Privileges And Defenses Outline

Privileges/Defenses

Sometimes a defendant may escape liability for what would otherwise be a valid case for the plaintiff.

The defenses provided by these circumstances are called:

Privileges-

Conduct which would normally be prohibited but, under the circumstances, is permitted.

Privileges come into play after the plaintiff has shown a prima facie entitlement at the first stage.

The defendant bears the burden of both producing proof to support the privilege/defense and persuading the trier of fact of its validity.

The exception to the rule is Consent.

1. Consent

Operates to eliminate the plaintiff’s prima facie case, rather than operating as a logically separate affirmative defense.

One consents to the acts of another, or to the consequences of those acts, if one is subjectively willing for that conduct or those consequences to occur.

Volenti non fit injuria: to one who consents, no wrong is done.

Meaning of Consent=Restatement 2^nd §892

1. Consent is willingness in fact for conduct to occur. It may be manifested by action or inaction and need not be communicated to the actor.

2. If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact.

In sports: Implied consent only where not conduct that is so “reckless” as to be totally outside the range of the ordinary activity involved in the sport. (stomping on heads prob not okay).

Informed Consent: As for contracts, courts look at whether the contract is merely one factor to consider in determining whether the patients consent to treatment was truly informed. (medical consent forms)

2. Self-Defense

Self-defense is the most significant nonconsensual privilege in tort law.

Ex. A defendant’s reasonable belief that a gun was real gave him the right to respond in reasonable self-defense.

Restatement:

1. Deals with privilege to use reasonable force not intended or likely to cause death or serious bodily harm

2. Deals with privilege to use deadly force or force intended or likely to cause death or serious bodily harm. (only avail when harm to him can only safely be prevented by immediate use of such force).

Excessive force is not privileged. Only that which is necessary to defend self.

3. Defense of Others

American courts have extended a privilege to actors who intervene and use force to protect and defend others from threats and attacks by 3^rd persons. (basically same as self-defense and to same extent).

When a mistake of defense of others is made some courts allow privilege and others don’t. (must be reasonably sure harm is being done to other person defending.)

4. Defense of Property

There is a belief in the need for a standard of...

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