Privileges - Defenses to Int. Torts Flashcards
(21 cards)
What is consent?
Defense to intentional harm based on P’s voluntary exposure to D’s contact
What are the two types of consent?
- Express consent:
P expressly consented to intentional interference of his person/property - Implied consent:
P’s conduct, custom, or circumstance implied P’s consent of intentional interference of his person/property
What is consent as a “matter of law”?
Even if P is unable to give consent, it will be implied if:
- immediate action is need to save P’s life
- there’s no indication that P would not consent if able
- a reasonable person would consent
Scope of consent
Even if P consents to invasion of his interests, D will not be privileged if he goes beyond the scope of consent
What is self defense?
Privilege to use “reasonable force” against threatened harm, in which D “reasonably believes” there is one
D may NOT use self defense to:
- Retaliate
- Avoid harm that is not imminent
- Respond to verbal provocation
For self defense, what is “reasonable force”?
Only the degree necessary to prevent threatened harm.
- can’t use deadly force unless one is in danger of serious bodily harm or death
What is defense of others?
Privilege to use reasonable force to defend another person against attack
* same rules as for self defense
What is defense of property?
Privilege to use reasonable force to defend one’s property (land and chattel)
What action is first required for defense of property?
Owner must (1) give warning and (2) give sufficient time for intruder to obey request *unless it appears that immediate violence or harm will happen
Can you use mechanical device to defend property?
Depends on state law!
May use only if person would be privileged to use similar degree of force if he was present and acting himself
What is recovery of property?
Privilege to use reasonable force to take back possession of chattel taken from him/her
When is recovery of property a proper defense?
Must meet three criteria:
- Property was wrongfully taken
- Fresh pursuit
- Reasonable force to take back
* Many courts allow merchants to temporarily detain assumed shoplifter for 10-15 min
Necessity
Privilege to P’s property interest where it is necessary to prevent great harm to D/D’s property or to 3rd persons/their property
What are the two types of necessity?
- Public necessity
- D does not have to compensate damages - Private necessity
- If there are actual damages, D must compensate damages
What is authority of law?
Privilege for authorities of law (police) to use reasonable force make arrest
*A private citizen has a privilege legal authority only if a felony was in fact committed (no room for reasonable mistake!)
For authority of law, what are the two types of arrest?
- Arrest with warrant
- Arrest w/out warrant
Police may do:
- Felony or breach of peace in police’s presence
- Past felony (police believes happened and has right person)
- Prevention of felony
What is discipline?
Privilege of person whose status/job allows him to use reasonable force to use discipline in certain situations
What are the common relationships for privilege of discipline?
- Parent-child
- Teacher-student
- Military officer-subordinate
What factors are considered to determine whether degree of force is reasonable for discipline?
- Severity of misconduct
- Age, gender, strength, etc. of person being disciplined
- Motive of discipliner
What is justification?
“Catch-all” term privilege (if D’s conduct doesn’t fit in one of the narrower defenses) that there are good reasons D should be exculpated from liability of intentional tort
