Privileges_to_Intentional_Tort_(101).txt

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marioavarela
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50984
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Privileges_to_Intentional_Tort_(101).txt
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2010-11-21 19:58:29
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Privileges Intentional Tort
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Privileges Intentional_Torts
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  1. Define Privilege
    • doctrines that allow a defendant to escape liability
    • of an intentional tort
  2. 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
  3. Define Consent.
    What types of consent are there?
    Willingness for conduct to occur



    I) Express (actual) consent- expressed affirmation/ willingness of a particular act

    • Something
    • 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
  4. 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
  5. 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
  6. 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
  7. Define self defense
    • anyone is privileged to use reasonable force to defend himself against a
    • threatened battery on the part of another.
  8. 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!
  9. 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

    • (2) Outside the
    • home:

    • (a) Modern law-no
    • duty to retreat

    • (b) Common law:
    • retreat to the wall
  10. What is NOT privileged under self defense?

    Know 3
    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.
  11. What's the general rule about harming a third party during self defense?
    • Privilege Extends to Third Parties (Transferred
    • privilege)

    • 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
    • negligence
  12. Define Defense of Others
    • Person
    • 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.



    A) Split Authority about mistake helping attacker instead of victim:

    • 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.
  13. 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.
  14. 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
  15. 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
    • liable
  16. 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.
  17. Define Recovery of Property
    2 Requirements
    • 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.
  18. 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
  19. 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
    • dangerous.
  20. What's the general rule for mistake and recovery of property?
    Mistake—defendant is not privileged. Defendant is liable.
  21. 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.
  22. 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.

    • II) Liable for
    • Damages

    • (1) Actual
    • damages—always

    • (2) Nominal
    • damages—sometimes depending on
  23. Define discipline

    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
    • people.

    • II) Teachers—privilege
    • to discipline to maintain reasonable order in the classroom.

    • III) Military—controlled
    • by military law
  24. Define Justification:
    • 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

    A) Catch-all

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