Torts – Outline Part 2

Privileges

• Process of analysis:
  • First, has there been a tort?
  • Second, are there privileges?
• You admit committing the tort, but the reason is defensible
• Consent
  • Two types:
    • Express
      • Straightforwardly spoken or in writing
    • Implied
      • doesn’t have to be said outright or signed in writing
      • Types:
        • Course of conduct
        • Social conventions
        • Circumstances
        • Relationship of parties
      • You can withdraw implied consent
  • Consent obtained by fraud = not valid consent
  • Intoxication does not negate intent
  • Consent can apply to any intentional tort
  • Athlete’s consent
    • In unusually violent sports (ex: football)
    • Generally not considered consent to all injuries inflicted
      • Scope of implied consent
        • Liable for all contacts beyond ones impliedly consented
        • Common sense review of what is involved in implied consent
      • Significance of sport’s rules and customs
        • Categories:
          • Conduct allowed by rules
          • Conduct punishable but not “beyond bounds” of sport
          • Reckless or intentionally-harmful conduct beyond usual bounds
            • Liability here
  • Consent to criminal acts = not a privilege
  • Consent, but withdrawn = actionable
  • Emergency situations (with physicians):
    • Consent not possible
    • Risk of death or extreme bodily harm
    • Reasonable person would agree
    • No reason for patient to refuse
  • Nominal damages can be given
• Self-Defense
  • Affirmative defense = D must specifically plead + burden of proof on D
  • One may use reasonable force in self defense if one reasonably believes it to be necessary
    • Was decision to use force reasonable?
    • Was the amount of force reasonable?
      • Degree of force must be amount necessary to prevent the threatened harm
      • Deadly force
        • Can only be used if P is in danger of death or serious bodily harm
  • Retaliation does NOT qualify as SD
    • As soon as the attack has stopped = over
    • SD can be employed as result of retaliation
  • Mistake does NOT negate intent
    • Mistake not defense, but mistake that is reasonable may be SD
      • Can apply to mistake of identity, choice to use force, or amount of force used
    • Here = unique bc mistake is allowed sometimes in SD compared to the handling of mistake in other defenses
  • Verbal Provocation = not SD
    • Physical provocation w offer of force = SD applies
    • Question of reasonableness must be applied here
  • Retreat:
    • Do not have to retreat if less than deadly force
    • Majority rule = do not have to retreat before use of deadly force, if justified
  • Transfer of Privilege:
    • Rules of transfer of intent apply here
    • As long as you are privileged to shoot X, you are privileged to shoot P
    • You can only transfer privilege bc intent transferred
      • Otherwise P can sue for negligence
  • SD = can be used for any intentional tort
    • Must look at person causing intentional tort and then the conduct of SD
      • Not the conduct of the P to be focused on; focus instead on the D
• Defense of Others
  • Can use reasonable force in defense of others
  • Rules identical to SD, except over issue of mistake
    • Mistakenly defending someone else = liable?
      • No clear majority rule:
        • Half of jurisdictions = look at person defended
          • Since A liable, D is liable
        • Other half = D liable
          • Question of whether D acted reasonably
• Defense of Property
  • When invasion is peaceful + occurs in the presence of the possessor = use of any force is unreasonable
  • Law of opinion that once something is stolen, it’s over; must take to court then
    • Rule of fresh pursuit in recovery of property addresses this
  • Reasonable mistake
    • If D’s mistake about whether force necessary = protected
      • Ex: non-deadly force to stop burglar believed to be armed
    • If mistaken about whether intruder has right to be there = not privileged
  • Deadly force
    • Where non-deadly force will not suffice
    • Owner reasonably believes that w/o deadly force, death or serious harm will occur
  • Mechanical devices:
    • Katko v. Briney = no go; the home alone approach (or SAW, depending on how fucked up as a person you are) doesn’t apply
      • A question of intent will be reviewed
      • Intent proven through review of how Briney set up the shotgun trap
• Recovery of Property
  • Fresh pursuit
    • If D notices property is taken as it is happening, pursuit begins promptly, is continuous, and demand made = reasonable force can be used in the recovery of property
      • Right to regain property without unreasonable violence
    • If owner of property voluntarily relinquishes the property, recovery must be made peacefully; otherwise must seek legal help
    • Rules can always escalate into SD role = escalation of reasonable force (even to deadly) then allowed
  • Shopkeeper’s privilege
    • If they reasonably believe that someone has committed theft (or is about to), they are allowed a reasonable detention and investigation for a reasonable amount of time
      • Time frame = long enough to call the police
  • Must have reasonable force; can’t be deadly
• Necessity
  • Private
    • Not liable to trespass to chattel, conversion, trespass to property under private necessity
    • Necessity = key element
      • Protecting self from serious damage or life
    • D still has to compensate P for damage to property
    • Privilege = D cannot be ejected from property
  • Public
    • Not liable for trespass to chattel, trespass to land, or conversion if not acting in the public good (protecting the public at large or public property)
      • To community or to many people
    • No right of compensation under CL
    • You do not have to be a gov employee to exercise it and don’t have to be successful in endeavor
  • Authority of Law
    • Privileged
    • Police officers, military, prison officials, regulatory inspectors, + mental health facility officials
    • Liable only if acting improperly
      • Ex: excessive force
      • Mistakes in good faith also not protected
  • Discipline
    • Mostly privileged
    • Relationships it applies to
      • Parent and child
      • Military + naval officers and subordinates
      • Master of ship over crew and passengers