Torts 2 .txt

  1. Consent: Express: Definition and Limitations
    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
    • (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.
  3. Scope of Consent in Medical Procedures
    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.
  4. Types of Protective Privileges
    • Self-Defense
    • Defense of others
    • Defense of Property
  5. Protective Privileges : Requirements
    • (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.
  6. 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
  7. 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 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
Card Set
Torts 2 .txt
Defenses to Intentional Torts