DEFENSES:

Self Defense
Can use self-defense if actor reasonably believes it is necessary to protect oneself
against harmful or offensive bodily contact and against confinement.
-Reasonable at the time. It can be mistaken, look at it from the actor’s
viewpoint.
-Defendant has burden of proof
-There must be reasonable amount of force that a reasonable person would
ascertain. The circumstance is what matters…the reasonable threat.

Reasonably deadly force: when the actor reasonably believes that the other persons
conduct will result in either death or serious bodily harm.

Excessive Force: Unprivileged, only relates to reasonable limit. Beyond this limit the other
party has the privilege of using this defense.

Duty to retreat: If a reasonable means to retreat exists, instead of using deadly force, then
must do so. If reasonably and safely can do so.

Defense of third person: In general one may defend others on same basis that he may
defend oneself.

Arrest and Detention

Peterson v Menard
Detention must be reasonable. Law intended to allow merchants to follow suspected
shoplifters off of store premises in order to detain. Pursuit is permitted as long as it meets
the three reasonableness requirements. Policy reasons support this determination,
including increased costs that would be passed on etc.

Defense and Repossession of Property

One is privileged to use only that force reasonably necessary to defend ones property.
Deadly force generally can only be used in defense of one’s own dwelling, and some courts
further restrict it to situations where invasion appears to threat death.

Katko v Briney
Landowner set up a spring trap shotgun. This is not allowable because a landowner cannot
mechanically do what he could not do in person. No right to kill on behalf of property,
unless self-defense or another privilege is involved.
Brown v Martinez
Shotgun shot in opposite direction to scare off trespassers but inadvertently injured P. Is
injury resulting from the use of force such as rifle to prevent a trespass or loss of party
actionable? Yes. A force used must be appropriate to defense of the property. Human life
too important. Since D never felt his safety threatened, he acted improperly. Comes down
to lack of privilege.
Consent
Will exonerate liability from a tort which normally on its face would give rise to tort
liability. Burden on defense to prove existence of it.

Manifestation of Consent: Consent may be express or implied. Express is when words or

conduct intentionally indicated Plaintiff is willing to permit invasion of her rights. Implied
is where plaintiff acts in such way that would be understood by a reasonable person to be
consent. Or implied-in-law, where circumstances create privilege (doctor ER care). If
plaintiff did not subjectively consent, but the defendant reasonably believed she did, then
would not satisfy the double intent.
-Silence may or may not be consent. Reasonable standard.
-Mistake of fact: does not exonerate the consent. Where P eats candy, but it is
poisoned, P did not consent to the poison.

Robbins v Harris
Consent does not extend to persons in authority over others. Prison guard believed inmate
consented to sex, but this was not valid since she was not in a position to offer consent.

Kennedy v Parrott
Lack of consent does not extend to surgeons who are proactive in operations beyond the
initially expressed consent of a particular function. Court ruled that doctor did not go
beyond scope of implied consent because it was a general consent. This was an older case
from 1956, which takes into account the different culture of the time. Patient was
unconscious at the time and unable to provide consent. Normally specific controls the
general.

Doe v Johnson
One who knows he has a venereal disease and knows that his sexual partner does not know
of his infection commits a battery by having sexual intercourse.

Consent by fraud: Not consent at all.

Revocation of consent: P can revoke consent at any time by communicating revocation to D.

Privileges not based on Plaintiff’s Conduct:

Public Necessity/Right: exists to enter land or interfere with chattels of another if
reasonably necessary or if reasonably appears necessary to avert public disaster:
A) an immediate and imperative necessity an not just one that is expedient or
utilitarian
B) an act that is in good faith, for the public good.
Extent of privilege: complete privilege. Not liable for any damage or destruction
1) Damage to improvements. D is completely privileged to break and enter fences
and any building, including dwellings.
2) Force to the person. If the property owner resists the D’s attempt to enter land
or deal with chattels, the D may use whatever force is reasonably necessary to
effect the privilege, including deadly force if necessary.
 3) Who may claim privilege: no distinction between public officers and private
citizens in exercise of privilege.
Surocco v. Geary
Blowing up another’s house in order to stop a fire is justified based on the public good. A
house that could serve to propel the fire is a nuisance that D could abate. P’s private rights
must yield to the interests of society. Does not have to pay because public necessity.

Wegner v Milwaukee
P’s house was practically destroyed by police in search of fugitive. Ruled that such actions
constituted a “taking,” and that damages were liable. Damage was result of public use
within constitution. Once a taking is found, compensation is required by operation of law.
This was not considered public necessity. If public necessity were to apply, no taking could
be found under the state constitution. Centers around question if it is fair to allocate entire
risk of loss to innocent homeowner for good of the public. However MN has a generous
clause.
-Public Benefit: If public benefits then it should pay.

Private Necessity
When there is no public interest involved and the D acts to protect her own interest, she is
not liable for the technical tort and the landowner has no privilege to expel her. Narrower
then the public one.; landowner may recover any damages cause by exercise of the
privilege.
Ploof v Putnam
Found for Ploof and his boat because threatened loss of property and life gave rise a
necessity, justifying entry upon Putnam’s land. This is necessity for something that would
otherwise be a trespass.
Vincent v Lake Erie
Barge damaged dock to which it was attached in a storm. It was held that it must be liable
for the damages that occurred even though it was a private necessity. This is because the
damage occurred due to D’s actions, within its realm, not natural forces. It was deliberate
availment.

NEGLIGENCE
Any conduct, except conduct recklessly disregardful of an interest of others, which falls
below the standard established by law for the protection of others against unreasonable
risk of harm.
Elements:
i. An act or omission of the defendant
ii. A duty owed by the defendant to exercise due care
iii. Breach of the duty by the defendant
iv. A causal relationship (both actual and proximate cause) between the
defendant’s conduct and the harm to the plaintiff
v. Damages
1. Burden of Proof. Each of the above elements must be alleged by the plaintiff, who
has the burden of proving the allegations by a preponderance of the evidence. Each
of these elements will be discussed in detail below.
 2. Act or Omission. As in intentional torts, the act of the defendant must be the
external manifestation of his will, i.e. volitional movement, in order to support a
cause of action based on negligence. However, liability in negligence can also be
based on to failure or omission of the defendant to act if he is under an affirmative
duty to act.

Duty of Care
Standard of care that must be exercised is the conduct that an average reasonable
person would follow. Objective standard. Fool or expert is no difference. Exercise care
only about the kinds of harm that are foreseeable to reasonable people and risk that are
sufficiently great to require precaution.

Assessing Responsibility
1. Fault
2. Causation
3. Fixing the scope of responsibility: not liable for every harm that occurs because of
his negligence.
4. A duty to take responsibility: Although action is negligent, there was no duty for
such action to not be negligent.

Stewart v Motts
P argued that the law required a higher standard of care for handling of gasoline. Court
ruled that it did not and only required a “reasonable care.” No extraordinary standard
of care. Although when handling dangerous materials, the standard is proportional, it
still comes down to a reasonable person standard in that situation.
Element 1) was the danger foreseeable
Element 2, if it is foreseeable then what would person do, how would behave

Creasy v Rusk
People with disabilities should be held to same standard as those that are not disabled.
Policy may trump the normal circumstance.

Hill v Sparks
Actor is required to exercises the superior qualities that he has in a manner reasonable
under the circumstances.

Robinson v Lindsay
Snowmobile accident where D was a child of 13. Ruled that the adult standard of
liability applies. Normally children are exempted from reasonable person standard,
however when a child is engaged in an inherently dangerous activity the exception does
not apply.

-General rule of child: child accused of negligence is held to standard of care of a

reasonably careful child of same age, intelligence and experience.

Chaffin v Brame
Negligence as a matter of law
Rules of Law: Standards of care acknowledged by courts and given the effect of law.
Duty depends upon the circumstances.
Statutes: