Torts 2 .txt

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

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

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

If physician operates on you and expands that operation to a completely unrelated part of the body, that is a battery.

BUT Surgery of adjacent areas is generally within the scope of consent.

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

• (1) Proper Timing: Threat must be in-progress or imminent—No revenge
• (2) Reasonable belief that threat is genuine
• (3) Protective force is proportional to threat posed

• Notes:
• Belief in genuineness: Defense is not lost if ∆ makes a reasonable mistake under the circumstances
• Amount of Force–Rule of Proportionality, Necessity and Symmetry–
• 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:
• (1) Retreat would be dangerous or not feasible
• (2) ∆ is within his/her own home
• (3) ∆ is a cop or assisting a cop.

• 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

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 or punitive damages
• ∆ is allowed to remain on π's land in a position of safety for as long as an emergency continues. Otherwise, π is liable for a battery.

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