Defenses to Intentional Torts Involving Personal Injury

Consent

—defendant not liable if plaintiff gave legally effective consent (i.e., actual, apparent, or presumed, or there was emergency)

1. Actual (express)—plaintiff is willing for conduct to occur; revoked by clear communication

2. Apparent—defendant reasonably believes plaintiff actually consents

3. Presumed (implied)—defendant is justified based on prevailing social norms, or defendant has no reason to believe plaintiff would not actually consent if defendant requested consent

4. Emergency—usually medical; purpose of conduct is to prevent or reduce risk to plaintiff’s life or health

• Third Restatement uses actual and presumed consent; Second Restatement uses express and implied consent

5. DE Point of Law—consent to participate in athletic and recreational activities is also called implied primary assumption of risk (A/R)

Self-defense

—defendant must reasonably believe force is (1) necessary and (2) proportionate to force plaintiff is intentionally inflicting

1. DE Point of Law—defendant must reasonably believe force is immediately necessary for protecting defendant against unlawful force; no need to retreat, surrender possession, do anything defendant has no legal duty to do, or abstain from any lawful act

2. Defensive purpose—defendant’s force must be defensive, but defense need not be defendant’s sole motive for force

Nondeadly force

—defendant reasonably believes that (1) plaintiff’s force is intentional and unprivileged, (2) defendant’s force is proportional, and (3) defendant can prevent plaintiff’s force or threat only by immediate force

• DE Point of Law—not justified to resist arrest defendant knows or should know is being made by peace officer

Deadly force

—defendant reasonably believes that (1) plaintiff’s force is intentional and unprivileged, (2) defendant is at risk of death, serious bodily harm, or rape, and (3) defendant can prevail only by immediate use of deadly force

• DE Point of Law—defendant reasonably believes force is necessary to protect against death, serious physical injury, kidnapping, or compelled sexual intercourse

No duty to retreat (majority)

—before using force, including deadly force, in defense

• DE Point of Law—deadly force not justified if it can be safely avoided; however, no duty to retreat if defendant is in his (1) own dwelling or (2) place of work (unless defendant was initial aggressor)

Withdrawal

—if plaintiff withdraws, defendant no longer has privilege to use force

Initial aggressors

—generally not entitled to claim self-defense

Not liable for injuries to bystanders

—defendant may use nondeadly force against bystander if (1) force plaintiff is using against defendant is substantially greater than force defendant uses against bystander and (2) defendant’s use of force against bystander is immediately necessary

Defense of third persons

1. Reasonable belief that defended party entitled to use force to defend self

2. Immediately necessary

Defense of property - Defendant privileged to act to prevent plaintiff’s imminent intrusion if:

• Plaintiff’s intrusion is not privileged

• Defendant reasonably believes plaintiff is intruding or about to intrude and defendant can prevent it by means used

• Defendant asks plaintiff to stop or request would be useless or dangerous

• Means used are reasonably proportionate to value of interest protecting and

• Means used are not intended to or likely to cause death or serious bodily injury.

• DE Distinction—defendant reasonably believes force is necessary to prevent criminal trespass, burglary, unlawful entry, theft, criminal mischief, or trespassory taking

• DE Distinction—defendant reasonably believes force is necessary to protect property and first asks the person to stop (unless doing so would be useless or dangerous)

No deadly force allowed—including deadly traps

• DE Distinction—deadly force allowed if (1) someone is dispossessing defendant of dwelling or (2) someone is committing arson, burglary, robbery, felonious theft or property destruction and (a) has used or threatened deadly force or (b) defendant reasonably believes nondeadly force would risk serious physical injury

No force allowed to reclaim real or personal property wrongfully taken

—must use legal action (e.g., eviction); personal property subject to fresh pursuit exception

Discipline or control of minor child

1. Parents—reasonable force or confinement ok considering child’s age and gravity of behavior; privilege may extend to one acting in loco parentis

2. Educators—reasonably force ok to maintain order and safety

Protect individuals from self-harm (mental impairment)

—defendant may use force against another if (1) defendant reasonably believes it necessary to protect that person from death or serious bodily harm and (2) that person does not understand nature or consequences of own actions

Privilege of arrest and other crime-related conduct - Private actor

- Felony arrest—ok if crime was actually committed and reasonable to suspect person arrested committed it

• Misdemeanor arrest—majority rule—only if committed in presence of arresting party and if breach of peace; Third Restatement—only if misdemeanor creates substantial risk of bodily harm and private actor reasonably believes police will not be able to prevent or terminate crime

• DE Point of Law—ok if offense committed in presence of arresting party or threatened breach of peace

• Assisting police—ok if private actor reasonably believes police need help and police conduct is or could be privileged

• Intervenor—force ok against intervenor intentionally impeding actor’s privilegedconduct or aiding arrestee to resist or escape

Law enforcement officials

Privileged to use force, threat, or confinement to (1) arrest, (2) investigate, terminate, or prevent crime, or (3) enforce law; off-duty officer is private actor

Use of force

—private actor or police can only use force if (1) reasonably necessary and proportionate (2) for legitimate purpose or, (3) in context of arrest, intent to arrest is communicated before force (unless communication would be useless)

• DE Point of Law—force not permitted unless defendant makes known purpose of arrest, reasonably believes it is otherwise known, or it cannot reasonably be made known and (1) arrest is pursuant to warrant or (2) reasonably believed to be lawful

• DE Point of Law—deadly force permitted if (1) other means exhausted, (2) crime or felony involving actual or threatened physical injury, (3) force creates no substantial risk to innocent persons, and (4) delay would create such risk or enable escape

Merchant’s privilege

—seller of goods and services privileged to use force to (1) investigate potential theft, (2) recapture personal property, or (3) facilitate arrest

1. Merchant must reasonably believe other has taken merchandise or failed to pay for purchase

2. Merchant’s use of force must be (1) on or immediately near merchant’s premises, (2) reasonable, and (3) of reasonable duration; deadly force not ok

3. DE Distinction—must have probable cause to believe suspected shoplifter has intentionally concealed or shoplifted merchandise; defendant must be 18 years or older and detention must be (1) for summoning law enforcement and (2) conducted reasonably on premises