Defenses to Intentional Torts

Consent

1. Actual Consent

2. Presumed Consent (Implied)

Actual Consent (Express)

the plaintiff, by words or actions, manifests the willingness to consent to the defendant’s tortious intentional conduct.

o The defendant’s conduct may not exceed the scope of the consent.

o Consent by mistake—a valid defense unless the defendant caused the mistake or knew of it and took advantage of it

o Consent by fraud—invalid if it goes to an essential matter.

• If the fraud only goes to a collateral matter, consent is still a valid defense.

Presumed Consent (Implied)

A defendant is not liable for otherwise tortious intentional conduct if:

  i) Under prevailing social norms, the defendant is justified in engaging in the conduct in the absence of the plaintiff's actual or apparent consent; and

  ii) The defendant has no reason to believe that the plaintiff would not have actually consented to the conduct if the defendant had requested the plaintiff's consent

o Emergencies—it is fair to assume that someone in need of rescuing would allow a rescuer to touch him absent explicit consent

o Injuries arising from athletic contests—consent within the scope of the sport

• A defendant could be liable if the conduct is reckless

o Mutual consent to combat

Capacity

Lack of capacity may undermine the validity of consent (e.g., youth, incompetency, intoxication).

Self-Defense

1. Use of Reasonable Force—force that is proportionate to defend against an offensive contact or bodily harm (i.e., not excessive)

• A person’s mistaken belief that he is in danger, so long as it is a reasonable mistake, does not invalidate the defense.

2. Duty to Retreat

o Traditionally, most courts required retreat before one could use deadly force.

o Most jurisdictions do not require retreat before using reasonable, proportionate force.

Note 2: These are called “stand your ground” laws.

3. Initial Aggressor—NOT permitted to claim self-defense unless the other party has responded to non-deadly force with deadly force

4. Injuries to Bystanders—A person acting in self-defense is not liable for injury to bystanders as long as the injury was accidental and the actor was not negligent toward the bystander.

Deadly Force

A defendant may use deadly force for the purpose of defending himself against the plaintiff only if the defendant reasonably believes that:

  i) The plaintiff is intentionally inflicting or about to intentionally inflict unprivileged force upon the defendant;

  ii) The defendant is thereby put in peril of either death, serious bodily harm, or rape by the use or threat of physical force or restraint; and

  iii) The defendant can safely prevent the peril only by the immediate use of deadly force.

Defense of Others

may use reasonable force in defense of others, if that person would be entitled to use self-defense

Defense of Property

1. Reasonable Force—may be used if the person reasonably necessary to prevent tortious harm to the property

2. Deadly Force—cannot be used in defense of property

believes it is

• A person may never use deadly mechanical devices to defend property (e.g., a spring gun).

3. Recapture of Chattels (Personal Property)

o Reasonable force may be used to reclaim personal property that has been wrongfully taken, but only if you first request its return, unless that would be futile.

o If the original taking was lawful (like a bailment) then only peaceful means may be used.

4. Force to Regain Possession of Land

o Common law—reasonable force permitted

o Modern rule—use of force is no longer permitted; only legal process

Parental Discipline

parents may use reasonable force as necessary to discipline children.

Privilege of Arrest

1. Private Citizen

o Permitted to use reasonable force to make an arrest in the case of a 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.

o Under the Third Restatement:

• It is not a defense to make a reasonable mistake as to the identity of the felon.

• It is not a defense to make a mistake as to whether the felony was actually

  committed.

2. Police

o Must reasonably believe that a felony has been committed and that the person arrested

committed it.

o An officer who makes a mistake as to whether a felony has been committed is not subject to tort liability.