Module 4 - Defenses to Intentional Torts

What is the general defense of consent in intentional torts?

The plaintiff's consent to the defendant's conduct is a defense, but the majority view is that one cannot consent to a criminal act.

What two questions arise in any consent fact pattern?

(1) Was there valid consent?(2) Did the defendant stay within the boundaries of the consent?

Who is incapable of giving valid consent?

Individuals without capacity, such as drunken persons and very young children, are incapable of giving valid consent.

What is express (actual) consent?

The defendant is not liable if the plaintiff expressly consents to the defendant's conduct, unless exceptions like mistake, fraud, or duress apply

What is implied consent?

Implied consent is inferred from a person's conduct, custom, or usage, such as normal body contact in sports or in emergency situations to save a life.

What happens if the defendant exceeds the scope of consent?

The defendant may be liable if they exceed the scope of consent by committing a more intrusive invasion than what was consented to.

When is self-defense available as a defense?

Self-defense is available when a person reasonably believes they are being or are about to be attacked and may use reasonable force to protect against injury.

What is the majority rule on the duty to retreat before using force in self-defense?

The majority rule is that there is no duty to retreat, but modern trends impose a duty to retreat before using deadly force unless in the actor's home.

Is a reasonable mistake allowed in self-defense?

Yes, a reasonable mistake as to the existence of danger is allowed.

How much force is permitted in self-defense?

Only the force that reasonably appears necessary to prevent the harm, including deadly force if appropriate. Excessive force negates the defense.

What is the defense of others?

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

When is the defense of property available?

Reasonable force may be used to prevent the commission of a tort against real or personal property, but deadly force is not allowed unless the invasion threatens bodily harm.

What is the "Shoplifting Detention" privilege?

A shopkeeper may detain a suspected shoplifter if there is a reasonable belief of theft, the detention is reasonable in manner, and only non-deadly force is used for a reasonable time.

What is public necessity in the context of intentional torts?

Public necessity is a defense when the defendant acts to avert an imminent public disaster.

What is private necessity?

Private necessity is a defense when the defendant acts to prevent serious harm to a limited number of people, but they must pay for any damages caused.