II. Defenses to Intentional Torts
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Consent may be given expressly; it may also be implied from custom, conduct, or words, or by law.
If consent is given by mistake, it is still a good defense unless defendant caused the mistake or knows of it and takes advantage.
If the consent is induced by fraud, it is not a good defense. However, the fraud must go to an essential matter.
Consent obtained by duress is not a defense. But threats of future action do not constitute legal duress sufficient to invalidate express consent.
Apparant consent is that which a reasonable person would infer from plaintiff's conduct. May be inferred as a matter of usage or custom.
Consent may be implied by law where action is necessary to save a person's life or some other important interest in person or property.
CONSENT: CAPACITY REQUIRED
Incompetents, drunken persons, and very young children are deemed incapable of consent to tortious conduct. Consent of parent or guardian is necessary to constitute a defense.
When a person has reasonable grounds to believe that he is being, or is about to be, attacked, he may use such force as is reasonably necessary for protection against the potential injury.
Reasonable mistake as to the danger does not vitiate the defense.
Majority says no duty to retreat. Minority says must retreat if possible unless in own home.
Initial aggressor not privileged to use self-defense.
May use only that force that reasonably appears to be necessary to prevent the harm.
If more force than necessary is used, then actor loses privilege of self-defense.
IN DEFENSE OF OTHERS
The actor need only have a reasonable belief that the person being aided would have the right of self-defense. May use as much force as if he was defending himself.
DEFENSE OF PROPERTY
Generally, one may use reasonable force to protect her property.
A request to desist must precede the use of force, unless it is clearly futile or dangerous.
Defense is still good where there is a mistake as to whether there has been an intrusion or request to desist is required. Defense fails where there is a mistake as to whether the enrant has a privilege to enter the property, unless the entrant intentionally or negligently caused the mistake.
May not use force to recapture property once tort is complete, except for hot pursuit exception because tort is seen as not being completed.
One may use reasonable force but not force that would cause serious bodily injury or death.
REENTRY ONTO LAND
There are summary procedures for recovering possession of real property. Hence, resort to self-help is no longer allowed and owner using force to retake possession will be liable for whatever injury she causes.
RECAPTURE OF CHATTELS
A demand to return the chattel must precede use of force, unless futile or dangerous.
Where another's possession began lawfully, only peaceful means may be used.
Force may be used only in hot pursuit of one who has obtained possession wrongfully (theft).
If the chattels have come to rest in innocent hands, this will cut off the actor's privilege to use force to effect recapture.
ENTRY UPON LAND TO REMOVE CHATTEL
Where chattels are located on the land of the wrongdoer, the owner is privileged to enter upon the land and reclaim them at a reasonable time and in a reasonable manner. A demand for the chattels is required first.
Where chattels are located on property of innocent party, owner is privileged to enter at a reasonable time and in a peaceful manner when the landowner has been given notice of the presense of the chattel but has refused to return it. Chattel owner will be liable for any actual damage caused by entry.
No entry allowed to romove chattels that are on the land by fault of the chattel owner.
PRIVILEGE OF ARREST
The privilege of making an arrest allows the arresting party to enter onto land to affectuate the arrest.
One who makes an arrest under the mistaken belief that it is privileged may be held liable for false imprisonment.
Where the act is for the public good (ie, shooting rabid dog) the defense is absolute.
Where the act is solely to benefit a limited number of people, the defense is qualified, ie, the actor must pay for any injury he causes. However, defense is absolute if it is to benefit owner of the land.
Parent or teacher may use reasonable force in disciplining children, taking into account the child's age and gender and the seriousness of the behavior.
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