Torts 2

  1. Consent : Express
    Acts as an affirmative defense to all intentional torts.


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


    • 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
  3. 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
  4. Protective Privileges : What's Included?
    • Self-Defense
    • Defense of others
    • Defense of Property
  5. Protective Privileges : Requirements
    • Proper Timing—No revenge
    • Reasonable belief that threat is genuine
    • Protective force is proportional to threat posed


    • 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
  6. Necessity : Generally
    Applies to torts against property, including—

    • Trespass to chattels and land
    • Conversion
  7. Necessity : Types
    • Public Necessity
    • Private Necessity
  8. 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
  9. Necessity : Private Necessity
    When: ∆ invades π's property in an emergency to protect ∆'s interests


    • 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
Card Set
Torts 2
Torts 2 - Affirmative Defenses to Intentional Torts