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The Far Side of the Coin: Classic Defenses to Intentional Torts

INTRODUCTION

The preceding chapters describe the elements a plaintiff must prove in order to recover for various intentional torts. These elements, it is said, are necessary to establish a “prima facie case,” that is, a showing sufficient to allow a jury to conclude that the tort has been committed. However, the case is not over once the plaintiff has presented evidence to establish these prima facie elements. The defendant must be heard from, and very likely, she will offer another side to the story.

The defendant may defend by simply negating one or more of the prima facie elements of the tort. For example, she may present evidence in a battery case that she never touched the plaintiff, that she did so unintentionally, or that the touching was not one that the reasonable person would find offensive under the circumstances. In other cases, however, the defendant takes the position that, even if the prima facie elements of the tort are shown, she is not liable anyway, because of additional facts that allow her to avoid liability. Such additional facts are often referred to as affirmative defenses.

Some affirmative defenses have nothing to do with the underlying incident itself. For example, if Jones sues Smith for battery, Smith might defend on the ground that the claim is barred by the statute of limitations, the statutory period within which suit must be brought on a claim. This defense asserts that, even if Jones can prove that Smith intentionally inflicted a harmful or offensive touching on her, she is not liable, because the suit was brought too late. Or, Smith might plead that Jones had signed a release from liability (a contractual agreement not to sue on the claim, usually given for a sum of money paid in settlement). Again, this defense does not rely on a showing that no battery occurred, but rather on additional facts that demonstrate that there is no longer a right to sue for the claim.

Other affirmative defenses, however, relate more directly to the events that give rise to the claim. The classic example is self-defense. In Jones’s action for battery, for example, Smith might plead that she hit Jones because she was warding off a blow from Jones. If she acted in self-defense, she was privileged to inflict the harmful or offensive touching on Jones, and will not be held liable for doing so.

Another common affirmative defense to intentional tort is consent. Courts generally hold that the victim’s consent bars recovery for touch-ings that would otherwise constitute batteries. If Jones proves that Smith slapped her in the face, Smith might plead that she and Jones were rehearsing for a play, and that Jones consented to the slap as part of the script. If this is true, Smith’s act was privileged; she will not be liable even if the slap was offensive and intentional.