Torts 2

Acts as an affirmative defense to all intentional torts.

NB—

• Actions outside the scope of consent do not escape liability
• Fraud or duress negates express consent
• Must have legal capacity to consent
• Children, though lacking normal legal capacity, may consent to age-appropriate conduct

• Customary practice (e.g., most doctor's visits), OR
• ∆'s reasonable interpretation of π's objective conduct

NB—

• Ignore π's subjective mental reservations—focus on π's objective conduct
• Successful implied consent is an affirmative defense to all intentional torts
• Actions outside the scope of the implied consent are still actionable

• Actions outside the scope of consent are still actionable
• Consider express statements and implied conduct to determine scope of consent
• NB: Surgery of adjacent areas is generally within the scope of consent

Example—In a consented knee surgery, it would be within the scope for the surgeon to operate on nearby knee/leg bones, but would be outside the scope if rhinoplasty were performed

• Self-Defense
• Defense of others
• Defense of Property

• Proper Timing—No revenge
• Reasonable belief that threat is genuine
• Protective force is proportional to threat posed

Notes:

• Timing: Threat must be in-progress or imminent—can't respond after the fact (no revenge)
• Belief in genuineness: Defense is not lost if ∆ makes a reasonable mistake under the circumstances

Notes on Proportionality and Deadly Force:

• May use deadly force to fend-off other deadly force
• Deadly force may be used to protect human life—never property

• NY Distinctions Prior to using deadly force, ∆ must attempt to retreat unless
• Retreat would be dangerous or not feasible
• ∆ is within his/her own home
• ∆ is a police officer

Applies to torts against property, including—

• Trespass to chattels and land
• Conversion

• Public Necessity
• Private Necessity

• When: ∆ invades π's property in an emergency to protect the community as a whole, or a significant group of people
• Absolute defense: No liability
• Policy: Don't discourage good deeds

When: ∆ invades π's property in an emergency to protect ∆'s interests

Consequences—

• Liable for actual damages to π's property
• Not liable for nominal ($1) or punitive ($1,000,000,000) damages
• ∆ is allowed to remain on π's land in a position of safety for as long as an emergency continues

NB—There is no liability if ∆ acts to protect π's own property