Outline - Torts - II - Privileges and Defenses

Torts (2005 Fall)

II. PRIVILEGES AND DEFENSES

1. General Characteristics
   1. Defendant has the burden of proof.
   2. Defenses are usually (but not always) complete.
      1. Complete - self-defense; defense of property; contributory negligence
      2. Incomplete - privilege of necessity; comparative fault
      3. Ordinarily only triggered after establishing prima facie case.

   Complete Defenses

2. Consent
   1. Condition to consent can overcome defense. [Ashcraft]
   2. Collateral mater, a condition for consent that has no bearing on the procedure in question, cannot overcome defense.
   3. Boxing [Hudson v. Craft]
      1. Majority – consent is invalid because breach of peace injures the state as a third party
      2. Minority – consent is valid unless the purpose of the statute is to protect people from their own bad judgment; arguments:
         1. Economic – If boxers can’t sue for damages, there would be less incentive for boxers to indulge.
         2. Moral – Let people do what they do, since nobody else is being hurt.
         3. Administrability – If boxers can sue every time despite giving consent, there would be a flood of lawsuits.
         4. Volenti non fit injuria – “To the willing, injury is not done”; personal choice
   4. Other exceptions
      1. “Consent to sexual intercourse cannot be equated to consent with a vile and loathsome disease.” [Hogan v. Tavzel]
      2. Infidelity does not affect the essential character of the contact itself, so consent is valid. [Neal v. Neal]
      3. Patients’ consent to treatment by dentist with AIDS, which he failed to disclose, bars recovery in absence of proof of exposure. [Brzoska v. Olson]
3. Self Defense and Defense of Others
   1. Elements
      1. Acted honestly in using force
      2. Fears were reasonable under the circumstances
      3. Force was reasonable under the circumstances
   2. Reasonable mistake is excused.
4. Defense of Property
   1. Realty
   2. Personalty
   3. Force allowed
      1. Assault – because there is no contact
      2. Imprisonment – only for chattels (see “shopkeeper’s privilege”)
      3. Only that amount of force reasonably necessary
   4. 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]
   5. Use of a pit bull in protecting realty allowed because the purpose includes deterrence, not just injury.
5. Official Privilege
   1. An officer of the law, acting as an agent of the state, may inflict violence in order to effectuate an arrest.
   2. Tennessee v. Garner – An officer may not use deadly force to apprehend a fleeing suspect unless there is:
      1. Probable cause of felony; and
      2. Threat to the safety of officer or danger to community if left at large.
   3. Reasonably mistaken belief that suspect is reaching for a handgun excuses deadly force. [Anderson v. Russell]

   Incomplete Defenses

6. Necessity
   1. Elements
      1. Defendant must face a necessity [Ploof v. Putnam]
      2. The value of the thing preserved must be significantly greater than the harm caused
   2. Even though the trespass is privileged, defendant must pay for the harm caused. [Vincent]

   3. 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.