Defenses to intentional torts - Next Generation Bar Exam

1. What is the effect of consent on an intentional tort claim?

   It is a defense if the defendant's conduct stays within the scope of the consent. Consent may be express or implied from conduct or custom.

2. What is the limit on force used to defend property?

   Reasonable force, but never deadly force solely to protect property. A request to desist is usually required first.

3. A boater docks at a stranger's pier during a sudden storm to save his life, and the boat damages the pier. What does the boater owe?

   Compensation for the damage to the pier. Private necessity is an incomplete privilege.

4. Under private necessity, what is the landowner's right to expel the actor?

   The landowner may not expel the actor and is liable for harm caused by doing so. The actor has a privilege to remain while the emergency continues.

5. What is the status of a spring gun or similar device used to protect property?

   It is not privileged when it inflicts deadly force. One may not do indirectly what one could not do in person.

6. What does the defense of others permit?

   Reasonable force to protect a third person when the defendant reasonably believes the third person could defend herself. Under the modern rule, a reasonable mistake does not defeat the defense.

7. What does self-defense permit?

   Reasonable force to prevent imminent harmful or offensive contact the defendant reasonably believes is threatened. A reasonable mistake does not defeat the privilege.

8. When is consent ineffective?

   When obtained by fraud going to the essential nature of the act, given under duress, or by a person lacking capacity. Fraud about a collateral matter does not invalidate consent.

9. What is the effect of a defendant's mistaken but reasonable belief in a defense to property torts, such as believing land was one's own?

   It is no defense to trespass to land. Intent to enter the land suffices, regardless of mistake about ownership.

10. What is the difference between public and private necessity as defenses to property torts?

    Public necessity is a complete defense; private necessity requires paying for actual damage caused. Public necessity protects the community; private necessity protects the actor or a few people.

11. When may a person use deadly force in self-defense?

    Only when reasonably believing it is necessary to prevent death or serious bodily harm. Jurisdictions differ on whether retreat is required before using deadly force, but retreat from one's home is generally not required.

12. What is the shopkeeper's privilege?

    A merchant may detain a suspected shoplifter for a reasonable time and in a reasonable manner on reasonable suspicion. It is a defense to false imprisonment.

13. A boxer is injured by a legal punch in a sanctioned match. What defense defeats his battery claim?

    Consent. Participation in a sport implies consent to contact within its rules.

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