Torts 2 .txt
Card Set Information
Torts 2 .txt
Defenses Intentional Torts
Defenses to Intentional Torts
Consent: Express: Definition and Limitations
Acts as an affirmative defense to all intentional torts.
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
(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 torts
Focus on π's objective conduct—π's subjective mental reservations are irrelevant.
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
belief that threat is genuine
(3) Protective force is
to threat posed
Belief in genuineness
: Defense is not lost if ∆ makes a
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—
Prior to using deadly force, ∆ must attempt to retreat
(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
: ∆ invades π's property in an emergency to protect the community as a whole, or a significant group of people
: 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.
if ∆ acts to protect π's own property