Defenses to Intentional Torts: Consent, Self-Defense, and Defense of Others

Defenses to Intentional Torts

These defenses can be raised by a defendant to avoid liability for an intentional tort. We'll cover:

  • Consent
  • Self-Defense
  • Defense of Others

These defenses are applicable to other intentional torts, like battery.

Two types:

  • Actual (Express) Consent
  • Implied Consent

Actual (Express) Consent

Exists when the plaintiff expressly shows a willingness to submit to the defendant's conduct.

  • Defendant can only do what was consented to.
  • Example: Priya tells Danny to try and take her cell phone to practice self-defense. If Danny does so, and Priya gets hurt, Danny has a defense of express consent as long as he didn't go beyond the scope of the consent.
  • Going beyond consent: Anything a reasonable person would think is beyond the consent given (e.g., Priya didn't consent to being hit with a club).
Limitations on Consent

  • Consent is invalid if induced by fraud.

    • Example: Priya implies she's a beginner but is actually a mixed martial arts champion. Danny's consent might not be valid because it was based on Priya's misrepresentation of her skill level.

  • Fraud negates consent only if the fraud goes to an essential matter; if it involves a collateral matter, the consent remains effective.

    • Example: If Priya uses a prop phone instead of a real phone, that is a collateral matter.

  • A person must have the capacity to consent.

    • Incompetent individuals, drunken persons, and very young children cannot consent to tortious conduct.

  • Generally, a person cannot consent to a criminal act.

    • Modern trend: Consent is valid as long as the criminal act doesn't breach the peace.
    • Example 1: Prostitution (illegal in most states) - under the strict view, consent is invalid because the act is criminal, and touching constitutes battery. Under the modern view, no battery is committed because there's no breach of peace.
    • Example 2: Street fight (e.g., West Side Story) - consent is invalid because it's illegal and breaches the peace.

Implied Consent

Two sub-flavors:

  • Apparent Consent
  • Consent Implied by Law
Apparent Consent

Consent a reasonable person would assume was given by the plaintiff's conduct.

  • Example: Priya and Danny are playing a game of two hand touch football. By playing, Danny implicitly consents to being touched, as long as the touching isn't beyond what is expected in the game.
Consent Implied by Law

Consent implied by law if harmful or offensive touching is needed to save a person's life.

  • Example: Danny, a paramedic, performs the Heimlich maneuver on a choking woman. Even if she's embarrassed, he has a defense of consent implied by law.

Self-Defense

If a person has reasonable grounds to believe they are being or are about to be attacked, they may use such force as is reasonably necessary for protection against the potential injury.

  • The actor need only have a reasonable belief as to the other party's actions; certainty is not required.
  • Example: Priya sees a man pull out a gun (which is actually a cigarette lighter) and points it at her. She kicks him and breaks his arm. She has a defense of self-defense, because it appeared that the man was pointing a gun.

Rules for Self-Defense

  • Only enough force to prevent the perceived harm may be used.

  • Deadly force may be used only if it's reasonable to believe there is danger of serious injury or death.

  • Example: If Danny is about to be slapped, he can use force to prevent the slap (punch or push), but can't use deadly force (knife).

  • No duty to retreat (stand your ground), even if deadly force is necessary but there is a growing trend that requires a person to retreat before using deadly force unless they are in their own home.

  • Retaliation is not allowed.

    • Example: If Danny successfully deflects the slap, he can't then start beating on the counterprotester in retaliation.

  • If Danny is the initial aggressor, he generally cannot use force to defend himself.

    • Exception: If Danny brings a knife to a fist fight, the counterprotester may now use deadly force to repel Danny's attack.

  • If Danny accidentally injures someone else while defending himself, he still has the defense of self-defense.

    • Example: Danny tries to kick the counterprotester but misses and hits an innocent bystander.

Defense of Others

If a person reasonably believes that the person being aided would have the right of self-defense, the defense of defense of others is available.

  • Even if the person aided has no defense (e.g., if he were the initial aggressor), his defender is not liable so long as the defender reasonably believed that the person aided could have used force to protect himself.
  • Example: Dudley tackles Danny to prevent him from taking Priya's cell phone. Dudley has a defense of others available if he reasonably believed Danny was committing battery even if Priya and Danny were just joking.