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defenses to intentional torts - Coggle Diagram
defenses to intentional torts
definition = ways of avoiding liability even if all of the elements of a tort claim have been establsihed
defenses, generally = for defenses, the burden of proof shifts to the D seeking protection to establish the necessary facts to support hte defense
consent = a defense to intentional tort, applicable in cases wehre P has voluntarily and knowingly relinquished a right to be free of battery, assault, or another intentional tort; consent will not be found if P lacks the capacity to consent; fraud, deceit not effective
five categories of consent = actual, apparent, substitute, constructive, emergency
acutal consnet = applies where a person is subjectively willign to be the target of D's contact
apparent consent = applies in circumstances in which a reasonable perosn would have beleived that P wasa actaully concsented to the otherwise tortious conduct
substitute consent = applies where consent is given by a third person who can legally bind P
implied in law, constructive consent
emergency doctrine = applies where there is an emergency situation in which a reasonble person would consent to a particualr invasion, and the party acting does not ahve the opportunity to seek actual consent
express or implied manifestation of consetn = msut be manifested by P, whether wexpressed, words, or implied, actions; judged by a reasonble person standard
consent be knowing = consent must be knowingly and voluntarily extended; some level of awareness or knowledge of what is consented to
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excessive force and cope of intent
where D exceeds the scope of consent, D has used excessive force, and would be liable for the result
P may consent to risks from a certain kind or level of conduct by D, but D exceeds that level of conduct
consent may be limited in time or subject to other limitations suchas a condition, which if realized, triggers revocation of consent
P may ahve consented to an invasion by someone other than D
burden shifts to P to prove force was excessive
withdrawal of consent
requries some express manifestaation of withdrawal
can be revoked by a manner that would lead a resaonble person to infer consent can no longer be presumed
consent obtained through false statements, fraud, or omission of material information in the face of a duty to speak, deceit, is not effective
medical treatment rule
P must act or use langauge which can be subject to no other inference; msut leave no room for doubt. must be medically feasible for doctor to desist in treatment or examination
self defense
definition = protects D where he used force ro threat of force to protect himself from assault or battery; revent not privileged
deadly force, duty to retreat
deadly force = force intended or likley to cause serious bodily harm or DDD, death, dismemberment, or permanent disability
duty to retreat
majority rules = no duty to retreat before using deadly force even if retreat is possible, no duty ot retreat for non deadly force
minority rule = duty to retreat before using deadly force if it si clearly safe; no duty to retreat from own home
if no force is privileged, D would pay full extent of damages
if some force was privileged, but D simply went beyond level of force, measure of damages would be the difference between the actual damages adn the damages that would have resulted from the use of only privileged level of force
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proprotionality princople = only defensive force deemed proportional, limited to the level of force necessary to prevent aggressor from committing harm is protected
force is permitted in defense only if it is proportional = to the protected interest, and the injury or harm threatened by the aggressor, and only if hte harm threatened would have been cuased immediately
defense of others = a person can use force to defend a third party to the same extent that third party could use force to defend themselves
mistaken defense of others = some courts provide privileges to anyone who 'reasonably perceived' another to be threatened
others only allow the privilege if the victim would have believed he was threatened
necessity = D is privileged to interfere with a possessor interest, in land or chattels, in order to avoid a greater injury
private necessity is an 'incomplete' defense
D has a privilege to interfere iwth P's proeprty, but is liable for hte damges done
since D is privileged to act, he is not a trespasser and cannot be expelled with force by P; not liable for nominal or punitive damges, as a trespasser would be
public necessity is a 'complete' defense
actiosn to protect the community as a whole are both privileged and impsoe on D no obligation for damge