Defenses (Privileges) to Intentional Torts

1
Defenses (Privileges) to Intentional Torts

• Self-defense
• Defense of third persons
• Arrest and detention (shopkeepers)
• Defense and recapture of property by other means

• Discipline
• Consent (in part, not a defense at all)
• Public necessity
• Private necessity

2
Self-Defense

• A person may use a reasonable amount of force to
  defend himself, where he reasonably believes that
  self-defense is necessary.

3
Defense of Third Persons

• You may defend a third person on the same basis
  as you defend yourself.
• Caveat Some courts say if you are mistaken
  about the need for defense, you lose the privilege

4
Arrest and Detention Shopkeepers Privilege to
Detain

• Restatement 120A D must prove
• (1) D reasonably believed that P had taken goods
  or services w/o paying, and
• (2) manner and duration of detention must be
  reasonable (necessary to conduct a reasonable
  investigation)

5
Defense and repossession of property
(non-shopkeepers)

• Defendant may use reasonable force to defend
  property, based on the reasonable belief that
  such force is needed.
• DOCTRINE OF ROUGH EQUIVALENCE

6
Discipline

• Certain people are given a right to discipline
  others
• D must reasonably believe discipline is
  necessary, and the manner of discipline must be
  reasonable

7
CONSENT

• To he who consents, no wrong is done.

8
C o n s e n t

• Two key issues
• Apparent existence of consent
• Apparent scope of consent

9
Battery and ConsentSingle and Dual Intent

• Prima facie case of battery
• Intent to touch
• 1a. Intent to harm or offend (DUAL INT.)
• 2. Touching/ contact
• 3. Resulting harm or offense

• What happens when the defendant argues that the
  plaintiff consented to an offensive touching?

10
C o n s e n t

• Two key issues
• Apparent existence of consent
• Apparent scope of consent

11
THE NECESSITY DEFENSE
12
N e c e s s i t y

• OR an unconstitutional taking?
• Takings analysis is an alternative to tort
  analysis, where D is the government. Government
  cannot take private property for public purposes
  without just compensation

• Public necessity
• Absolute privilege to inflict harm to
  plaintiffs property, if (1) D believed
  reasonably that harm was necessary to avert an
  imminent public disaster, and (2) manner and
  extent of harm were reasonable

13
Private NecessityA limited privilege

• Private necessity protects the defendant from
  liability for a technical trespass, i.e, one
  that causes no actual damage.

• But if damage occurs, the private necessity
  defense does NOT protect the defendant from being
  liable for paying for that damage.