Term
| What are the two main defenses to intentional torts? |
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Definition
1) Consent
2) Self defense |
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Term
| What are the two types of consent? |
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Definition
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Term
| What does express consent mean for the defendant? |
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Definition
| The defendant is not liable for for an otherwise tortious act if the plaintiff consent to the defendant's conduct. |
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Term
What kind of consent is express conesnt?
How is it given? |
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Definition
| It is actual consent given by words,, contract law, custom, or where the plaintiff has expressly shown a willingness to submit to the defednants content. |
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Term
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Definition
generally it is not a valid defense; the fraud must go to the esstential matter.
It is only a collateral matter, it does not change |
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Term
| Is conesnt by duress valid? |
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Definition
Consent by duress may be invalid.
However, threats fo furture action or future economic deprivation does not make the consent invalid. |
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Term
| Implied Consent- two kinds |
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Definition
| A plaintiff' consent may be implied by aparent consent or by law |
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Term
Apparent consent?
How is it determined?
What is an example? |
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Definition
Apparent consent is determined by the reasonable person test; Consent is inferred by the plaintiff's conduct or through usage and custom.
I.e. a footabll player cosents to being tackled just by playing football. |
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Term
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Definition
An action to necessary to save the live or other important interest (i.e. an emergency situation) allows for for consent by law
(i.e. a fireman grabs you out of a house)
Of if a surgeion operates on an uncouncious critically injured person, then there is consent by law. |
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Term
| Do you need capacity to give consent? |
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Definition
| Yes, you need capacity to give consent |
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Term
| Who can not give consent to an intentional tort? |
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Definition
| Legally incompetent indiviudals, drunks, very young chilrden are incapable of dgiving consent to tortious conducts; |
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Term
| With regards to intentional torts, who can provide consent for young chilrden? |
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Definition
| For young children to consent, usually the consent of a parent or guardian is required. |
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Term
| Can you consent if you are drunk? |
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Definition
| No, you cannot consent if you are drunk. |
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Term
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Definition
| When a person has reasonable ground to believe he is or is about to be attacked he may use such force as is reaonably necessary to protect himself from potential injury. |
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Term
| Is retaliation allowed if asserting personal defense? |
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Definition
| No, retaliation is not allowed. |
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Term
| When is self-defense an available defense? |
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Definition
1) if there was a reaonsable belief on teh part of the plaintiff
2)retaliation is not permitted
3) retreat is not required
4) It is not avaialable to the aggressor |
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Term
Do you need to retreat in order to use self-defense?
where do you not need to retreat to use deadly force?
Where yshould you try to retreat before using dealdiy force? |
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Definition
| You no longer need to retreatin house before you use deadlly forece; else where if you have a a deadly weapon, you must try to retreat |
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Term
| When using self-defense, does the force used have to match the threat? |
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Definition
Yea, only can only use that force that reaosonably appears to be necessary to prevent harm.
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Term
| What must you show to succesfully assert self defense? |
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Definition
| You must show that under the circumstances, you used self-defense reasonably. |
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Term
| What kind of force is one allowed to use in self-defense? |
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Definition
One can only use that force that reasonably appears to be necessary to prevent harm.
The force used in self-defense must match the force of the intendend act. |
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Term
| If you use self-defense against an agressor and they get hurt, can they claim self-defense |
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Definition
| No, if while using self-defesne, you hurt the agressor, they then cannot claim that they were using self-defense |
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Term
| Defesne of other- majority rule |
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Definition
| One may use force to defend another person when the other person could have used force to protect themselves. If an actor reasonably believes that the unprotected inidividual could have used self-defesnse to protect themselves, then the actor cannot be held liable if he only uses that forces which is reasaonble to prevent injury |
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Term
| When is force permitted in defesne of another? |
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Definition
| The defesne must be like force and the other person either cannot or will not defend themselves. |
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Term
| Defense of Property- Generally |
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Definition
| One may use reasonable force to prevent the commission of a tort against property |
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Term
| Is the reasonable test required to employ defense of property |
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Definition
| To employ a defense of property defense in court, the reasonable test must be used |
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Term
In defense of property, do a majority of jurisdictions require you make a request for the person to stop?
What are the exceptions to this rule? |
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Definition
The majority of courts require a request to ask the person to stop, and then if they tortefeasor refuses, one can use force to stop the commission of a tort against property.
However, this only applies if it is reasonable and not dangerous to ask.
If it is not reasonable or safe to make the request, you may go ahead and use force. |
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Term
What must be the purpose of the force for the defense of property defense to apply?
When will it not apply?
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Definition
It must be aimed a stopping the commission of a tort and not to retalitate
(Think Katko v. Briney) |
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Term
| In Texas, can you use deadly force to protect property? |
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Definition
| Yes, in texas you may use deadly force to protect your proepty, even if it is uninhabited. |
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Term
| Defense of property (general basic requirements) |
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Definition
A request for the tortefeasor to cease and desist unless such a request is dangerous or futiles
It is limited to prevention of commissions of torts and only use reasonable force |
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Term
Rentry onto land- in the old days
What else was this called? |
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Definition
Common law privilege: if aperson was tortiously dispossessed of their land, they could use reasonable force to regain possession if they acted promptly.
This was also called self-help |
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Term
| Modern day viewpoint about rentry to land |
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Definition
In modern days, the privliege of using reasonable force to retake one's property does not exist and today self-help is not an option.
One may use peaceful means to enter the land, but force is not permitted. |
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Term
| Normally, can force be used in the recapture of chattals? |
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Definition
Typically, only peaceful means may be used to recapture chattals.
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Term
What must precede use of reasonable force to recapture chattals?
What is the exception to this? |
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Definition
| Timely demand must preced use of reasonable force unless cricumstances make it clear the demand would be futile or dangerous. |
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Term
| From whom can you recapture chattels from? |
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Definition
Recapture only from torefeasor or knowing third party or a third party who should know.
If the party in possession is innocent, then this cuts off the privilege of recapture. |
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Term
What is the general rule regarding the use of force to recaptures chattels?
When must it be used |
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Definition
| You can use force in "hot pursuit" ortherwise, you must use peaceful means or a reasonable force unless you are in a dangerous circumstance. |
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Term
| When can you absolutely not use force in recapturing chattels? |
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Definition
| If an innocent third party is in possession of the Chattels, then you must only use reasonable means. |
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Term
| Entry upon land to remove Chattels |
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Definition
Chattel owner is privlieged to enter onto the wrongdoers land to reclaim the chattel at a reasonable time and in a peaceful manner.
The chattel owner may enter wrongful doer's land to reclaim the chattel at a reasonable time and in a peacful manner after notice is given. |
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Term
| Can the owner of a chattel, go on to a 3rd person's land to recapture a chattel? |
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Definition
| No, there is no privlege for the owner of a chattel to enter onto a third person's land to recapture the chattel |
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Term
| What can you do if you justifiably go onto land to regain a chattel and the tortefeasor pulls a gun on you? |
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Definition
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Term
| Neccesity and the interference of property |
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Definition
| A person may interfer with real or personal property of another where it is reasonably or apparently necessary to avoid threatened injury from nature or other force and where the threat of injury is substantially more serious than the ivnasion that is undertaken to prevent it. |
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Term
Public necessity
(example)
What kind of defense is this? |
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Definition
an act for the the good of the the public (i.e. you shoot a rabid dog).
This is an aboslute defense |
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Term
Private necessity
Example
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Definition
Where an act is solely to benefit any person or any property from destruction or serious injury.
So if I do something to protect my propety so that I touch and hurt yours in the process, I can use this defense.
BUT this is a qualified defense so then I would have to pay damages. |
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