Intentional torts refer to acts which were committed intentionally that causes harm to another individual. If someone is sued for an intentional tort, there are various legal defenses available.
Defense to Intentional Torts: Consent
There are several, commonly used, defenses to intentional torts. The first and most popular one is consent.
Consent is a defense in which an individual who voluntarily consents to a particular act cannot also claim that the same act is an intentional tort. Consent can be given in writing, verbally and it can also be implied from an individual’s conduct.
To determine if consent was given, the objective standard is used which basically means whether a “reasonable person” could conclude that consent was given. However, consent can be revoked which means that you cannot use this defense if you commit the intentional tort after the consent was revoked.
Also, the individual must have the capacity to give consent and the consent given can be considered invalid if the individual is too young, is intoxicated or is considered mentally incompetent. Also, consent cannot be obtained by trickery, fraud, under duress or given because of a mistake.
Defense to Intentional Torts: Necessity
Another common defense is necessity, which applies to emergency situations and allows you to act in a wrongful way because doing so prevents a greater harm to you, your property or the community. The two types of this defense are private necessity and public necessity.
Private necessity typically involves trespassing or damaging another individual’s property to protect yourself, your property or a small number of people. Under the defense of private necessity, you typically have the right to continue trespassing or using the individual’s property as long as the emergency is ongoing.
Public necessity is when you have trespassed or damaged someone’s property to prevent harm to the greater community and it often applies to public employees such as firefighters and police officers.
What are Some Other Common Defenses to Intentional Torts?
A few other common defenses are:
- Self-Defense: An individual is entitled to use reasonable force against a reasonably perceived (even if it is not actual) threat in order to prevent the infliction of immediate bodily harm. One can also stand in for another individual’s legitimate right to self-defense and use force in defense of that individual.
- Defense of Property: The defendant is also entitled to use reasonable and proportionate force to prevent damage to property. However, the use of deadly force is generally not allowed for defending property.
- Assumption of Risk: This is a defense which is used when the plaintiff deliberately and willfully encountered the risk.
- Recapture of Chattels: Force may be used to recapture a chattel only when the individual is in “hot pursuit” of one who has wrongfully obtained possession such as through theft. However, if another individual’s possession began lawfully, one can only use peaceful means to recover the chattel.
- Shopkeeper’s Privilege: Shopkeepers may have the privilege to detain individuals for a reasonable period of time if they reasonable believe that those individuals are in possession of shoplifted goods.
Should I Contact a Lawyer?
Defending against intentional tort claims can be complex and the laws which govern intentional torts can vary by state. In this context, it is important to consult with a local personal injury attorney who can guide you through the process and represent you in court, if necessary.