reasonable time to conduct a reasonable investigation where there is a reasonable suspicion the person has shoplifted

Question 30

What is necessity?

Answer 30

You are allowed to interfere with the property interests of an innocent party in order to avoid a greater injury. The defendant is justified in her behavior because the action minimized the overall loss

Question 31

What are the two types of necessity?

Answer 31

A) public necessity | B) private necessity

Question 32

What is public necessity?

Answer 32

When the defendant appropriates or injures a private property interest to protect the community, is a complete defense. Ie) blowing out the person's home to save the city

Question 33

What is a complete defense?

Answer 33

The defendant isn't liable for anything

Question 34

What is an incomplete defense?

Answer 34

Defendant's B is privileged but he is still liable for damage

Question 35

What is private necessity?

Answer 35

When the defendant appropriates or injures a private property interest to protect a private interest valued greater than the appropriated/injured property, it is an incomplete defense Ie) mooring your boat to a dock during a storm

Question 36

What is intentional injury/killing?

Answer 36

Extremely rarely the courts will say that if you have to sacrifice one life to save many, that should be done (using a fair lottery). Ie) throwing a crewmember out of the lifeboat so everyone else can survive

Question 37

What are affirmative defenses?

Answer 37

When the defendant has the burden of pleading and proving the defense. They do not usually challenge the plaintiffs, fasciate case, rather, they supply a legal reason or justification for the defendants actions that render those actions non-tortious

Question 38

What are the three sets of privileges?

Answer 38

A. Ones that justify the defendants conduct as a response to the apparent misconduct of the paint B. Consent C. Privileges of public or private necessity (based on policy rather than the plaintiffs conduct)

Question 39

Parents and teachers generally enjoy a privilege to what?

Answer 39

Discipline (use of force or confinement). They may use reasonable force as a reasonably believe necessary

Question 40

A surgeon that operates without explicit consent commits what?

Answer 40

Battery

Question 41

How could you be charged with fraud in addition to a battery?

Answer 41

If you intentionally conceal facts (ie: plaintiff had genital herpes and concealed it from his girlfriend, who also got the venereal disease - was liable for both fraud and battery

Question 42

How can consent be revoked?

Answer 42

At any time by communicating it to the other person

Question 43

What is the video lecture's definition of self-defense?

Answer 43

The defendant will not be liable for intentional torts that he commits if he acts in self-defense. The defendant honestly and reasonably believed the force he used was necessary to prevent imminent proportionate force to him - defendant doesn't have to be right, he just has to be reasonable. He must use proportionate force