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Torts 1L Mod 5-6

Torts 1L Mod 5-6 Rules statements and elements

QuestionAnswer
3 types of consent Express, Implied, By Law
Express consent An individual can convey consent expressly in words or through pictorial gestures.
Implied consent The conduct of the individual reasonably conveys consent, Silence can imply consent.
In the absence of contrary expressions by the individual, consent can also be implied by community custom, Posting a sign, Lack of objection
Consent by Law Courts recognize consent to emergency medical treatment by health professionals when a victim is unconscious and unable to provide consent.
Defenses to intentional torts Consent, Self defense, Defense of others, Defense and recovery of property, Necessity
Invalidating consent Incapacity, action beyond scope of consent, Fraud, Duress, Illegality
Incapacity Both express and implied consent can be held invalid.
individual can lack capacity because of Age, Insufficient mental capacity, Result of drug ingestion; Incapacity that is not known or should not be known by the defendant should not invalidate a defense of consent.
Action beyond scope of consent Invalidates consent if the action goes beyond the consent manifested.
Fraud Consent is invalid if it is induced by fraud. That miss represent and essential aspect of the interaction. Fraud to a collateral matter does not negate the consent.
Duress Consent procured under physical threat is invalid. Economic pressure while coercive does not negate consent. In extreme cases situational duress can negate consent.
Illegality Traditionally a person can not consent to a criminal act. The consent is always invalid. Restatement = A person can consent to a criminal act for the purpose of tort liability
Self defense A defense which can justify and negate intentional tort liability. Reasonable force can be used where one reasonably believes that such force is necessary to protect oneself from immediate harm. (subjective and objective)
Self defense threat must be immediate Must be in response to an immediate threat of harm. Note: a preemptive strike is not justified under common law.
Victims response must be reasonable Self defense is only justified if the individual reasonably believes that force is necessary to avoid an unlawful attack. Must also reasonably believe self defense is necessary.
Obligation to retreat from deadly force Restatement requires retreat where serious bodily injury or death would otherwise be required in self defense.
Restatement does not require retreat when it is your own dwelling unless the assailant also lives in the dwelling, and if the victim does not believe this can be accomplished safely.
Defense of others A person can use reasonable force to protect a third person from immediate unlawful physical harm. Note: this applies to family , household members, or strangers.
Rules for Defense of Others Limited Privilege Rule, Restatement Rule
Limited privilege rule The privilege to use force in defense of a third person exists only when the person being defended was privileged to use force.
Restatement rule There is a privilege to use reasonable force to protect a third party whenever the actor reasonably believes a third party is entitled to exercise self defense.
Defense and recovery of property An individual is privileged to use reasonable force to prevent a tort against their real or personal property.
Competing policy considerations Restatement- A good Samaritan acting reasonably to defend a third party has behaved without fault. Utilitarian approach- good Samaritan can help before cops arrive, but the innocent party may be subjected to misdirected force instead of the wrong doer.
Reasonable force Only reasonable force can be exercised in the protection of property.force to cause death or serious injury is never reasonable to protect property.
Force against a privileged party A reasonable mistake that an individual is not privileged to intrude or use property is not an excuse unless the victim intentionally or negligently causes the actor to believe the intrusion is unprivileged.
Defense of habitation Supreme court- recognizes that there is no stronger area of privacy than an individual's home; Restatement- authorizes the use of deadly force when needed to prevent any breaking and entry into the dwelling;
Current view of using deadly force or serious bodily harm Is not justified unless the intruder threatens the occupants safety by committing or intending a dangerous felony.
Mechanical devices Mechanical devices intended to inflict serious injury or death to protect property is severely discouraged by the court.
Recovery of personal property An individual may use reasonable force to recover property when in hot pursuit of the wrong doer.
Rules for when in hot pursuit of recovery of personal property Directed at the actual wrong doer, The individual acts at her peril, Merchant's privilege.
Merchant's privilege Merchant's privilege allows stores to use reasonable force to detain a person for a reasonable period to conduct reasonable investigation for a possible theft. Note: never deadly force to recover property.
Necessity A defense which allows the defendant to interfere with property interest of an innocent party in order to avoid a greater injury.
Two types of necessity Private necessity, Public necessity
Private necessity An individual has the privilege to interfere with the property rights of another to avoid a greater harm, but must compensate the plaintiff.(incomplete privilege)
Public necessity llows the appropriation or injury of an innocent party's property to avoid more substantial harm.Note: no liability is incurred (complete privilege)
Intentional injury and killing Dictum concluded that if a fair lottery had been used the killing of some to save more would be justified.
Elements of Negligence Duty, Standard of Care, Breach of Duty, Cause-in-Fact, Proximate Cause, Damages
Duty a legally recognized relationship between the parties
Standard of Care the measure of the duty owed
Breach of Duty failure to meet the standard of care
Cause-in-Fact plaintiff's harm must have the required nexus to the defendant's breach of duty
Proximate Cause there are no policy reasons to relieve the defendant of liability
Damages the plaintiff suffered a cognizable injury
The Reasonable Person Standard commands the defendant to act as would a reasonably prudent person in the same or similar circumstances.
Characteristics of the Reasonable Person possesses those attributes that a jury decides represent the community norms, possess the weaknesses and frailties acknowledged in others in the community, has the knowledge and understanding generally held by members of the community that is relevant.
Flexibility in the Reasonable Person Standard Emergency, Physical Conditions, Mental Conditions
Emergency Restatement - an event that requires a decision within an extremely short duration and that is sufficiently unusual so that the actor cannot draw on a ready body of personal experience or general community knowledge as to which choice of conduct is best.
Physical Conditions The defendant's own physical qualities may be taken into account by the jury in the breach determination such as loss of limb.
Mental Conditions The insane are held to a standard of sanity, because the reasonable person is deemed sane. Similarly people with cognitive disabilities are held to a level of normal intelligence.
The Child Standard of Care Most jurisdictions hold children to a variation of a standard that compares their conduct to other children of the same age, experience, and intelligence under like circumstances.
4 standards of care Reasonably prudent person under same or similar circumstances, Standard of care that applies to children, Negligence per se or statutory standard of care, Standard of care that applies to professionals.
Created by: Rochelle28nm
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