§ 2.01 Consent [34-38]

 

            [A] Overview

 

Consent is a defense to intentional tort liability.  If the asserted victim gives permission, what would otherwise be tortious is instead privileged.  [See Restatement § 892.]

 

            [B] Express and Implied Manifestations of Consent

 

An individual can convey consent expressly in words or through pictorial gestures.  Alternatively, an individual can imply consent.  Consent is implied when, under the circumstances, the conduct of the individual reasonably conveys consent.  [See, e.g., O’Brien v. Cunard S.S. Co., 28 N.E. 266 (Mass. 1891).]

 

            [C] Consent by Law

 

Consent can also be implied by law. Generally courts recognize by law consent to emergency medical treatment by health professionals when a victim is unconscious and unable to provide consent.

 

            [D] Invalidating Manifestations of Consent

 

                        [1] Incapacity

 

Both express and implied manifestations can be held invalid.  An individual can be held to lack capacity to consent.  A child, depending on her age, may consent only to less significant matters.

 

An individual without sufficient mental capacity due to insanity or retardation may not legally consent. Incapacity can also be the result of drug ingestion (including alcohol).  [See, e.g., Bailey v. Belinfante, 218 S.E. 2d 289 (Ga. Ct. App. 1975).]

 

                        [2] Action Beyond Scope of Consent

 

Consent is also invalidated if the action goes beyond the consent manifested. What constitutes the dimensions of the consent can often be a different issue of fact.  [See, e.g., Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (10^th Cir. 1979).]

 

Since medical treatment requires consent, the determination of the effective actual consent is critical in this context.  A medical procedure without the patient's consent can constitute a battery.  [See, e.g., Mohr v. Williams, 104 N.W. 12 (Minn. 1905).]  The failure to inform the patient of risks when procuring consent is now, however, usually treated under negligence.

 

                        [3] Fraud

 

Consent is invalid if it is induced by fraud that misrepresents an essential aspect of the interaction.

 

                        [4] Duress

 

Consent procured under physical threat is invalid.  However, as a general rule, economic pressure, while coercive, does not negate consent.

 

                        [5] Illegality

 

The traditional majority rule holds that a person cannot consent to a criminal act; the consent is always invalid.  Taking the minority position, the Restatement holds that a person can consent to a criminal act for purposes of tort liability.  The consent is still valid except where the criminal law is specifically designed to protect members of the victim's class.  [See Restatement §§ 60, 61.]

 

§ 2.02 Self-Defense [38-40]

 

            [A] Overview and Definition

 

Self-defense constitutes a defense which can justify and therefore negate intentional tort liable.  In essence, reasonable force can be used where one reasonably believes that such force is necessary to protect oneself from immediate harm.  [See Restatement § 63.]

 

            [B] The Threat Must be Immediate

 

Self-defense must be in response to an immediate threat of harm.

 

            [C] The Victim's Response Must be Reasonable

 

Self-defense is only justified if the individual reasonably believes that force is necessary to avoid an unlawful attack.  [See Drabek v. Sabley, 142 N.W.2d 798 (Wis. 1966).]  The belief need not be correct, however.

 

Force intended to inflict death or serious bodily injury is only justified if the individual reasonably believes she would suffer serious bodily injury or death from the attack.

 

            [D] The Obligation to Retreat From Deadly Force

 

There is general agreement that there is no obligation to retreat from force not threatening death or serious bodily injury.

 

There is disagreement among jurisdictions whether retreat is required where self-defense would require the use of force intended to inflict serious bodily injury or death.  The traditional and still majority common law position does not require retreat, assuming the threatened individual has the legal right to be present or to proceed.

 

The minority position, endorsed by the Restatement § 70, requires retreat where serious bodily injury or death would otherwise be required in self-defense.  The minority position would not, however, require retreat from the victim's dwelling.

 

§ 2.03 Defense of Others [40-41]

 

            [A] Overview

 

A person can use reasonable force to protect a third person from immediate unlawful physical harm.

 

The modern trend and now majority view holds 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.  [See Restatement § 76.]

 

§ 2.04   Defense and Recovery of Property [41-44]

 

            [A] Overview

 

An individual is privileged to use reasonable force to prevent a tort against her real or personal property.  However, unlike self-defense, a reasonable mistake will not excuse force that is directed against an innocent party.  [See Restatement § 77.]

 

            [B] Reasonable Force

 

Only reasonable force can be exercised in protection of property.  Force intended to inflict death or serious bodily injury is never reasonable to protect merely property.

 

Even slight force is unreasonable in defense of property if it is excessive.  Consequently, if a verbal request would suffice, no force is justified.

 

            [C] Force Against an Innocent Party

 

Force in defense of property is only a defense when it is actually directed at a wrongdoer.  A reasonable mistake that an individual has wrongfully interfered with property is not an excuse.

 

            [D] Defense of Habitation

 

The modern view is that the use of deadly force or force likely to cause serious bodily harm is not justified unless the intruder threatens the occupants' safety, by committing or intending to commit a dangerous felony on the property.  [See Tennessee v. Garner, 471 U.S. 1 (1985).]  Additionally, the homeowner may not eject a non-threatening trespasser or invited guest when doing so would subject that person to serious physical harm.

 

The traditional common law view, still reflected in the Restatement, but increasingly discredited, would authorize the use of deadly force when needed to prevent mere intrusion into a dwelling.  [See Restatement § 143 and caveat.]

 

            [E] Mechanical Devices

 

Intentional mechanical infliction of deadly force, such as by the use of spring guns, is not privileged unless, in fact, such force was justified to defend oneself or another from deadly force.  [See, e.g., Katko v. Briney, 183 N.W.2d 657, 659 (Iowa 1971).]

 

Barbed wire fences and similar deterrents to enter land unlawfully are not generally perceived as intended to inflict death or serious bodily injury but are often designed only to deter entry.  Whether liability ensues depends on whether the method of protecting the property under the circumstances was negligent.

 

            [F] Recovery of Personal Property

 

An individual may use reasonable force to recover property when in “hot pursuit” of the wrongdoer.

 

The individual acts at her peril, however.  If force is directed at an innocent party, privileged to possess the chattel, or against one acting out of a bona fide claim of right, whether or not such right is ultimately vindicated by the courts, the actor is liable even if the mistake was reasonable.  [See Restatement §§ 101-104.]

 

Many states have adopted a merchant's privilege, which allows stores to use reasonable force to detain a person for reasonable periods to investigate possible theft.  [See Bonkowski v. Arlan's Department Store, 162 N.W.2d 347 (Mich. Ct. App. 1968).]  The merchant's privilege generally allows reasonable mistake, so an innocent customer cannot recover against the store, provided the store acted reasonably.

 

§ 2.05 Necessity [44-46]

 

            [A] Overview and Definition

 

Necessity is a defense which allows the defendant to interfere with the property interests of an innocent party in order to avoid a greater injury.  The defendant is justified in her behavior because the action minimizes the overall loss.  The defense is divided into two categories:  public and private necessity.

 

            [B] Public Necessity

 

Public necessity exists when the defendant appropriates or injures a private property interest to protect the community.  Public necessity is a complete defense.  [See, e.g., Surocco v. Geary, 3 Cal. 70 (1853).]

 

            [C] Private Necessity

 

Private necessity exists when the individual appropriates or injures a private property interest to protect a private interest valued greater than the appropriated or injured property.  [See, e.g., Vincent v. Lake Erie Transportation Co., 124 N.W. 221 (Minn. 1910).]  Private necessity is an incomplete defense: the defendant is privileged to interfere with another's property, but is liable for the damage.

 

            [D] Personal Injury or Death

 

An unresolved issue is whether necessity should ever justify inflicting intentional injury or even death.  Some historical precedents would so authorize.  [See, e.g., United States v. Holmes, 26 F. Cas. 360 (C.C.E.D. Pa. 1842).]  The Restatement takes no position.  [See §§ 199 and 262.]