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Consent : Express
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
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Consent : Implied
- 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
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Consent : Scope of Consent
- 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
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Protective Privileges : What's Included?
- Self-Defense
- Defense of others
- Defense of Property
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Protective Privileges : Requirements
- 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
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Necessity : Generally
Applies to torts against property, including—
- Trespass to chattels and land
- Conversion
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Necessity : Types
- Public Necessity
- Private Necessity
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Necessity : Public 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
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Necessity : Private Necessity
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
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