Defenses To Intentional Torts: Chapter Objectives

Chapter 3
Defenses to Intentional Torts

 Chapter Objectives:
 Be able to explain the components of
various defenses
 Explain how and under what
circumstances a defense is triggered
 Describe how and under what
circumstances self-defense is an available
defense
 Explain how age or mistake can affect
liability analysis
 Define the insanity defense
Tort Law for Paralegals, Fifth Edition
(c) 2016 by Neal R. Bevans
What is a Defense?
 A defense can take the form of a simple

denial or a defense.
 A defense seeks to mitigate, explain
away or completely remove liability.

Absolute Defenses
 Some defenses are known as absolute

defenses, meaning that if the jury/judge
believes the defense, then the defendant
will not be liable to the plaintiff as a
matter of law.

Self Defense
 The defendant is claiming that he used

force to protect himself or someone else.

The Response Must be Equal
to the Threat
 When you are defending yourself, you
must use force that is approximately
equal to the threat.
 If you are threatened with minimal force,
you must respond with minimal force.

Limitations on Self-Defense
 Excessive force -- Force used in self

defense that is clearly disproportionate
to the threat posed by another.

No Self-Defense for
Aggressors
 People who start fights (called ‘aggressors’
under tort law) do not have the legal defense
of self-defense available to them.

Can Claim Self Defense if
Voluntarily Stopped Fighting
 A person is permitted to raise self-

defense if he/she voluntarily stopped
fighting and was then attacked.

No Self-Defense for Martial
Artists, etc
 People with special training or abilities

have a greater responsibility under the
law and less opportunity to raise self-
defense.

Claiming Self-Defense When
Defending Others
 A person can use deadly force to protect a

stranger, so long as the stranger is being
threatened with deadly force.

Other Limitations on
Self-Defense: No Deadly Force
to Protect Property
 A person cannot claim self-defense

when he/she uses deadly force to
protect property.

Mutual Combat
 Closely related to self-defense, a claim

of mutual combat is a defense that
claims the plaintiff voluntarily entered
into a fight with the defendant.

Consent
 The defense of consent is based on the

premise that the plaintiff agreed to
whatever injury he received from the
defendant.

Who Cannot Give Consent?
 Children
 Intoxicated persons
 Incompetent persons
 Unconscious persons

Duress, Necessity,
Compulsion, and Coercion
 When a defendant raises any of the
defenses of duress, necessity, compulsion or
coercion, the defendant is essentially
admitting that he committed a particular
action, but that he had no choice in the
matter.

Duress
 When a defendant pleads duress in

his Answer, he is saying that he was
forced to carry out the act because
someone was threatening his physical
safety.

Coercion
 In most situations, duress and

coercion are so closely related that there
is no essential difference between them.

Necessity
 When a defendant claims necessity, he

admits that he carried out the wrong to
the plaintiff, but he did only to avoid
some greater catastrophe.
 A claim of necessity is based on the
claim that some natural force compelled
the defendant to carry out an intentional
tort.

Compulsion
 A claim of compulsion is a form of

insanity plea; the defendant is essentially
saying that he could not prevent himself
from carrying out the intentional tort.

Intoxication
 When a person raises the claim of

intoxication, he/she is essentially
seeking to excuse behavior on the
grounds of mental imbalance.
 Intoxication is a form of insanity.
 At law there are two types of intoxication:
voluntary and involuntary

Voluntary Intoxication
 A person can’t use this defense if he/she

voluntarily got intoxicated before carrying
out the action.

Involuntary Intoxication
 When a person becomes intoxicated

without his/her knowledge or intent

Mistake
 Mistake can be a valid defense when the

defendant’s actions would have been
permissible, but for his legitimate
misunderstanding.

Age
 In almost all jurisdictions, a child under

the age of 7 is not considered to be
responsible for his actions.

Insanity
 The law will not compel a legally insane

person to be found liable in a civil suit.

Two Different Forms of
Insanity Defense
 Insanity at the time of the incident

 Insanity at the time of trial

In many jurisdictions, the standard the court
must to rule that the defendant was insane
is:
 That the defendant did not understand
the difference between right and wrong.

Immunity
 The claim of immunity is a defense that

states that the plaintiff is legally barred
from suing the defendant.

Examples of Professions that
Enjoy Some Form of Immunity
 Police officers
 Judges
 Members of the Legislature and others.

Privilege
 Privilege -- A protection or advantage

given to a class of persons for actions
taken by them.

Statutes of Limitation
 Time limits in which the case must be brought

or be forever barred.

Defenses Available to
Codefendants
 A defendant has the right to apportion blame

against a codefendant.

Joint and Several Liability
 Joint and several liability is based on the

premise that between the plaintiff and
the defendants who injured the plaintiff,
the person who should be given the
greatest consideration is the injured
plaintiff.

Vicarious Liability
 When two or more defendant contribute

to the plaintiff’s injuries, they remain
individually liable to the plaintiff for the
total amount of the plaintiff’s injuries.

Common Examples of
Vicarious Liability
 Employer/employee
 Joint enterprise
 Family purpose doctrine

Employer/Employee Liability
(Respondeat Superior)
 The theory behind employer/employee liability

is based on an ancient doctrine that said a
slave’s misdeeds could be assessed against
his master.

Respondeat Superior
 Respondeat Superior -- Liability

imposed on an employer for the actions
of the employee, when the employee is
carrying out his duties for the employer.

Limitations on Repondeat
Superior
 Employee is acting outside the scope of

employment
 Employee is on a frolic or detour
 The person is an independent contractor

Scope of Employment
 When employees are acting outside the

scope of their employment, the employer is
not responsible for their actions.

Frolic and Detour
 When a employees are on a “frolic,” they

are no longer acting for their employer;
they are carrying out personal business
or simply having fun.

Independent Contractor
 Worker has control over job duties

 Worker has discretion in how the job is
carried out
 Worker is hired to do a specific job

Other Situations in which
Vicarious Liability is Authorized:
Family Purpose Doctrine
 Although this doctrine is not recognized in all

jurisdictions, in the ones where it is, the
doctrine essentially allows plaintiffs to sue
parents for the actions of their children.

Family Purpose Doctrine
Elements
1. That the parent owns the car involved in the
accident
2. That the parent makes the car available to family
members for family use
3. That the driver is a member of the defendant’s
immediate family
4. That the driver was using the car for a family
purpose
5. That the driver had express or implied permission
to use the car
Other Situations in which
Vicarious Liability is Authorized:
Joint Enterprise
 This doctrine allows a plaintiff to bring

suit against one business partner for the
actions of the other.

Elements of Joint Enterprise
1. That there was an express or implied

agreement among the defendants to carry out
a business
2. That the defendants had a common purpose
in carrying out the business
3. That the defendants each had the right to
control the business (i.e., that one member
wasn’t an employee of the other)


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Chapter 3

Defenses to Intentional Torts

 A defense can take the form of a simple

Tort Law for Paralegals, Fifth Edition

 Some defenses are known as absolute

Tort Law for Paralegals, Fifth Edition

 The defendant is claiming that he used

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 Excessive force -- Force used in self

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 A person is permitted to raise self-

Tort Law for Paralegals, Fifth Edition

 People with special training or abilities

Tort Law for Paralegals, Fifth Edition

 A person can use deadly force to protect a

Tort Law for Paralegals, Fifth Edition

 A person cannot claim self-defense

Tort Law for Paralegals, Fifth Edition

 Closely related to self-defense, a claim

Tort Law for Paralegals, Fifth Edition

 The defense of consent is based on the

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 When a defendant pleads duress in

Tort Law for Paralegals, Fifth Edition

 In most situations, duress and

Tort Law for Paralegals, Fifth Edition

 When a defendant claims necessity, he

Tort Law for Paralegals, Fifth Edition

 A claim of compulsion is a form of

Tort Law for Paralegals, Fifth Edition

 When a person raises the claim of

Tort Law for Paralegals, Fifth Edition

 A person can’t use this defense if he/she

Tort Law for Paralegals, Fifth Edition

 When a person becomes intoxicated

Tort Law for Paralegals, Fifth Edition

 Mistake can be a valid defense when the

Tort Law for Paralegals, Fifth Edition

 In almost all jurisdictions, a child under

Tort Law for Paralegals, Fifth Edition

 The law will not compel a legally insane

Tort Law for Paralegals, Fifth Edition

 Insanity at the time of the incident

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 The claim of immunity is a defense that

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 Privilege -- A protection or advantage

Tort Law for Paralegals, Fifth Edition

 Time limits in which the case must be brought

Tort Law for Paralegals, Fifth Edition

 A defendant has the right to apportion blame

Tort Law for Paralegals, Fifth Edition

 Joint and several liability is based on the

Tort Law for Paralegals, Fifth Edition

 When two or more defendant contribute

Tort Law for Paralegals, Fifth Edition