Chapter 4

DEFENSES TO INTENTIONAL TORTS

I. CONSENT

A. Express consent: If P expressly consents to an intentional interference with his person or property, D will not be liable for that interference. (Example: P says to D, “Go ahead, hit me in the stomach — I’ll show you how strong I am.” If D does so, P’s consent prevents P from suing for battery.)

B. Implied consent: Existence of consent may also be implied from P’s conduct, from custom, or from the circumstances.

1. Objective manifestation: It is the objective manifestations by P that count — if it reasonably seemed to one in D’s position that P consented, consent exists regardless of P’s subjective state of mind. (Example: D offers to vaccinate all passengers on their ship. P holds up her arm and receives the vaccination. Since it reasonably appeared to D that P consented, there will be consent regardless of P’s actual state of mind. [O’Brien v. Cunard])

C. Lack of capacity: Consent will be invalidated if P is incapable of giving that consent, because she is a child, intoxicated, unconscious, etc.

1. Consent as a matter of law: But even if P is incapable of truly giving consent, consent will be implied “as a matter of law” if these factors exist: (1) P is unable to give consent; (2) immediate action is necessary to save P’s life or health; (3) there is no indication that P would not consent if able; and (4) a reasonable person would consent in the circumstances. (Example: P is brought unconscious to the emergency room of D, a hospital. D can perform emergency surgery without P’s actual consent — consent will be implied as a matter of law. Therefore, P cannot sue for battery.)

D. Exceeding scope: Even if P does consent to an invasion of her interests, D will not be privileged if he goes substantially beyond the scope of that consent.

Example: P visits D, a doctor, and consents to an operation on her right ear. While P is under anesthetic, D decides that P’s left ear needs an operation as well, and does it. P’s consent does not block an action for battery for the left-ear operation, since the operation went beyond the scope of P’s consent. [Mohr v. Williams]

1. Emergency: However, in the surgery case, an emergency may justify extending the surgery beyond that consented to.

E. Consent to criminal acts: Where D’s act against P is a criminal act, courts are split. The majority rule is that P’s consent is ineffective if the act consented to is a crime. (Example: P and D agree to fight with each other. In most states, each may recover from the other, on the theory that consent to a crime — such as breach of peace — is ineffective.)

II. SELF-DEFENSE

A. Privilege generally: A person is entitled to use reasonable force to prevent any threatened harmful or offensive bodily contact, and any threatened confinement or imprisonment.

B. Apparent necessity: Self-defense may be used not only where there is a real threat of harm, but also where D reasonably believes that there is one.

C. Only for protection: The defense of self-defense applies only where D uses the force needed to protect himself against harm.

1. Retaliation: Thus D may not use any degree of force in retaliation for a tort already committed. (Example: P hits D with a snowball. Ten minutes later, D hits P with a snowball, in retaliation. D has committed battery on P, because D’s act was not done in true self-defense.)

2. Imminence: D may not use force to avoid harm which is not imminent, unless it reasonably appears that there will not be a later chance to prevent the danger. (Example: P says to D, “I will beat you up tomorrow.” D cannot beat P up today, to prevent tomorrow’s attack, unless it appears that there will be no way for D to defend tomorrow.)

D. Degree of force: Only the degree of force necessary to prevent the threatened harm may be used. If D uses more force than necessary, he will be liable for damage caused by the excess.

1. Deadly force: Special rules limit the use of deadly force, i.e., force intended or likely to cause death or serious bodily injury.

a. Danger must be serious: D may not use deadly force unless he himself is in danger of death or serious bodily harm. (Example: P attacks D with his fists, in a way that does not threaten D with serious bodily harm. Even if there is no other way for D to prevent the attack, D may not use his gun to shoot P, even if the shot is intended only to injure P — D must submit to the attack rather than use deadly force.)

E. Retreat: Courts are split on whether and when D has a “duty to retreat” (i.e., to run away or withdraw) if the threatened harm could be avoided this way.

1. Restatement view: The Second Restatement holds that: (1) D may use non-deadly force rather than retreating; but (2) D may not use deadly force in lieu of retreating, except if attacked in his dwelling by one who does not reside in the dwelling. (Example: If P attacks D on the street with a knife, under the Restatement D may use his fists rather than running away, but may not use a gun rather than running away if running away would avoid the danger. If the attack took place in D’s home, where P was not also a resident, then D could use the gun.)

III. DEFENSE OF OTHERS

A. General rule: A person may use reasonable force to defend another person against attack. The same rules apply as in self-defense: the defender may only use reasonable force, and may not use deadly force to repel a non-deadly attack.

1. Reasonable mistake: The courts are split on the effect of a reasonable mistake. Older courts hold that the intervener “steps into the shoes” of the person aided, and thus bears the risk of a mistake. But Rest.2d gives a “reasonable mistake” defense to the intervener.

IV. DEFENSE OF PROPERTY

A. General rule: A person may generally use reasonable force to defend her property, both land and chattels.

1. Warning required first: The owner must first make a verbal demand that the intruder stop, unless it reasonably appears that violence or harm will occur immediately, or that the request to stop will be useless.

B. Mistake: The effect of a reasonable mistake by D varies:

1. Mistake as to danger: If D’s mistake is about whether force is necessary, D is protected by a reasonable mistake. (Example: D uses non-deadly force to stop a burglar whom he reasonably believes to be armed. In fact, the burglar is not armed. D can rely on the defense of property.)

2. Privilege: But if the owner’s mistake is about whether the intruder has a right to be there, the owner’s use of force will not be privileged. (Example: D reasonably believes that P is a burglar. In fact, P is a friend who has entered D’s house to retrieve her purse, without wanting to bother D. Even non-deadly force by D will not be privileged.)

C. Deadly force: The owner may use deadly force only where: (1) non-deadly force will not suffice; and (2) the owner reasonably believes that without deadly force, death or serious bodily harm will occur. [65] (Example: D sees P trespassing in P’s backyard. D asks P to leave, but P refuses. Even if there is no way to make P leave except by shooting at him, D may not do so, since P’s conduct does not threaten D with death or serious bodily harm.)

1. Burglary: But a homeowner is generally allowed to use deadly force against a burglar, provided that she reasonably believes that nothing short of this force will safely keep the burglar out.

D. Mechanical devices: An owner may use a mechanical device to protect her property only if she would be privileged to use a similar degree of force if she were present and acting herself.

1. Reasonable mistake: An owner’s right to use a dangerous mechanical device in a particular case will be measured by whether deadly force could have been used against that particular intruder. (Example: D uses a spring gun to protect his house while he is away. If the gun shoots an actual burglar, and state law would have allowed D to shoot the burglar if D was present, then D will not be liable for using the spring gun. But if a neighbor, postal carrier, or someone else not engaged in a crime happened to enter and was shot, D would not have a “reasonable mistake” defense — since D could not have fired the gun at such a person directly, the spring gun may not be used either.)

V. RECAPTURE OF CHATTELS

A. Generally: A property owner has the general right to use reasonable force to regain possession of chattels taken from her by someone else.

1. Fresh pursuit: The privilege exists only if the property owner is in “fresh pursuit” to recover his property. That is, the owner must act without unreasonable delay. (Example: A learns that B has stolen a stereo and is in possession of it. A may use reasonable force to reclaim the stereo if he acts immediately, but not if he waits, say, a week between learning that D has the property and attempting to regain it.)

2. Reasonable force: The force used must be reasonable, and deadly force can never be used.

3. Wrongful taking: The privilege exists only if the property was taken wrongfully from the owner. If the owner parts willingly with possession, and an event then occurs which gives him the right to repossess, he generally will not be able to use force to regain it. (Example: O rents a TV to A. A refuses to return the set on time. O probably may not use reasonable force to enter A’s home to repossess the set, because A’s original possession was not wrongful.)

B. Merchant: Where a merchant reasonably believes that a person is stealing his property, many courts give the merchant a privilege to temporarily detain the person for investigation.

1. Limited time: The detention must be limited to a short time, generally 10 or 15 minutes or less, just long enough to determine whether the person has really shoplifted or not. Then, the police must be called (the merchant may not purport to arrest the suspect himself).

VI. NECESSITY

A. General rule: Under the defense of “necessity, D has a privilege to harm the property interest of P where this is necessary in order to prevent great harm to third persons or to the defendant herself.

B. Public necessity: If interference with the land or chattels of another is necessary to prevent a disaster to the community or to many people, the privilege is that of “public necessity.” Here, no compensation has to be paid by the person doing the damage. (Example: Firefighters demolish D’s house, in which a fire has just barely started, because that is the best way to stop the fire from spreading much further. The firefighters, and the town employing them, probably do not have to pay, because they are protected by the privilege of public necessity.)

C. Private necessity: If a person prevents injury to himself or his property, or to the person or property of a third person, this is protected by the privilege of “private necessity,” if there is no less-damaging way of preventing the harm. (Example: A, while sailing, is caught in very rough seas. To save his life, he may moor at a dock owned by B, and will not be liable for trespass.)

1. Actual damage: Where the privilege of private necessity exists, it will be a complete defense to a tort claim where P has suffered no actual substantial harm (as in the above example). But if actual damage occurs, P must pay for the damage she has caused. (Example: On the facts of the above example, if A’s boat slammed into B’s dock and damaged it, A would have to pay.)

2. Owner may not resist: The main purpose of the doctrine of private necessity is to prevent the person whose property might be injured from defeating the exercise of the privilege.

Example: P moors his ship at D’s dock, to avoid being shipwrecked by heavy seas. D, objecting to what he thinks is a trespass, unmoors the ship, causing the ship to be harmed and P to be injured. P may recover from D, because P’s mooring was privileged by private necessity and D, therefore, acted wrongfully. [Ploof v. Putnam]

VII. ARREST

A. Common law rules:

1. Arrest with warrant: Where a police officer executes an arrest with an arrest warrant that appears to be correctly issued, he will not be liable even if it turns out that there was no probable cause or the procedures used to get the warrant were not proper.

2. Arrest without warrant:

a. Felony or breach of peace in presence: A police officer may make a warrantless arrest for a felony or for a breach of the peace, if the offense is being committed or seems about to be committed in his presence. A citizen may do the same.

b. Past felony: Once a felony has been committed, an officer may still make a warrantless arrest, provided that he reasonably believes that the felony has been committed, and also reasonably believes that he has the right criminal. A citizen may make an arrest only if a felony has in fact been committed (though the citizen is protected if she makes a reasonable mistake and arrests the wrong person).

c. Misdemeanor: At common law, no warrantless arrest (either by an officer or by a citizen) may be made for a past misdemeanor not involving a breach of the peace.

3. Reasonable force: One making an arrest may not use more force than is reasonably necessary.

a. Prevention: Where the arrest is made to prevent a felony which threatens human life or safety, even deadly force may be used, if there is no other way to prevent the crime. But where the felony does not involve such danger, deadly force may not be used.

b. Apprehension after crime: If a crime has already been committed, the police may use deadly force only if the suspect poses a significant threat of death or serious physical injury to others. (Example: Officer spots Burglar escaping after his crime. Officer knows that Burglar is unarmed and unlikely to be violent. Officer may not shoot at Burglar to arrest him, even if there is no other way to make the arrest.)

VIII. JUSTIFICATION

A. Generally: Even if D’s conduct does not fit within one of the narrower defenses, she may be entitled to the general defense of “justification, a catch-all term used where there are good reasons for exculpating D from what would otherwise be an intentional tort.