Affirmative Defenses

I. Self–Defense
A. Rules:
1. Reasonable imminent apprehension of harmful or offensive battery
. Believer need to be correct, just reasonable (MAJ) (Courvoisier)
. Threat of force must be sufficiently imminent
2. Only reasonable amount of force used
. Force may be used to prevent imminent harm but not to retaliate
or get revenge
B. Considerations
1. Duty to Retreat:
. (MAJ)No duty to retreat for deadly force
. (MIN) Duty to retreat if not in home and if safe to do so before
using deadly force
2.
. Castle Doctrine:
. (MAJ) Don't have to retreat unless there is fear of serious bodily
harm
. (MIN) Can use deadly force at
home/business/vehicles/workplace
. Some states eliminated fear for safety
. Modern weapons make retreat obsolete
3. Mistake privilege: if mistakenly use more force than warranted, only
liable for exacerbated injury
4. Transferred intent: privilege carried over if use of force justified
5. Reasonable Mistakes: an excuse for fault
. privilege exists when defendant reasonably believes that force
necessary to protect themselves or amount of force mistake
protects
C. Deadly Force in Self–Defense
1. (MAJ) Deadly force only reasonable if fear of forcible felony (death or
serious bodily harm)
2. (MIN) Retreat first before deadly force if safe to do so and not in harm
II. Defense of Others

III. Consent
A. Expressed Consent General Rules
1. Objective Consent Test: Victim must manifest consent by
a. objective manifestation (apparent consent)
 b. subjective action
i. (MAJ) ask for reasonable person
ii. (MIN) ask plaintiff what they would have done
c. silence where social customs apply (prior relationship,
i. (MAJ) Defendant privileged to make contact where
plaintiff’s words, gestures, or conduct reasonably
manifest consent to it, regardless of secret wishes
(O’Brien v. Cunnard).
2. Implied Consent Test: Action must be in scope of consent.
a. Can impliedly consent to harmful contact but not to
“conduct that is so reckless as to be totally outside the
range of the ordinary activity involved in the sport”
(Hackbart v. Cincinnati Bengals).
B. Consideration
a. Was it based on misunderstanding, duress, or fraud?
i. MAJ: Consent based on fundamental misunderstanding,
duress, or fraud is vitiated because plaintiff did not
appreciate true nature of contact and did not meaningfully
consent to it.
b. Was person incapacitated in any way?
i. MAJ: Where legislature bars conduct to protect
disadvantaged class, plaintiff’s actual consent cannot create
privilege (Barton v. Beeline–MIN). Conduct prohibited
regardless of consent, since person cannot consent, and
defendant is liable.
I. Consent to Medical Treatment
A. General Rules
1. Consent must be given after full disclosure of facts and risks.
. Informed Consent:
1) Failed to adequately inform OR patient informed adequately
and not consent
2) Injury resulting
2. Consent cannot be given under misrepresentation, fraud, or duress.
3. Action must be in scope of consent.
B. Considerations
1. Extension Situations
. (MAJ) May perform standard medical care and external surgery
without patient’s consent only if:
1) no relative around (substituted consent/proxy decision–
maker)
2) Sound professional judgment of doctor
3) Reasonable patient would consent if consulted or informed of
risks.
4) If extension is reasonable–limited privilege to extend unless
extension involves destruction of bodily function
 a) (MIN): Emergencies only
2. Emergency Privilege
. (MAJ) May perform standard medical care and external surgery
without patient’s consent only if:
1) No relative present (substituted consent/proxy decision–
maker)
2) No reason to believe particular patient would not consent if
informed of harms/risks
3) Delay would involve risk of death or serious bodily harm to
patient.
3. Refusal of Lifesaving Measures
. Courts allow refusal of treatment that will hasten death, but one
cannot consent to treatment that will hasten death.
i. MAJ)
1) Prisoners cannot refuse
2) Children may not refuse
3) People who have never been competent
ii. (MIN) MO Living Will Statute: pregnant women may not
4. Reasonable mistake: still liable for unconsented wrongful touching
(battery)