Defense by Consent The person who effectively consents to conduct to invade

Defense by consent the person who effectively

This preview shows page 8 - 11 out of 19 pages.

7.Defense by Consent: The person who effectively consents to conduct to invade interest may not collect in an action of tort for the conduct or for harm resulting from ita.To be effective consent must be a) by one who has the capacity to give consent or by a person who has the power to consent for them, and b) to the particular conduct, or to substantially the same conduct.b.Conditional consent is only effective within the conditional limits of the consenti.If the actor exceeds the consent it is not effective for the excess
Image of page 8
c.Upon termination of consent its effectiveness is terminated; except that it has become irrevocable by contract or otherwise or that its terms expresslygive privilege to actd.Intent may be expressed, implied (customary conduct) or implied by law (emergency)i.Capacity to consent (infants, intoxicated, mentally incapacitated)ii.Consent cannot be by fraud, distress, or mistakeiii.Scope of consent: actor may have exceeded permissions given (violent act outside rules of sport) 8.Defense by public necessity 9.Defense by private necessity 10. Defense by justification
Image of page 9
5. Negligence a. Conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm b. Duty : reasonable care to avoid injury to another i. It must be shown that the D owed P a duty to act reasonable in whatever D was doing ii. Cost-benefit test in the HAND FORMULA 1. US v. Carroll Towing the hand formula introduced 2. Burden < probability of harm X loss a. More simply if the burden is less than the probability of the harm multiplied by the loss then there is liability for negligence 3. Restatement § 293 on evaluating risk: a. The social value which the law attaches to the interest which are imperiled b. The extent of the chance that the actor’s conduct will cause an invasion of any interest of the other or of one of a class the other is a member c. The extent of the harm likely to be caused to the interest imperiled d. The number of persons who’s interest are likely to be invaded if the risk takes effect in harm 4. Children: must conform to a reasonable standard of like age, intelligence, and experience under the circumstances (restatement §283a) a. Exception being adult activity (Robinson v. Lindsay) b.
Image of page 10
Image of page 11

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture