Learning Outcomes
After reading this article, you will be able to identify and apply the main defenses to intentional torts involving physical harm. You will understand the requirements and limits of consent, self-defense, defense of others, and defense of property, and be able to distinguish when these defenses succeed or fail in MBE-style scenarios.
MBE Syllabus
For MBE, you are required to understand the key defenses available to claims for intentional torts causing physical harm. This includes:
- Recognizing when consent is a valid defense and its limits.
- Applying the principles of self-defense and defense of others, including reasonable force and retreat rules.
- Understanding the defense of property and its restrictions.
- Identifying situations where necessity or privilege of arrest may apply.
- Distinguishing when these defenses are unavailable or limited.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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Which of the following is generally NOT a valid defense to a claim of battery?
- Consent
- Self-defense
- Defense of property using deadly force
- Defense of others
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A shopkeeper reasonably suspects a customer of theft and detains her for questioning in a reasonable manner and time. What defense is most likely available?
- Consent
- Shopkeeper’s privilege
- Necessity
- Defense of property
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If a person uses force to protect another from an imminent battery, which requirement must be met for the defense to succeed?
- The person aided must actually have the right to self-defense
- The defender must be related to the person aided
- The defender must use only reasonable force
- The defender must retreat before intervening
Introduction
Intentional torts involving physical harm—such as battery, assault, and false imprisonment—are subject to several well-established defenses. These defenses, if proven, can bar or limit liability even where the plaintiff has established all elements of the tort. The most frequently tested defenses on the MBE are consent, self-defense, defense of others, and defense of property. Understanding the requirements and boundaries of these defenses is essential for answering MBE questions accurately.
Consent
Consent is a complete defense to intentional torts if the plaintiff agreed to the defendant's conduct. Consent can be express (stated clearly) or implied (inferred from conduct or circumstances). However, consent is not valid if obtained by fraud as to an essential fact, by duress, or if the plaintiff lacked capacity (such as being a minor or intoxicated).
Key Term: Consent A defense to intentional torts where the plaintiff voluntarily agrees to the defendant's conduct, either expressly or by implication, provided the consent is valid and not exceeded.
Self-Defense
A person may use reasonable force to protect themselves from imminent harmful or offensive contact. The force used must be proportionate to the threat. Deadly force is only justified if the person reasonably believes they face death or serious bodily harm. Most jurisdictions do not require retreat before using reasonable force, except in some cases involving deadly force outside the home.
Key Term: Self-Defense The privilege to use reasonable force to prevent imminent harmful or offensive contact to oneself, provided the belief in the threat is reasonable.
Defense of Others
A person may use reasonable force to protect another if they reasonably believe that the other person would be entitled to use self-defense. The defender need not be correct about the actual threat, only that their belief is reasonable.
Key Term: Defense of Others The right to use reasonable force to protect a third party from imminent harm, based on a reasonable belief that intervention is necessary.
Defense of Property
A person may use reasonable, non-deadly force to prevent or end a trespass or theft of property. Deadly force is never permitted solely to protect property. Before using force, a request to desist is usually required unless it would be dangerous or futile.
Key Term: Defense of Property The privilege to use reasonable, non-deadly force to prevent or terminate an unlawful intrusion onto one's property.
Necessity
Necessity may be a defense to intentional torts involving property, but rarely to those involving personal harm. Public necessity (to prevent a greater harm to the community) is a complete defense, while private necessity (to protect a limited number of people or property) is a qualified defense, requiring compensation for actual damage caused.
Key Term: Necessity A defense to property torts where the defendant acts to prevent a greater harm, either to the public (complete defense) or to themselves or a few others (qualified defense).
Privilege of Arrest
Certain intentional torts may be defended by the privilege of arrest, such as when a private citizen or police officer detains someone suspected of a crime, provided the arrest is lawful and reasonable force is used.
Key Term: Privilege of Arrest The right to detain another for a crime under specific conditions, using reasonable force, as a defense to intentional torts like false imprisonment.
Worked Example 1.1
A football player punches another during a match. The injured player sues for battery. The defendant argues that all players consented to physical contact by joining the game. Is this a valid defense?
Answer: Yes. By participating in a contact sport, players are generally deemed to have given implied consent to contacts within the rules and customs of the game. However, consent does not extend to conduct outside the scope of the sport (e.g., an intentional punch after play ends).
Worked Example 1.2
A homeowner sees a burglar breaking into his shed and uses a spring-loaded gun to protect his property, injuring the burglar. The burglar sues for battery. Can the homeowner claim defense of property?
Answer: No. While reasonable, non-deadly force may be used to protect property, deadly force (including traps) is never permitted solely to protect property. The defense fails.
Worked Example 1.3
A bystander sees a stranger being attacked and intervenes, using reasonable force to stop the attacker. The attacker sues the bystander for battery. What defense applies?
Answer: Defense of others. The bystander is protected if they reasonably believed intervention was necessary and used only reasonable force, even if it turns out the person aided was not actually entitled to self-defense.
Exam Warning
Exam Warning: Using deadly force to protect property alone is never justified. The MBE often tests this distinction—deadly force is only allowed to prevent serious bodily harm, not to defend property.
Revision Tip
Revision Tip: Always check if the force used was reasonable and proportionate to the threat. Excessive force defeats most defenses.
Key Point Checklist
This article has covered the following key knowledge points:
- Consent is a complete defense if valid and not exceeded, but is invalid if obtained by fraud, duress, or from someone lacking capacity.
- Self-defense allows reasonable force to prevent imminent harm; deadly force only if facing serious harm.
- Defense of others is available if the defender reasonably believes intervention is needed and uses reasonable force.
- Defense of property allows only reasonable, non-deadly force; deadly force is never justified for property alone.
- Necessity is a defense to property torts, not personal harms; public necessity is complete, private necessity is qualified.
- Privilege of arrest may justify detention if lawful and reasonable force is used.
Key Terms and Concepts
- Consent
- Self-Defense
- Defense of Others
- Defense of Property
- Necessity
- Privilege of Arrest
