Defenses to Intentional Torts to Avoid Liability

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  • 0:05 Defenses to…
  • 2:14 Consent and Necessary Defenses
  • 5:07 Lesson Summary
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Lesson Transcript
Instructor: Kat Kadian-Baumeyer

Kat has a Master of Science in Organizational Leadership and Management and teaches Business courses.

An intentional tort is committed when a defendant interferes with another person's rights. There are times when a defendant can successfully mitigate liability by using one of several affirmative defenses.

Defenses to Intentional Torts to Avoid Liability

Let's say you are walking down a dark street and you suddenly feel the presence of a stranger following you. Then, without warning, he places his hand on your shoulder. Lock and load - you pull out your pepper spray and give him a long blast to the face and eyes.

The stranger may cry battery, but that won't get him very far. Battery means that there is an intent to cause bodily injury, and perhaps the pepper spray did cause injury.

Does that make you completely liable for battery? Not really! The law also states that there are several defenses used to defend intentional torts and reduce liability:

  • Self defense and defense of others
  • Defense of property
  • Consent
  • Necessity

The law allows a person to act in self defense or defense of others if the person believes they are in imminent danger of physical harm and the physical defense must be reasonably necessary and not excessive. In the case of the stranger following you, the court would likely find pepper spray a reasonable defense against the stranger's touch.

Defense of property also allows for the use of reasonable force to stop a person from stealing or using private property. The courts do not favor the use of deadly force in property protection.

You will notice in each type of defense, reasonable force is permitted. Generally, this means force necessary to take back property or defend oneself without unreasonable measures, like taking a life.

However, there are times when the court will allow for deadly force. There are a few elements to consider:

  • The violation to person or property was committed using violent force
  • The retaliating force is necessary to stop a felony

So, if an armed person unknown to you enters your home through a window and you kill or seriously injure him, the court will look at the nature of the break-in and whether it was reasonable for you to fear for your own safety and the safety of others in the house. In this case, you would probably be justified in your actions.

Consent and Necessity Defenses

Unlike self defense and defense of property, two defenses that can be used to reduce risk do not involve violence.

Consent means permission was given by one person to another to do something that may ordinarily be considered illegal or wrong.

This may help. Suppose a stranger approaches you with what they claim to be a winning lottery ticket with $500. The stranger asks you to give him $100 for the ticket and you may keep the rest upon cashing it in. It sounds like a great deal, and you proceed with the transaction.

When you get to the lottery redemption center, you find that the ticket is actually not a winner and you are out $100 to the less-than-honest stranger. What makes this even more unfortunate than losing a bunch of cash is that the court may look at this as a consensual transaction!

Necessity can be used as a defense when a defendant takes control of another person's property, because taking the property served a greater benefit to the defendant, community or the defendant's property.

Two categories that may help to explain this defense:

  • Public necessity
  • Private necessity

In a public necessity defense, the defendant may claim his actions were justified because it served the community as a whole.

Think about a burning kitchen in an apartment building. The fire department may cut through the front door and use excessive force on walls and cabinetry to control the flames. They may also spray down walls with water, causing stains and even damage.

The owner of the apartment may not be able to recover for damage sustained to the personal property or the apartment itself because it was a public necessity to control and extinguish the fire. After all, the fire could have spread to other units, causing a major disaster for the community.

A private necessity is similar in theory. The difference lies in the completeness of the defense. To say it a different way, in a public necessity defense, a defendant may claim that using a private person's property was necessary to avoid further damage to his own.

To make sense of this, let's use an example.

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