Chapter 4

DEFENSES TO
INTENTIONAL TORTS

This chapter discusses various defenses that D may raise to P’s claim that an intentional tort has been committed. Here are the main defenses considered in this chapter:

• Consent:  Under the defense of “consent,” if P has consented to an intentional interference with his person or property, D will not be liable for that interference. This consent may be either express, or may be implied from P’s conduct or from the surrounding circumstances.
• Self-defense:  A person is entitled to use reasonable force to prevent any threatened harmful or offensive bodily contact, and any threatened confinement or imprisonment. This is the defense of “self-defense.”
  • Degree of force:  Only that degree of force necessary to prevent the threatened harm may be used. (Special rules limit the use of deadly force, i.e., force intended or likely to cause death or serious bodily injury.)
• Defense of others:  A person may use reasonable force to defend another person from attack. The same general rules apply as in self-defense.
• Defense of property:  A person may generally use reasonable force to defend her property, both land and chattels.
• Recapture of chattels:  A property owner generally has the right to use reasonable force to regain possession of chattels taken from her by someone else.
  • Merchant:  Where a merchant reasonably believes that a person is stealing his property, most states give the merchant a privilege to temporarily detain the person for investigation.
• Necessity:  Under the defense of “necessity,” D has a privilege to harm the property interests of P where this is necessary in order to prevent great harm to third persons or to D herself.
• Arrest:  The police or a private citizen are entitled to make an arrest depending on the circumstances. This arrest may be with or without a warrant. Only that degree of force that is reasonably necessary may be used.
• Justification:  Even if D’s conduct does not fit within one of the above narrow defenses, she may be entitled to the general defense of “justification,” a catch-all term.