Glossary of Torts I - Defenses to Intentional Torts
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- What are Affirmative defenses?
- Affirmative Defenses
A. By asserting an affirmative defense, a defendant argues that, even if the plaintiff proves all the elements of a cause of action, the defendant is not liable.
B. A defendant asserts an affirmative defense not to deny the plaintiff's claims, but to establish a reason why the plaintiff should not recover.
C. The defendant must specifically raise affirmative defenses.
D. The defendant has the burden of proving affirmative defenses.
E. Some affirmative defenses are based on the plaintiff's conduct or consent, and some are based on public policy reasons.
- What defenses are available to Protect Against the Plaintiff's Misconduct in an Intentional Tort Cause of Action?
Defenses to False imprisonment,the "storekeeper" defense and Police officers are privileged to make an arrest based on an apparently authorized warrant or probable cause
Defense of Property
Public or Private Necessity
- Define Self Defense..
- Self-defense is the use of reasonable force to defend against harmful or offensive bodily contact and against confinement.
To prove self-defense, a defendant must prove that he used only that force that was reasonably necessary to prevent the harm. Liability attaches when the force is excessive.
- When may one use deadly force in self defense?
- One may use deadly force only to defend against deadly force, unless in one's own dwelling. Restatement Second of Torts _65
- Must one attempt retreat before using self defense?
- Before using self-defense, the defendant is not required to retreat. However, some states require an attempt to retreat before using deadly force.
- May one use self defense in response to verbal attacks?
- A physical attack by the plaintiff must be reasonably apparent; provocation or insults are not sufficient.
- Self defense is an affirmative defense to what tort(s)
- Self-defense is an affirmative defense to battery and false imprisonment
- Is one liable for committing battery in defense of another?
- Defending Others
1. A person may commit a battery to defend third parties.
2. Under old law, one was privileged only to defend family and servants. However, now, one may defend any third party.
3. One may defend others on the same bases that one can defend oneself. (See II.A, above.)
- What defense is there to false imprisonment?
- A defendant storekeeper sued for false imprisonment may be able to invoke the "storekeeper" defense.
a. Under common law, a storekeeper may detain a customer only to recover stolen property, but not just to investigate the facts. Great Atlantic & Pacific Tea Co. v. Paul.
b. Under the Restatement (Second) of Torts _120, a storekeeper may detain a customer for the time necessary to reasonably investigate the facts.
- Can Police Officers be liable for false imprisonment?
- Police officers are privileged to make an arrest based on an apparently authorized warrant or probable cause.
a. In other words, even if the arrestee is falsely imprisoned, the police officers are not liable for false imprisonment.
b. Private citizens have the same privilege, but are liable if they are mistaken about the actual existence of a crime.
- May a property owner use force to defend property?
- A property owner may use a certain amount of force to defend property. The appropriate use of force is a defense to battery.
- May a homeowner use spring guns to defend property?
- Spring guns
a. Under the common law, a homeowner may not set up a spring gun to defend a home. Katko v. Briney.
b. However, under Restatement _85, a homeowner may use a spring gun, but only when the homeowner could have used such force in person.
- May a landowner lawfully use deadly force to prevent a trespass?
- A landowner may not use force calculated to cause death or serious bodily injury to prevent a trespass or an unlawful act not amounting to a felony. Brown v. Martinez.
- How much force is lawful to recover property once it is lost?
- Once possession of property is lost, the owner may not use force to repossess it. For example, a car owner may not use force to recapture a car a week after it was stolen.
- Can parents be liable for battery when disciplining their chidren?
- Parents and teachers are protected against a claim for battery for disciplining children. The extent of this privilege is not well defined.
2. Restatement _147 provides that parents may use that force which they reasonably believe to be necessary.
- Is kissing a stranger a priviledged act negating liability?
- General observations
1. Many common law privileges, such as self-defense, are analyzed in terms of reasonableness and degree.
2. However, certain actions are considered per se offensive, such as kissing a stranger or touching someone in a private place, and are never privileged.
- May one who consents to certain conduct sue for the damages incurred by that conduct?
- A person who consents to the conduct of another that is intended to invade his interest cannot recover for the tortious conduct or the resulting harm. Restatement of Torts (Second) _892A. For example, if a plaintiff consented to be touched, the plaintiff cannot maintain a cause of action for battery.
- What does capacity have to do with consent?
- In order for the plaintiff's consent to constitute a defense for the defendant, the plaintiff must have the capacity to consent, e.g., not be incompetent or a minor.
- When would an adult not have capacity?
- An adult's incapacity renders her consent ineffective only if it substantially impairs her capacity to understand and weigh the harm and risks of harm against the benefits flowing from the proposed conduct. Reavis v. Slominski.
- Must a defendant have knowled of plaintiff's incapacity?
- A plaintiff's incapacity renders her consent ineffective only if the defendant had knowledge of the incapacity. Reavis v. Slominski
- What role does the relationship between the parties play in consent?
- The parties' relationship is important. For example, an employee who is dependent on an employer for a job, wage increase, or promotion might not be freely consenting to a sexual act with the employer.
- How far can a defendants action go once plaintiff has consented?
- The defendant's action may not exceed the consent the plaintiff gave.
1. For example, if a patient consents to an operation on condition that any blood transfusions be from family-donated blood, and the doctor gives her a transfusion of other blood, the patient could state a claim for battery. Ashcraft v. King.
2. However, a surgeon may extend the scope of an operation to remedy any abnormal condition in the area of the original incision, based on the surgeon's professional judgment. Kennedy v. Parrott.
a. This rule applies if a patient is unable to give consent and no one with authority to consent is available.
b. Substituted consent applies when consent by someone else with authority, such as a relative or guardian, may be substituted for the patient's consent.
- What Competence is required to consent to medical procedures?
- Competence to consent or refuse to consent to a medical procedure is measured by the patient's ability to understand the condition and the nature and effect of the proposed treatment. Miller v. Rhode Island Hospital.
- When may minors consent to medical procedures?
a. Minors may consent to major surgery only if the need is urgent.
b. Minors may consent to abortions. Planned Parenthood of Southeastern Pa. v. Casey.
c. Minors may not consent to sexual conduct.
- What is the effect to consenting to conduct that is a crime?
- Under the majority view, the consent is not effective if the conduct consented to is a crime, at least in battery cases. The minority and Restatement view is that consent to criminal conduct is valid unless in violation of a statute making conduct criminal to protect a class of persons irrespective of their consent.
- Does Consent based on mistake or ignorance still mean consent and thus relieve wrongdoer of liability?
- Some mistakes vitiate consent.
a. For example, one who knows he has a venereal disease and that his sexual partner does not know about it commits a battery by having sexual intercourse. His partner is deemed not to have consented to the act. Doe v. Johnson.
2. Mistakes about collateral matters that are not related to the interests the tort protects do not nullify the consent.
a. For example, a man who obtains consent to sexual intercourse by promising a woman $100, but knowingly pays her with a counterfeit bill, is not guilty of battery. Although the woman did not consent to being paid with counterfeit money, she consented to the "touching," i.e., the interest that the tort of battery protects. Desnick v. American Broadcasting Companies, Inc.
- When are privileges based on something other than plaintiff's conduct?
- A. Some privileges are based on public policy rather than on the plaintiff's conduct.
B. Police are privileged to trespass to execute search warrants.
C. The public has certain privileges that under other circumstances would constitute trespass.
1. Under common law, a user of a public utility or a common carrier is privileged to enter appropriate portions of the premises. See Restatement (Second) of Torts _191.
2. Under public accommodations laws, places open to the public may not discriminate based on race or gender. 42 U.S.C.A. _2000a.
3. One is privileged to enter another's land to reclaim one's own goods.
4. Some law supports a privilege to enter shopping malls and campaign there. Robins v. Pruneyard Shopping Center.
- What is the public necessity doctrine?
- Under the public necessity doctrine, a defendant who damages or destroys another's property in the reasonable belief that by doing so he can avoid or minimize an imminent public disaster is protected against all liability. Surocco v. Geary.
- Under the U.S. Constitution's "taking clause are cities liable for damages caused by police?
- Under the U.S. Constitution's "takings" clause, a city may be required to compensate a homeowner whose property is damaged by police while apprehending a suspect, despite a public necessity. Wegner v. Milwaukee Mutual Ins. Co.
a. However, in some jurisdictions, cities are liable to property owners only in connection with public improvements. See Customer Company v. City of Sacramento.
- What is the private necessity doctrine?
- Under the private necessity doctrine, a defendant who damages, enters, or destroys another's property in the reasonable belief that by doing so he can avoid or minimize imminent harm against himself or others is protected against liability for trespass. Ploof v. Putnam.
2. However, a defendant is still liable for any actual harm caused, despite the necessity. Vincent v. Lake Erie Transportation Co.
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