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Consent: Express: Definition and Limitations
Acts as an affirmative defense to all intentional torts.
- Actions outside the scope of consent do not escape liability
- Fraud or duress negates express consent
- Must have legal capacity to consent
- Children, though lacking normal legal capacity, may consent to age-appropriate conduct
- (1) Customary practice (e.g., most doctor's visits), OR
- (2) ∆'s reasonable interpretation of π's objective conduct
- Successful implied consent is an affirmative defense to all intentional tortsFocus on π's objective conduct—π's subjective mental reservations are irrelevant.
- Actions outside the scope of the implied consent are still actionable.
Scope of Consent in Medical Procedures
If physician operates on you and expands that operation to a completely unrelated part of the body, that is a battery.
BUT Surgery of adjacent areas is generally within the scope of consent.
Types of Protective Privileges
- Defense of others
- Defense of Property
Protective Privileges : Requirements
- (1) Proper Timing: Threat must be in-progress or imminent—No revenge
- (2) Reasonable belief that threat is genuine
- (3) Protective force is proportional to threat posed
- Belief in genuineness: Defense is not lost if ∆ makes a reasonable mistake under the circumstances
- Amount of Force–Rule of Proportionality, Necessity and Symmetry–
- May use deadly force to fend-off other deadly force.
- Deadly force may be used to protect human life—never property.
- NY Distinctions Prior to using deadly force, ∆ must attempt to retreat unless:
- (1) Retreat would be dangerous or not feasible
- (2) ∆ is within his/her own home
- (3) ∆ is a cop or assisting a cop.
Necessity : Public Necessity
- When: ∆ invades π's property in an emergency to protect the community as a whole, or a significant group of people
- Absolute defense: No liability
Necessity : Private Necessity
: ∆ invades π's property in an emergency to protect ∆'s interests
- Liable for actual damages to π's property
- Not liable for nominal or punitive damages
- ∆ is allowed to remain on π's land in a position of safety for as long as an emergency continues. Otherwise, π is liable for a battery.
—There is no liability
if ∆ acts to protect π's own property