Intentional torts - Incomplete privilege

Learning Outcomes

After reading this article, you will be able to identify when a privilege to an intentional tort is incomplete, explain the difference between complete and partial defenses, and apply the rules regarding the loss or limitation of privilege in MBE-style scenarios. You will also recognize how privilege may be lost or restricted by exceeding its scope or by improper conduct.

MBE Syllabus

For MBE, you are required to understand the scope and limits of privileges as defenses to intentional torts. This article covers:

• Distinguishing between complete and incomplete privilege as a defense to intentional torts.
• Recognizing when a privilege is lost, exceeded, or only partially protects the defendant.
• Applying the rules for partial defenses, including self-defense, defense of others, and necessity.
• Understanding the consequences of exceeding the scope of a privilege or acting improperly.
• Analyzing scenarios where privilege is not absolute and damages may still be awarded.

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.

1. A shopkeeper detains a suspected shoplifter for questioning, but uses excessive force. What is the likely legal result?
   1. Complete privilege applies; no liability.
   2. Incomplete privilege applies; partial liability.
   3. No privilege applies; full liability.
   4. The shopkeeper is immune from suit.
2. Which of the following is an example of incomplete privilege?
   1. Self-defense using reasonable force.
   2. Defense of property with deadly force.
   3. Public necessity to prevent a disaster.
   4. Consent to a medical procedure.
3. If a defendant acts outside the scope of a recognized privilege, what is the most likely outcome?
   1. The privilege is lost and full liability attaches.
   2. The privilege is expanded to cover all acts.
   3. The privilege is unaffected.
   4. The plaintiff is barred from recovery.

Introduction

Intentional torts often involve situations where the defendant claims a privilege or defense to justify their actions. However, not all privileges provide complete protection. Sometimes, a privilege is incomplete—meaning it only partially shields the defendant from liability, or is lost entirely if the defendant exceeds its scope or acts improperly. Understanding incomplete privilege is essential for analyzing MBE questions on intentional torts.

Complete vs. Incomplete Privilege

A complete privilege is a defense that fully protects the defendant from liability for an intentional tort. In contrast, an incomplete privilege only partially protects the defendant, or may be lost if the defendant misuses the privilege.

Key Term: Incomplete Privilege A defense to an intentional tort that does not fully protect the defendant from liability, often due to exceeding the privilege's scope or acting improperly.

When Privilege Is Incomplete

A privilege is incomplete in several common situations:

• The defendant uses more force than is reasonably necessary (e.g., excessive force in self-defense).
• The privilege is limited in scope (e.g., defense of property does not justify deadly force).
• The privilege is lost due to improper conduct (e.g., acting with malice or after the threat has ended).
• The privilege only provides a partial defense, reducing but not eliminating liability (e.g., private necessity).

Key Term: Partial Defense A defense that reduces, but does not eliminate, the defendant's liability for an intentional tort.

Exceeding the Scope of Privilege

If a defendant goes beyond what is permitted by the privilege, the protection is lost. For example, self-defense allows only reasonable force. If the defendant uses deadly force when only minor force is justified, the privilege is incomplete and liability may result.

Key Term: Loss of Privilege The situation where a defendant forfeits the protection of a privilege by acting outside its permitted scope or by improper conduct.

Examples of Incomplete Privilege

Self-Defense

Self-defense is a complete privilege only if reasonable force is used. If excessive force is used, the privilege is incomplete, and the defendant is liable for the excess.

Defense of Property

Defense of property does not justify deadly force. Using excessive force converts the privilege to an incomplete one, and the defendant is liable for resulting harm.

Necessity

Public necessity is a complete privilege, but private necessity is incomplete. A person acting out of private necessity may avoid liability for trespass but must pay for any actual damage caused.

Worked Example 1.1

A hiker, caught in a sudden storm, breaks into a private cabin to seek shelter. The owner sues for trespass and property damage. Is the hiker fully protected by privilege?

Answer: No. The hiker has the incomplete privilege of private necessity. He is not liable for trespass but must pay for any actual damage to the property.

Worked Example 1.2

A shopkeeper reasonably suspects a customer of theft and detains her for questioning, but continues to hold her after it becomes clear she is innocent. What is the result?

Answer: The shopkeeper's privilege to detain is incomplete. The privilege is lost once the suspicion is dispelled, and the shopkeeper is liable for false imprisonment for the period of continued detention.

Exam Warning

Exceeding the permitted force or acting after the privilege has ended will result in loss of privilege. On the MBE, always check if the defendant's conduct stayed within the privilege's limits.

Revision Tip

When analyzing privilege, always ask: Was the defendant's conduct reasonable and within the privilege's scope? If not, the privilege may be incomplete or lost.

Summary

Incomplete privilege arises when a defense to an intentional tort does not fully protect the defendant, often due to excessive force, improper conduct, or limited scope. In such cases, the defendant may be partially or fully liable for damages.

Key Point Checklist

This article has covered the following key knowledge points:

• Incomplete privilege only partially protects the defendant from liability for intentional torts.
• Privilege is incomplete if the defendant exceeds reasonable force or acts improperly.
• Partial defenses, such as private necessity, reduce but do not eliminate liability.
• Exceeding the scope of privilege or acting after it ends results in loss of protection.
• Always analyze whether the defendant's conduct stayed within the privilege's limits.

Key Terms and Concepts

• Incomplete Privilege
• Partial Defense
• Loss of Privilege