Intentional Tort Defenses

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 What are Intentional Torts?

Before learning about what some of the defenses are to a claim for intentional torts, it is important to know exactly what an intentional tort is first.

An intentional tort is an intentional act committed by a defendant against another individual that the defendant specifically carried out to cause the other person harm.

Often, the victim will then bring a claim against the defendant to recover damages for their injuries. Depending on the type of intentional tort, the laws of a state, and the facts of a case, the defendant may be able to bring a defense against the victim’s claim.

If the defendant is successful in applying their defense, then they may be able to reduce any damages owed to the victim, or possibly even avoid having to take any responsibility for the claim altogether.

What Does the Defense of Consent Mean in a Claim for Intentional Torts?

There are several defenses that are frequently used in a claim for intentional torts. The first and most commonly used defense is consent.

Consent can be used as defense in cases where a person voluntarily consented to a defendant’s particular act. When a person consents to an act that amounts to an intentional tort, they will not be able to then bring a case based on such a claim.

Consent may be given by the person in writing or verbally. It can also be implied based on the individual’s conduct.

To determine whether or not consent was in fact provided, the court will use an objective standard. Essentially, this means the consent analysis will be based on whether a “reasonable person” could conclude that consent was given.

However, consent may be revoked (taken back). If it can be proven that it was revoked prior to the defendant’s actions that amounted to the intentional tort, then the defendant will not be able to use consent as a defense in the case.

It is also important to note that the individual must have had the capacity to give consent. For example, if the individual was too young (i.e., a minor), intoxicated, or mentally incompetent to have the legal capacity to be able to provide valid consent, then the consent will be considered as invalid.

Additionally, consent cannot be obtained by trick, fraud, duress or coercion, or given based on a mistaken belief.

What Does the Defense of Necessity Mean in a Claim for Intentional Torts?

Another popular defensive mechanism used in a claim for intentional torts is the defense of necessity. This typically applies during an emergency situation.

Necessity allows a defendant to avoid fault based on the fact that there was an emergency that forced the defendant to act in a wrongful way so that a greater harm would not occur to either the defendant, the defendant’s property, or the community at large.

There are two kinds of necessity under this defense: private necessity and public necessity. Private necessity usually involves a scenario where the defendant had to trespass or do damage to another individual’s property in order to better protect themselves from some harm.

The defense of private necessity gives the defendant a right or privilege to continue trespassing or using the individual’s property, so long as the emergency is still ongoing. If it is not, then the defendant must refrain from these actions.

On the other hand, public necessity similarly involves being able to trespass or do damage to another’s property, but in this instance, it is solely to prevent some kind of harm to the greater community. Oftentimes, public necessity will apply as a defense for public employees, such as a firefighter or a police officer.

What are Some Additional Common Defenses to Intentional Torts?

Several other commonly cited defenses to intentional torts include:

  • Self-Defense: An individual may be able to use reasonable force against a reasonably apparent threat in order to avoid the infliction of immediate bodily harm. A person may also be able to use self-defense on behalf of another individual’s legitimate right to self-defense and use force in defense of that person;
  • Defense of Property: A defendant is also permitted to use reasonable force to prevent damages to property. The use of deadly force, however, is typically not allowed for defending property;
  • Recapture of Chattels: Reasonable force may be used to recapture a chattel (e.g., personal property), but only when an individual is in “hot pursuit” of someone who has wrongfully obtained possession of the property, such as by theft. If the other individual received the item lawfully, however, then one can only use peaceful means to recover the chattel and will not be allowed to use this defense; 
  • Assumption of Risk: The defendant may assert an assumption of risk defense when a plaintiff knew of the risk involved and voluntarily did the action regardless; and 
  • Shopkeeper’s Privilege: Finally, a shopkeeper may have the privilege to detain an individual for a reasonable period of time if they reasonably believe that the individual is in possession of shoplifted goods from their store.

Should I Contact a Lawyer for Help with a Claim Involving Intentional Torts?

If you are the defendant in a case involving a claim for intentional torts, you should consider contacting a local tort attorney as soon as possible.

The reason for this is because it is usually very difficult to apply a defense against an intentional tort claim. The issues found in these types of cases are generally complicated and the laws that govern intentional torts can vary from state to state.

A qualified personal injury attorney will be able to determine whether there are any defenses available for your case, can provide advice about any rights or protections you may have as a defendant, and can provide representation on your behalf on the matter in a court of law.

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