Affirmative defenses United States tort law

1 affirmative defenses

1.1 consent
1.2 self-defense
1.3 defense of property
1.4 necessity

1.4.1 private necessity
1.4.2 public necessity

affirmative defenses

the following affirmative defenses intentional torts.

consent

consent can defense intentional tort, although lack of consent incorporated definition of intentional tort, such trespass land. however, lack of consent not essential element establish prima facie case in such situations. therefore, treated affirmative defense.

self-defense

self-defense typically defense battery. similar self-defense defense of others.

defense of property

this typically defense trespass land or trespass chattels, can refer realty or personalty.

necessity

necessity typically defense trespass land. there 2 kinds of necessity, private , public.

private necessity

this partial privilege. party has privilege still liable damage caused. defense therefore more important when there concomitant issue of whether opposing party has valid privilege of defense of property.

the following example derived actual vermont case 1908. paula sailing on lake when violent storm breaks out. navigates nearest dock , ties vessel, not damaging dock @ all. dock belongs dave. dave attempts exercise privilege of defense of property, paula ordinarily committing trespass land in situation, , unties vessel. paula therefore drifts away shore. boat damaged, , suffers personal injuries, both result of storm.

if paula had damaged dave s dock, liable it, though has valid privilege of private necessity. more importantly, dave liable paula damage boat , personal injuries. because of private necessity, paula not considered trespasser. so, dave did not in fact have valid privilege of defense of property.

ordinarily, private necessity valid, party attempting exercise must not have created emergency. example, if paula intentionally punctures fuel tank can race on dave s dock , tie up, not have valid privilege of private necessity. such, trespasser, , dave have valid privilege of defense of property.

public necessity

this complete privilege. party has privilege, typically public official or governmental entity, not liable damage caused. famous case on privilege involved john w. geary, first mayor of san francisco, made decision during major fire burn down several private residences establish fire break.