Privilege – Torts I Outline

Consent

Consent is a defense applied in intentional tort cases that can be expressed or implied through prior dealings, actions, or circumstances.

Medical care providers may act in the absence of express consent if:

The patient is unable to give consent. (unconscious, intoxicated, mentally ill, incompetent)
There is a risk of serious bodily harm if treatment is delayed.
A reasonable person would consent to treatment under the circumstances.
The physician has no reason to believe this patient would refuse treatment under the circumstances.

Consent obtained by fraud is not consent.

The fraud must pertain to the essential nature of the thing consented to.

Under the majority rule, a person cannot consent to an illegal act.

The minority rule and the Restatement state that consent is a defense to an illegal act.

Shopkeeper's Privilege

A shopkeeper has the privilege to detain a person for a reasonable investigation when he reasonably believes that person has shoplifted.

A investigation's reasonableness is determined by whether it was inside or outside, how long it lasted, and what the shopkeeper did to investigate.

The majority rule says that a shopkeeper cannot condition release on confession to the crime or payment.

Reasonable force, short of bodily harm, may be used to detain the suspected shoplifter.

Necessity

Necessity is a privilege that allows for trespass or destruction of property to preserve a greater interest.

There is public necessity and private necessity.

Public Necessity

Public necessity is a privilege that allows for trespass or destruction of property to avert an apparent public disaster.

Public necessity requires an imminent danger and a real public necessity.

Plaintiff cannot recover if there was a public necessity unless the tort constituted a taking.

Private Necessity

Private necessity allows for the destruction of another's property to preserve one's own property.

Private necessity allows for recovery of actual damages, but not for trespass.

Authority of Law

Authority of law is a privilege for tortious conduct when the defendant is authorized by law do the conduct.

Authority of law is not a valid defense if excessive force is used in carrying out the conduct.

Discipline

A number of relationships in which the necessity of some orderly discipline give person who have the control of others the privilege of exercising reasonable force and restraint upon them.

What force is reasonable is determined by the child's age, sex, and the seriousness of the behavior.

Justification

The privilege of justification is a generic term for a defense to a tort in circumstances where it would be unfair to hold defendant liable when no traditional defense applies.