Defenses to Intentional Torts - How and When Should They Be Considered and Applied?

There are some intentional tort defenses that we should always consider when analyzing an MBE or an MEE question / issue.  NOTE – It behooves us to ALWAYS anticipate ALL defenses on an MEE, if not too attenuated from the overall issues.  If the question asks us “Will the Plaintiff be successful with their negligence claim against Defendant?” we should always consider comparative / contributory negligence, a defense assuredly to be raised by the defendant.  Turning back to intentional torts, if the question is asking us about trespass, we should have in the back of our mind the defenses of public or private necessity.  An MBE or MEE question may ask us about battery, and we should consider whether self-defense or defense of others is appropriate.  Let us look at some of the defenses to intentional torts:

 Necessity

The defense of necessity can be used against actions for trespass to real or personal property and conversion. It may apply when the defendant is asserting that taking or using another’s property is necessary to prevent greater harm to the defendant, the defendant’s property, or others. These cases are generally initiated when the plaintiff seeks compensation for damages to property. To succeed, the defendant must show that the damage to the property was less than the value of the damage that would have been had the plaintiff’s property not been used.

 There are two types of necessity defences: public and private. Public necessity applies when someone damages another’s property to benefit the community. Private necessity applies when someone takes or damages another’s property to prevent harm to his own property. While the defense precludes a finding that the conduct was wrongful and certainly precludes punitive damages, the defendant may be liable for damage to the plaintiff’s property.  The defendant may be liable for actual damages, where applicable.

 Consent

At the outset, the defense of consent applies to all intentional torts.  Consent is another common defense to intentional torts. It asserts that the person affected by the tort gave permission to the tortfeasor to engage in the otherwise wrongful conduct.

 There are three types of consent: express, implied, and assumed. Express consent occurs when the consent is clearly communicated by the victim verbally or in writing.  Implied consent occurs via actions or silence. For example, going into a doctor’s office and exposing your arm when the doctor is giving injections implies consent to be stuck with a needle.  Similarly, participating in a boxing match implies consent to be punched while participation in a football game implies consent to be tackled or blocked. It does not, however, imply consent to violence clearly outside the scope of the game even if it occurs during the game.

 Lastly, assumed consent may arise when the injured party has given consent in the past, which gives the accused tortfeasor a reasonable belief that the party is consenting again.

 Another type of consent defense deals with the tort of false imprisonment, which involves the restraining or confinement of a person.  Voluntary consent to confinement can effectively nullify a claim of false imprisonment.

 Self Defense

Self-defense applies primarily to the torts of assault and battery. While the specific elements of self-defense may vary by state, they are generally similar in the necessary requirements. Under California law, self defense is defined as 1) a reasonable belief regarding an imminent danger of being killed, injured, or touched unlawfully, 2) a reasonable belief that use of force is necessary to prevent the harm from occurring, and 3) the use of no more force than what’s necessary to prevent the harm. As exemplified by the language of the statute, “reasonableness” is an important aspect of self-defense. When making these determinations about the reasonableness of a defendant’s belief, courts use an “objective reasonable person” standard, which means that the court determines whether an objective and reasonable person would have acted similarly under comparable circumstances.

 The presence of a real and imminent danger is another vital part of self-defense, meaning that the perceived harm is present and immediate. Fears of future harms or threats are typically insufficient to meet the required elements of self-defense.  The second prong of self-defense centres around the reasonable belief that force is necessary to prevent the harm.

 The third element of a self-defense requires proportionality in the level of force used. For example, when faced with the imminent harm of a fist fight, it is proportionate to defend yourself with your fists. Defending yourself by firing a gun is disproportionate.  The force used in self-defense also must be limited to a reasonable duration, meaning that the defending force cannot unreasonably continue after the threat has dissipated.

 Defense of Others

A Defendant claiming defense of others must show that there was proper timing meaning that he or she “must act in response to a threat that is in PROGRESS or imminent (heat of moment is fine)” and also, invoking this privilege must be with a reasonable belief that that the threat is genuine. NOTE – You will NOT lose the possibility to invoke this defense if you make a reas mistake.

 Now, assuming we meet the two elements above, how much force can we use?  The amount of force necessary but not more and if you use excessive force, you revert to being in a position of being liable!

 Defense of Property

Defense of property is another defense that may be asserted against an intentional tort claim of assault or battery. To be successful, the defendant must show that the force was used against a wrongdoer (generally, a thief), and that the amount of force used was reasonable to protect the property. Deadly force may never be used to protect property unless there is also a danger to the defendant or others on the property.

 Justification (Recently Added / Tested -February 2022)

 Justification, sometimes referred to as privilege, is a defense used under circumstances where a defendant's tortious act stemmed from an interest of social importance, meaning that is an interest that society wants to uphold and protect against punishment.  This same justification may be used to defend a civil allegation of false imprisonment. Several states have statutes that shield parties from false imprisonment liability when the person restrained is a child and a parent, guardian, or other person responsible for the general supervision of the child’s welfare has consented to the restraint; or the actor is a relative of the child; and the actor’s sole purpose is to assume control of the child. 

 Conclusion

It is extremely important to understand the definitions of these intentional tort defenses but more specifically, when they apply!  Success on the likely 3-4 MBE questions in this area of law, and perhaps success on a Torts MEE issue depends on your knowledge of the law. For more information concerning this section of Tort law, another area of Tort law, or a different legal topic tested on the UBE, please do not hesitate to contact us at PassYourBarExam@gmail.com