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- doctrines that allow a defendant to escape liability
- of an intentional tort
What are the 2 requirements for a privilege?
1. P must be able to state a claim for an intentional tort
2. D must have a privilege to shield them from liability
What types of consent are there?
Willingness for conduct to occur
I) Express (actual) consent- expressed affirmation/ willingness of a particular act
- overt (IE: oral permission, signing permission slip)
II) Implied consent- implied from conduct or actions
(custom, or words, or by law)
- (1) Use an objective approach-- “what a reasonable
- person would infer P’s conduct and circumstance as”. (IE:football=tackle)
- (2) Must be within reasonable bounds to consent;
- cannot exceed scope of consent
2 requirements for consent to be effective:
1. Consent given by one capable of consent or one empowered to consent on their behalf
2. D did not exceed scope of consent; consent is to a particular conduct
When is consent NOT effective... when is it terminated?
3 general rules
1. Conduct exceeds scope of consent
2. Withdrawal of consent is made
- 3. Consent induced by Fraud, Duress, or Lack of
- information of true character is invalid consent; no privilege is available
What's the general rule for prior course of conduct and consent?
- Prior Course of Conduct can be assumed consent if parties have previously been engaged in
- the behavior beforehand. (IE: rough house practical joking traditional)
- If P specifically withdraws from prior course of conduct and informs D
- of withdrawal, then consent privilege will not apply
Define self defense
- anyone is privileged to use reasonable force to defend himself against a
- threatened battery on the part of another.
What's the general rule for reasonable belief and self defense?
- Reasonable Belief Sufficient—privilege exists where the defendant reasonably
- believes that the force is necessary to protect himself against battery, even
- though there is in fact no necessity.
- Reasonable mistake will protect from liability!
What are the rules for retreat and consent? there are two
- (1) Majority of
- states do not require a duty to retreat when a person is in their home
- (a) Modern law-no
- duty to retreat
- (b) Common law:
- retreat to the wall
What is NOT privileged under self defense?
I) Excessive force not privileged
II) Retaliation Not Privileged as Self Defense (act for an act) b/c there is present threat
- (1) Once the
- battery is no longer threatened, the privilege terminates and the original
- victim becomes liable for battery.
III) Provocation Not Privileged as Self Defense
- (1) G.R.—Insults,
- verbal threats, and opprobrious language do not justify self-defense.
- (2) Exception—if the abusive words are accompanied by an actual threat of physical violence reasonably warranting an apprehension of imminent bodily harm, one may be
- privileged to defend.
What's the general rule about harming a third party during self defense?
- Privilege Extends to Third Parties (Transferred
- If defending
- one’s self and accidental injury to bystander occurs, privilege of self-defense
- is carried over in terms of transferred intent and one is not liable for
Define Defense of Others
A) Split Authority about mistake helping attacker instead of victim:
- may use reasonable force to defend a 3rd party from impending attack
- by another person BUT the person can only use the amount of force that the 3rd
- party would have been privileged to use.
- I) Reasonable mistake OK: Intervener privilege to use reasonable force to defend another when
- he’s makes a reasonable mistake.
- II) Mistake not OK and held liable: if you mistakenly help the aggressor you are held
- liable b/c intent does not matter.
What is the general rule about defense of others and reasonable mistake?
A) Split Authority about mistake helping attacker instead of victim:
I) Reasonable mistake OK: Intervener privilege to use reasonable force to defend another whenhe’s makes a reasonable mistake.
II) Mistake not OK and held liable: if you mistakenly help the aggressor you are heldliable b/c intent does not matter.
Defense of property:
- may use reasonable force under the circumstances (non-deadly) to protect property
- but NEVER force that will cause death or serious injury
What's the general rule for reasonable mistake and defense of property?
- A) Reasonable mistake is not protected unless
- intruder mislead
- I) Possessor who
- used force to defend property in a reasonably mistaken belief that he was
- entitled to privilege is not protected unless the intruder in some way mislead
- the possessor as to his id or authorization. IE: police not id
- themselves and dressed in plain clothes confused w/ robbers and shot= not
What's the general rule for deadly force and defense of property
- A) Deadly Force—may never be used to protect
- property, unless there is a threat to the life and safety of the defendant and his family.
I) Warnings of deadly force are not enough to protect the defendant.
Define Recovery of Property
- Owner of a chattel, wrongfully dispossessed of that item (by fraud or force), has a
- privilege to take prompt action and use reasonable force under the
- circumstances (non-deadly) to
- recapture the chattel.
Fresh pursuit is required.
Must not breach the peace.
Define fresh pursuit doctrine for recovery of chattel
- Fresh (HOT) pursuit doctrine—person entitled to
- recover property w/o legal intervention UNLESS a lapse of time/delay has
- occurred; must be prompt discovery and pursuit without unreasonable delay
When can reasonable force be used for recovery of a property?
- Reasonable force—not permitted until a demand for
- return of chattel has been made unless such a demand would be futile or
What's the general rule for mistake and recovery of property?
Mistake—defendant is not privileged. Defendant is liable.
Define shopkeepers privilege:
- A merchant is privileged to detain a suspected
- shoplifter if there is:
- (1) Reasonable belief
- of thief
- (2) Reasonable
- time of detention
- (3) Reasonable manner
- of detention
- (a) On the
- merchant’s premises or in reasonable proximity.
Define necessity, types and damages liable for
- B) Public Necessity Doctrine— Use of private property by a public official for a
- public purpose
- I) Immune to
- damage payout usually; the defense is absolute
- II) Act is for
- the public good
C) Private Necessity Doctrine— Use of private property by a private citizen to preserve private property; liable for damages
- I) Act is solely
- to benefit a limited number of people/private interest, D is responsible to pay
- for damages but will not be liable for the intentional tort.
- (2) Nominal
- damages—sometimes depending on
How can access this privilege?
- Persons who have the control of others have the privilege of exercising reasonable
- force and restraint upon them
- I) Parents—may
- use reasonable force. May not
- inflict serious bodily harm.
- Less Latitude for other
- II) Teachers—privilege
- to discipline to maintain reasonable order in the classroom.
- III) Military—controlled
- by military law
- A defendant’s act may be privileged if reasonable under the circumstances to protect
- others from personal injury or protect property
- despite not falling under any of the other privileges
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