1L Privileges to Intentional Tort (101)

• doctrines that allow a defendant to escape liability
• of an intentional tort

1. P must be able to state a claim for an intentional tort

2. D must have a privilege to shield them from liability

Willingness for conduct to occur



I) Express (actual) consent- expressed affirmation/ willingness of a particular act

• Something
• overt (IE: oral permission, signing permission slip)

II) Implied consent- implied from conduct or actions (custom, or words, or by law)

• (1) Use an objective approach-- “what a reasonable
• person would infer P’s conduct and circumstance as”. (IE:football=tackle)

• (2) Must be within reasonable bounds to consent;
• cannot exceed scope of consent

1. Consent given by one capable of consent or one empowered to consent on their behalf

2. D did not exceed scope of consent; consent is to a particular conduct

1. Conduct exceeds scope of consent

2. Withdrawal of consent is made

• 3. Consent induced by Fraud, Duress, or Lack of
• information of true character is invalid consent; no privilege is available

• Prior Course of Conduct can be assumed consent if parties have previously been engaged in
• the behavior beforehand. (IE: rough house practical joking traditional)

• If P specifically withdraws from prior course of conduct and informs D
• of withdrawal, then consent privilege will not apply

• anyone is privileged to use reasonable force to defend himself against a
• threatened battery on the part of another.

• Reasonable Belief Sufficient—privilege exists where the defendant reasonably
• believes that the force is necessary to protect himself against battery, even
• though there is in fact no necessity.
• Reasonable mistake will protect from liability!

• (1) Majority of
• states do not require a duty to retreat when a person is in their home

• (2) Outside the
• home:

• (a) Modern law-no
• duty to retreat

• (b) Common law:
• retreat to the wall

I) Excessive force not privileged

II) Retaliation Not Privileged as Self Defense (act for an act) b/c there is present threat

• (1) Once the
• battery is no longer threatened, the privilege terminates and the original
• victim becomes liable for battery.

III) Provocation Not Privileged as Self Defense

• (1) G.R.—Insults,
• verbal threats, and opprobrious language do not justify self-defense.

• (2) Exception—if the abusive words are accompanied by an actual threat of physical violence reasonably warranting an apprehension of imminent bodily harm, one may be
• privileged to defend.

• Privilege Extends to Third Parties (Transferred
• privilege)

• If defending
• one’s self and accidental injury to bystander occurs, privilege of self-defense
• is carried over in terms of transferred intent and one is not liable for
• negligence

• Person
• may use reasonable force to defend a 3rd party from impending attack
• by another person BUT the person can only use the amount of force that the 3rd
• party would have been privileged to use.

A) Split Authority about mistake helping attacker instead of victim:

• I) Reasonable mistake OK: Intervener privilege to use reasonable force to defend another when
• he’s makes a reasonable mistake.

• II) Mistake not OK and held liable: if you mistakenly help the aggressor you are held
• liable b/c intent does not matter.

A) Split Authority about mistake helping attacker instead of victim:

I) Reasonable mistake OK: Intervener privilege to use reasonable force to defend another whenhe’s makes a reasonable mistake.

II) Mistake not OK and held liable: if you mistakenly help the aggressor you are heldliable b/c intent does not matter.

• may use reasonable force under the circumstances (non-deadly) to protect property
• but NEVER force that will cause death or serious injury

• A) Reasonable mistake is not protected unless
• intruder mislead

• I) Possessor who
• used force to defend property in a reasonably mistaken belief that he was
• entitled to privilege is not protected unless the intruder in some way mislead
• the possessor as to his id or authorization. IE: police not id
• themselves and dressed in plain clothes confused w/ robbers and shot= not
• liable

• A) Deadly Force—may never be used to protect
• property, unless there is a threat to the life and safety of the defendant and his family.

I) Warnings of deadly force are not enough to protect the defendant.

• Owner of a chattel, wrongfully dispossessed of that item (by fraud or force), has a
• privilege to take prompt action and use reasonable force under the
• circumstances (non-deadly) to
• recapture the chattel.

Fresh pursuit is required.

Must not breach the peace.

• Fresh (HOT) pursuit doctrine—person entitled to
• recover property w/o legal intervention UNLESS a lapse of time/delay has
• occurred; must be prompt discovery and pursuit without unreasonable delay

• Reasonable force—not permitted until a demand for
• return of chattel has been made unless such a demand would be futile or
• dangerous.

Mistake—defendant is not privileged. Defendant is liable.

• A merchant is privileged to detain a suspected
• shoplifter if there is:

• (1) Reasonable belief
• of thief

• (2) Reasonable
• time of detention

• (3) Reasonable manner
• of detention

• (a) On the
• merchant’s premises or in reasonable proximity.

• B) Public Necessity Doctrine— Use of private property by a public official for a
• public purpose

• I) Immune to
• damage payout usually; the defense is absolute

• II) Act is for
• the public good

C) Private Necessity Doctrine— Use of private property by a private citizen to preserve private property; liable for damages

• I) Act is solely
• to benefit a limited number of people/private interest, D is responsible to pay
• for damages but will not be liable for the intentional tort.

• II) Liable for
• Damages

• (1) Actual
• damages—always

• (2) Nominal
• damages—sometimes depending on

• Persons who have the control of others have the privilege of exercising reasonable
• force and restraint upon them

• I) Parents—may
• use reasonable force. May not
• inflict serious bodily harm.

• Less Latitude for other
• people.

• II) Teachers—privilege
• to discipline to maintain reasonable order in the classroom.

• III) Military—controlled
• by military law

• A defendant’s act may be privileged if reasonable under the circumstances to protect
• others from personal injury or protect property
• despite not falling under any of the other privileges

A) Catch-all