Learning Outcomes
After reading this article, you will be able to identify and apply the main privileges and immunities that serve as defenses to intentional torts. You will understand the requirements for consent, self-defense, defense of others, defense of property, necessity, and statutory immunities, and be able to distinguish when these defenses succeed or fail in MBE-style questions.
MBE Syllabus
For MBE, you are required to understand the main defenses to intentional torts, including privileges and immunities. This article covers:
- The role of consent as a defense to intentional torts.
- The requirements and limits of self-defense, defense of others, and defense of property.
- The doctrine of necessity (public and private).
- Statutory and common law immunities, including governmental and parental immunities.
- The effect of these defenses on liability for intentional torts.
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 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 detains a suspected shoplifter for questioning. What is required for the shopkeeper to claim the privilege of detention?
- Actual guilt of the suspect
- Reasonable belief and reasonable manner of detention
- Detention only after police arrive
- Detention for any length of time
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Which privilege is most likely to provide a complete defense to a trespass to land claim when the defendant enters to prevent a public disaster?
- Private necessity
- Public necessity
- Consent
- Parental immunity
Introduction
Intentional torts are subject to several defenses known as privileges and immunities. These defenses, if established, can excuse or justify conduct that would otherwise be tortious. Understanding the requirements and limits of each privilege is essential for MBE success.
Consent
Consent is a primary defense to intentional torts. If the plaintiff gives valid consent, the defendant is not liable for conduct within the scope of that consent.
Key Term: Consent A voluntary agreement by a person with capacity, allowing conduct that would otherwise be tortious.
Consent can be express (stated in words or writing) or implied (inferred from conduct or circumstances). Consent is not valid if obtained by fraud, duress, or from someone lacking capacity (such as a minor or someone intoxicated).
Self-Defense
A person may use reasonable force to protect themselves from imminent harmful or offensive contact.
Key Term: Self-Defense The privilege to use reasonable force to prevent an imminent battery or other tort against oneself.
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. There is no duty to retreat before using reasonable force, except in some jurisdictions for deadly force outside the home.
Defense of Others
A person may use reasonable force to defend another if they reasonably believe that the other person is entitled to use self-defense.
Key Term: Defense of Others The privilege to use reasonable force to protect a third party from imminent harm, based on a reasonable belief that intervention is justified.
The defender steps into the shoes of the person defended; if that person would not have the right to self-defense, the privilege may not apply.
Defense of Property
A person may use reasonable, non-deadly force to prevent or stop a tort against their property.
Key Term: Defense of Property The privilege to use reasonable, non-deadly force to prevent or terminate a tort against one’s real or personal property.
Deadly force or force likely to cause serious injury is never permitted solely to defend property. Before using force, a request to desist is usually required unless it would be futile or dangerous.
Necessity
Necessity allows a person to interfere with the property rights of another to avoid a greater harm.
Key Term: Necessity A defense permitting intentional interference with property to prevent a greater harm, either to the public (public necessity) or to oneself or a few others (private necessity).
Public necessity provides a complete defense if the act was to prevent a public disaster. Private necessity is a limited defense: the actor must pay for any actual damage caused.
Statutory and Common Law Immunities
Certain defendants are immune from liability for intentional torts due to their status or the context of their actions.
Key Term: Immunity A legal protection that prevents liability for certain torts, often based on the defendant’s status (e.g., government official, parent).
Common examples include:
- Governmental immunity: Protects government entities and officials from liability for discretionary acts within their authority.
- Parental discipline: Parents may use reasonable force to discipline their children.
- Spousal and family immunities: Largely abolished, but may still apply in some jurisdictions.
Worked Example 1.1
A store owner suspects a customer of shoplifting and detains her for 10 minutes in a back room, using only verbal requests and no physical force. The customer is later found to be innocent and sues for false imprisonment. Can the store owner claim a privilege?
Answer: Yes. The store owner may claim the shopkeeper’s privilege if there was a reasonable belief of theft, the detention was conducted in a reasonable manner, and lasted only a reasonable time for investigation.
Worked Example 1.2
A firefighter enters private land without the owner’s consent to stop a spreading wildfire. The owner sues for trespass. What defense applies?
Answer: The firefighter may claim public necessity, which is a complete defense to trespass when entry is to prevent a public disaster.
Worked Example 1.3
A parent uses moderate physical force to discipline a child for dangerous behavior. The child later claims battery. Is the parent liable?
Answer: No. Parents are privileged to use reasonable force for discipline, provided it is not excessive under the circumstances.
Exam Warning
The use of deadly force is never justified solely to protect property. Using traps or spring guns to defend property will result in liability.
Revision Tip
Always check whether the privilege claimed matches the facts. For example, necessity may excuse entry but not damage caused, unless it is public necessity.
Key Point Checklist
This article has covered the following key knowledge points:
- Consent is a defense to intentional torts if valid and within scope.
- Self-defense and defense of others require reasonable belief and proportionate force.
- Defense of property allows only reasonable, non-deadly force.
- Necessity (public or private) may justify interference with property; public necessity is a complete defense, private necessity is limited.
- Statutory and common law immunities may bar liability for certain defendants.
- Deadly force is never justified solely for property protection.
- Privileges and immunities must be strictly applied to the facts.
Key Terms and Concepts
- Consent
- Self-Defense
- Defense of Others
- Defense of Property
- Necessity
- Immunity
