Defenses to Intentional Torts

Consent, generally

A plaintiff’s consent to the defendant’s conduct is a defense, but the majority view is that one cannot consent to a criminal act. For any consent fact pattern, examine whether (1) there was valid consent; and (2) the defendant stayed within the scope of consent.

Consent Capacity

Individuals without capacity are deemed incapable of consenting. Persons with limited capacity can consent but only to things within their limited scope of understanding.

Express Consent

A defendant is not liable if the plaintiff expressly consents to the defendants conduct except: (1) mistake will undo express consent if the defendant knew of and took advantage of the mistake; (2) consent induced by fraud will be invalidated if the fraud goes to an essential matter; and (3) consent obtained by duress will be invalidated unless the duress is only threats of future action or future economic deprivation

Implied Consent

Apparent consent is that which a reasonable person would infer from custom or usage or from plaintiff’s conduct. Consent implied by law arises when action is necessary to save a person’s life or some other important interest in person or property

Exceeding Consent

A defendant may be liable if they exceed the scope of consent by committing a more intrusive invasion or invading a different interest than the one the plaintiff referenced.

Protective Privileges, Generally

When examining protective privileges, consider the following: (1) is the privilege available? These privileges apply only for preventing the commission of a tort; (2) is a mistake permissible as to whether the tort being defended against is actually being committed; and (3) was a proper amount of force used?

Self-Defense generally

When a person reasonably believes that he is being or is about to be attacked, he may use such force reasonably necessary to protect against injury

Availability of Self-Defense

The majority rule is that there is no duty to retreat, but the modern trend imposes a duty to retreat before using deadly force is retreat can be done safely, except if the actor is in their home (castle doctrine). Self-defense is not available to an initial aggressor unless the other party responds to nondeadly force with deadly force. Self-defense may extend to third-party injuries, but an actor might be liable if they deliberately injured a third party

Mistake and Self Defense

A reasonable mistake as to the existence of danger is permitted

Self-defense level of force:

one may only use force that reasonably appears necessary to prevent the harm. If more force than is reasonably necessary is used, the defense is lost.

Defense of Others

One may use force to defend another when they reasonably belief that the other person could have used force to defend themselves

Defense of Property, generally

One may use reasonable force to prevent the commission of a tort against their real or personal property, but a request to desist or leave must be made first unless doing so would clearly be futile or dangerous. The defense is not available once the tort has been committed.

Defense of Property Hot Pursuit

One may use force in hot pursuit of another who has tortiously dispossessed the owner of their chattels because the tort is ongoing if the defendant is in the act of fleeing.

Defense of Property and Privilege

Defense of property is not a defense when used against someone with privilege.

Defense of Property and Mistake

A reasonable mistake is allowed as to whether an intrusion has occurred or whether a request to desist is required. A mistake is not allowed as to whether the entrant has a privilege that supersedes the defense of property right, unless the entrant conducts entry so as to lead the defendant to reasonably believe that entry is not privileged.

Defense of Property level of force

Reasonable force may be used, but one may not use force causing death or GBI unless the invasion of property also entails a serious threat of bodily harm (such as castle doctrine). This means defense of property does not extent to setting traps to protect property

Shopkeeper’s Privilege:

A shopkeeper has a privilege to detain a suspected shoplifter for investigation under the following conditions: (1) there must be a reasonable belief as to the act of theft (inferred if the thief has the property); (2) the detention must be conducted in a reasonable manner and only with nondeadly force; and (3) the detention must be only for a reasonable period of time and only for the purpose of making an investigation

Reentry Onto Land

At common law, one could use force to reenter land only when an intruder came into possession tortiously. Under modern law, procedures such as ejectment exist and self-help is no longer allowed.

Recapture of Chattels

When another’s possession began lawfully, one may only use peaceful means to recover the chattel. Reasonable force may be used to recapture a chattel only when in hot pursuit of one who has obtained possession wrongfully

Necessity, generally

A person may interfere with the real or personal property of another when: (1) it is reasonably and apparently necessary in an emergency to avoid injury from a natural or other force; and (2) the threatened injury is substantially more serious than the invasion that is undertaken to avert it.

Public necessity

A defendant can raise public necessity as a defense if they acted to avert an “imminent public disaster.”

Private Necessity

Private necessity can be a defense when the action was to prevent serious harm to a limited number of people. Under private necessity, the actor must pay for an injury they caused unless the act was to benefit the property owner.