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Welcome to my Law blog specifically intended as an aid to law students. I will post comments and white papers, from time to time, and I am happy to carry on conversations with students who are in need of help in law school.


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I am a Professor of Law at Concord Law School, an Internet Law School located in Los Angeles, though I live, teach and otherwise work out of Lakewood, Colorado, resting up against the foothills just west of Denver.

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Friday, February 12, 2010

4 - Intentional Torts - Privilges and Defenses

4 - Intentional Torts – Privileges and Defenses
 
PLEASE NOTE THAT THE FOLLOWING IS TAKEN FROM SOME OF MY CLASS NOTES, SOME OF WHICH IS MY OWN PERSONAL WORK AND SOME OF WHICH BELONGS TO CONCORD LAW SCHOOL.  IT IS POSTED TO HELP MY IL STUDENTS IN PARTICULAR.  IT CANNOT BE DISSEMINATED WITHOUT EXPRESS, WRITTEN PERMISSION.

As a general rule, privilege is a broad term for matters that justify tortious conduct. Most of the time one refers to privileges for intentional torts, primarily. I don’t think it makes that much difference and the student should be able to refer to everything as a defense.

When I teach my review for torts, I list four categories or types of defenses for intentional torts:

     1. Consent
     2. Authority
     3. Defense of
     4. Necessity

Consent can be either express or implied. There are four areas that can negate consent. (1) Lack of capacity to consent; (2) consent induced by fraud, duress or mistake; (3) exceeding the scope of the consent and (4) consent that is illegally given or obtained.

Authority is (1) the privilege to arrest (but you cannot make a mistake), (2) the shopkeeper’s privilege to detain (under the majority rule you cannot make a mistake and under the minority rule a mistake is allowable if it is based upon a reasonable belief) and (3) you can use reasonable force to discipline.

There are three parts to “Defense of.” These are (1) Self (defense of self – self-defense), (2) Others (defense of others) and (3) Property.

Self-defense requires reasonable belief and reasonable force, though there is generally no obligation to retreat. Defense of others is pretty much the same as self defense. Defense of property is again, pretty much the same as for self-defense except that you must use reasonable non-deadly force.

Necessity (public and private) is used for interference with property rights. PRIVATE NECESSITY is the privilege to interfere with the property rights of another to avoid a greater harm. It is an incomplete privilege which means that the interferer must still compensate for the interference, but is protected from the force used by another to prevent use of the privilege.

PUBLIC NECESSITY is the privilege to interfere with the property rights of another to avoid a more substantial public harm. It is a complete privilege which means that there is no liability for inflicting private loss.

Professor Doug Holden
© 2010 Douglas S. Holden. All Rights Reserved.

2 comments:

  1. Who has access to the authority defenses? Only a cop or can even an ordinary person have the authority to use reasonable force to discipline? What act(s) might be considered "reasonable force to discipline?

    ReplyDelete
  2. Any defendant can asset a defense and this is true for "authority." Police officers have the authority to arrest with a warrant so long as the warrant is fair on its face and excessive force is not used. They can arrest without a warrant under a variety of circumstances - generally to protect the public.

    A private party may arrest if one is actually guilty of a felony. The traditional rule for private parties is that one is privileged to arrest when (1) the plaintiff has in fact committed a felony or (2)where the defendant reasonably suspects the plaintiff has committed a felony or (3) where the defendant observes a breach of the peace by the plaintiff.

    Some jurisdictions do not allow a private party to be mistaken in his belief and he would be liable in tort, then.

    A parent or one in a recognized position of authority may reasonably discipline a child at common law, but most jurisdictions have statutes limiting this authority.

    Reasonable force is just that - whatever is reasonable under the circumstances. The facts of each case would determine what is reasonable - though again, this concept is limited by modern statute in most jurisdictions.

    I hope this help you out.

    Professor Holden

    ReplyDelete