Torts (2005 Fall)
II. PRIVILEGES AND DEFENSES
- General Characteristics
- Defendant has the burden of proof.
- Defenses are usually (but not always) complete.
- Complete - self-defense; defense of property; contributory negligence
- Incomplete - privilege of necessity; comparative fault
- Ordinarily only triggered after establishing prima facie case.
- Condition to consent can overcome defense. [Ashcraft]
- Collateral mater, a condition for consent that has no bearing on the procedure in question, cannot overcome defense.
- Boxing [Hudson v. Craft]
- Majority – consent is invalid because breach of peace injures the state as a third party
- Minority – consent is valid unless the purpose of the statute is to protect people from their own bad judgment; arguments:
- Economic – If boxers can’t sue for damages, there would be less incentive for boxers to indulge.
- Moral – Let people do what they do, since nobody else is being hurt.
- Administrability – If boxers can sue every time despite giving consent, there would be a flood of lawsuits.
- Volenti non fit injuria – “To the willing, injury is not done”; personal choice
- Other exceptions
- “Consent to sexual intercourse cannot be equated to consent with a vile and loathsome disease.” [Hogan v. Tavzel]
- Infidelity does not affect the essential character of the contact itself, so consent is valid. [Neal v. Neal]
- Patients’ consent to treatment by dentist with AIDS, which he failed to disclose, bars recovery in absence of proof of exposure. [Brzoska v. Olson]
- Self Defense and Defense of Others
- Acted honestly in using force
- Fears were reasonable under the circumstances
- Force was reasonable under the circumstances
- Reasonable mistake is excused.
- Defense of Property
- Force allowed
- Assault – because there is no contact
- Imprisonment – only for chattels (see “shopkeeper’s privilege”)
- Only that amount of force reasonably necessary
- No privilege to use any force calculated to cause death or serious bodily injury to repel the threat to land or chattels, unless there is also such a threat to the defendant’s personal safety as to justify a self-defense. [Katko v. Briney]
- Use of a pit bull in protecting realty allowed because the purpose includes deterrence, not just injury.
- Official Privilege
- An officer of the law, acting as an agent of the state, may inflict violence in order to effectuate an arrest.
- Tennessee v. Garner – An officer may not use deadly force to apprehend a fleeing suspect unless there is:
- Probable cause of felony; and
- Threat to the safety of officer or danger to community if left at large.
- Reasonably mistaken belief that suspect is reaching for a handgun excuses deadly force. [Anderson v. Russell]
- Defendant must face a necessity [Ploof v. Putnam]
- The value of the thing preserved must be significantly greater than the harm caused
- Even though the trespass is privileged, defendant must pay for the harm caused. [Vincent]
General Average Contribution (GAC)
The master of a ship can make it his privilege to jettison cargo in order to preserve the ship and the people and other property on his ship.
Container Owned by Value of Contents A Competitor of ship owner $100,000 B One-time customer of ship owner $80,000 C Long-term customer $25,000 D Ship owner $20,000
Others share in the loss, so the ship owner won’t have to bear the loss alone, and the socially desirable outcome is obtained.