Torts Class Notes 9/9/03


How does the defense part of a torts case work?


The plaintiff has the burden to establish the prima facie case.  If the plaintiff fails to do so, the defendant can file a motion for a directed verdict.  If this motion fails, then the defendant has the burden to prove one of the defenses or disprove an element of the prima facie case.  Then it’s up to the jury to make factual determinations.


When there are words that indicate consent or lack thereof, you have an easier case to decide than if you consider the circumstances in general.


An unlawful or unreasonable demand that is made of a plaintiff will not lead us to conclude that their silent constitutes consent.


In football, you may have an intentional tort in conduct that is outside the rules or normal customs of the game.


In medicine, you consent to the procedure you consented to when you were capable of doing so.  In other words, you have to wake a patient up and make sure that they’re okay with the new, different thing you’re planning to do.


Is fraudulently obtained consent still valid consent?


De May v. Roberts


Consent which is obtained through fraud is not valid consent.


A lot of people wouldn’t consider this a battery now, but it would have been inappropriate at the time.  You must prove intent in battery, but a lack of bad intent on the part of the defendant can be overcome by an overwhelming societal opinion that the contact in question is always harmful or offensive.


Notes on De May


If you give someone some poison candy, you can be held liable for battery.  The defendant’s knowledge that the candy is poison does not eliminate the defendant’s liability.


Say A consents to sex with B who has an STD.  Is B liable to A for battery?  What if a woman misrepresents her fertility to a man, they have sex, and then they have a baby?  Let’s say she’s suing for child support.  Would her misrepresentation make a difference?  Why might we not want to get into this area?  Courts don’t like to get involves in people’s intimate relationships.  The facts are frequently fuzzy and often amount to “he said, she said”.


On the other hand, there may be public policy concerns in regard to transmission of disease, as opposed to fertility.


Usually misrepresentation of fertility or disease will result in liability to the other party.


What about a wife consenting to sex with her husband who claims the consent was obtained fraudulently because he didn’t tell her he was having an affair?  If we allowed lawsuits in cases like this, we might have a slippery slope problem.  The case in question was dismissed.


Hart v. Geysel


The plaintiff and defendant were in a prize fight and the plaintiff died as a result of the fight.  Can the plaintiff consent to an unlawful act?


There are two views.  The majority view says that both parties are liable to each other, while the minority view says neither can collect because they were both engaged in an illegal act.


The court decides that neither party is liable to each other.  The rationale for the minority view is that you need to reward the loser against the victor in order to enforce the criminal statute against the illegal conduct.


Think about the incentives that this rule would create: it gives you an incentive to know and follow the law and to avoid risky illegal activity.


The court also says that you shouldn’t profit from your wrongdoing.


At best, we can say there are two principles:


1.     We discourage illegal activity.

2.     We do not reward wrongdoers for their wrong conduct.


What incentives would the majority rule create, and why would we pick one rule over another?  What would happen in a jurisdiction with this majority rule?  Would there be more or less illegal activity?  The minority rule tends to discourage illegal activity more.  However, the majority rule might create an incentive for the winning fighter to pull back instead of risking a lawsuit for beating his opponent up too much.


The incentives are not a whole lot different between the two rules under consideration in Hart.


Notes on Hart


License requirements for boxers are meant to protect the boxers.  If they participate in illegal boxing, they can still sue because the statute was written to protect them.


The classic example of this is statutory rape.  If the purpose of a statute is to prevent a certain class of people from harm, people in that class can still sue.


A plaintiff’s consent to an illegal act is not valid if the statute against the act exists to protect him.


Sometimes your will is not free if there is a significant power differential between the parties.


You cannot rely on consent that does not reasonably appear to be freely given.


Hypos gone wild!!!




A customer swears a lot at a mechanic and the mechanic hits him.  Can the mechanic claim self-defense?  Words are insufficient provocation to trigger the privilege of self-defense.  Language doesn’t constitute assault.  You must use reasonable force when using your privilege of self-defense.


You can use reasonable force in amount and duration based on the circumstances to protect your person.


The force you use must be proportional in some sense.  There must be an immediate threat of harm to trigger the self-defense privilege.  Transferred intent does not hold in self-defense situations.


Self-defense rules


1.     You can only use deadly force to counter deadly force.  Circumstances will vary: “Detached reflection cannot be demanded in the presence of an uplifted knife.”  Juries will take into account that your behavior came about during an emergency and will judge you accordingly.

2.     If you are in your own home, you have no obligation to retreat from deadly force in any jurisdiction.  In some jurisdictions, there are so-called “make my day” laws that let you use deadly force against burglars and other trespassers.

3.     There is no obligation to retreat if there is non-deadly force; you may use non-deadly force in response.

4.     There is an obligation to retreat if you’re confronted with deadly force outside your home, but the circumstances may vary.


Defense of others


Two approaches:


1.     You stand in the shoes of the person who is attacked, and thus you will be treated like that person insofar as you have exactly the same privilege as that person.  If you defend someone under attack, you have privilege, while if you defend the aggressor, you have no privilege.

2.     Some jurisdictions will allow a reasonable mistake under the circumstances.  If you tried to help the aggressor thinking that he was under attack, you may maintain the privilege.


Which rule is better?  Is it a good policy to encourage people to get involved and stop a fight?  You may not want to encourage vigilantism, and you want people to call the police.


Notes on defense of property


We generally want to discourage violence, especially against an adversary who is behaving peacefully.


We’ll do Katko next time.


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