Chapter 3 (Themis)

What are the Defenses to Intentional Torts for the Defendant?

• Consent

• Capacity

• Self-Dense

• Defense of Others

• Defense or Property

• Parental Discipline

• Privilege of Arrest

Consent defense

Actual Consent - P uses words of action manifesting the willingness to submit to defendant’s conduct. Consent by mistake is valid unless D caused the mistake. Consent by fraud is invalid if it revolves around the essential matter

Presumed Consent - P is silent. Emergencies, injuries arising from sports, mutual consent to combat (wrestling)

Self Defense

Force must proportionate to defend against in offensive contact or bodily harm.

Most courts require the duty to retreat before one could use deadly force. Most jurisdictions do not require retreat before using reasonable, proportionate force

Defense of Others

If you help someone and they are entitled to use self-defense, then you may use reasonable force to help them.

Defense of Property

Reasonable force may be used if the reasonably believes it is necessary to prevent tortious harm to the property. Deadly force cannot be used.

Recapture of Chattels

Reasonable force may be used to reclaim personal property that has been wrongfully taken but only if you request for it back first, unless that would be futile

• If the original taking was lawful, then you could you request for it back in a peaceful manner

Privilege of arrest

Reasonable force if permitted to make an arrest in the case of felony if:

• the felony has actually been committed; and

• The arresting party has reasonable grounds to suspect that the person being arrested has committed the felony.

You can not make a mistake on the identity of the felon and you cannot make a mistake on whether the felony was actually committed

What if an office makes a mistake as to whether a felony has been committed?

If an officer makes a mistake as to whether a felony has been committed, then the officer will not be subject to tort liability