What are some defenses to intentional torts?

Some applicable defenses to intentional torts are consent, self-defense, necessity, and statute of limitations. For example, let's say a boxer knocks out his opponent with a vicious uppercut, the fallen boxer cannot file a tort suit for battery because he has voluntarily consented to the punches. However, former world heavyweight boxing champion Evander Holyfield may have had a good tort case against former opponent (and former champion) Mike Tyson when they fought their second bout. In that infamous bout, Tyson bit Holyfield's ear twice. Holyfield consented to punches in the boxing ring but not the ear bites.

Self-defense is another interesting defense. The general rule is that a person has a privilege to use reasonable force to defend him or herself. Questions arise whether a defendant used reasonable force under the circumstances to protect his home or property. People have been sued because they shot and killed intruders or thieves. State laws differ on the availability of the scope of self-defense, particularly the use of deadly force. Some states allow the use of deadly force to protect property, not just a person's life.


What is negligence and what are the elements of a negligence claim?

Negligence refers to a common type of tort claim in which the plaintiff alleges that a defendant acted carelessly or unreasonably and harmed the plaintiff. If a person is negligent, that person is at fault. In other words, if person A fails to follow a yield sign and plows her car into the vehicle of person B, B may sue A for negligence. The theory is that A operated her motor vehicle in a negligent, or faulty, fashion. It doesn't matter that A did not mean to harm B. What matters is whether A was at fault and unreasonable in the operation of her motor vehicle and caused harm to B.

Similarly, if a business cleans its floors with slippery substances and does not clean up the floor and warn its customers of the dangerous condition, the business is negligent. The theory is that it is socially unreasonable for the business owner to place its customers in harm's way.

The elements of a negligence claim are (1) duty; (2) breach of duty; (3) causation; and (4) damages. Duty means that a person owes a duty to other people to act in a socially reasonable manner. Breach of duty occurs when the defendant fails to act reasonably under the circumstances, or fails to act like a reasonable person under the circumstances. Causation means that the defendant's conduct caused the harm suffered by the plaintiff. Damages refer to the requirement that the plaintiff suffers some type of actual harm.

What is a "reasonable person"?

A reasonable person refers to a fictional person who conforms his or her conduct to the applicable standards of care in society. In other words, a reasonable person is a person who does not act negligently and serves as a guide in determining whether defendants in tort cases adhered to a reasonableness standard.

The Restatement of Torts (2d) ยง 283, comment b provides in part:

Negligence is a departure from a standard of conduct demanded by the community for the protection of others against unreasonable risk.. In dealing with this problem the law has made use of the standard of a hypothetical "reasonable man." Sometimes this person is called a reasonable man of ordinary prudence, or an ordinarily prudent man, or a man of average prudence, or a man of reasonable sense exercising ordinary care. It is evident that all such phrases are intended to mean very much the same thing. The actor is required to do what this ideal individual would do in his place.

The reasonable person standard is an objective standard that provides a comparison between the defendant and the ideal person who is acting reasonably. Factors

LegalSpeak: Koch v. Norris Public Power District (Neb. App. 2001)

The thread that runs through all of the above-cited cases, i.e., all the cases we found on the subject, is that powerlines do not normally fall without fault on behalf of the company that maintains them and that res ipsa loquitur is applied in the absence of a substantial, significant, or probable explanation (but this standard seems to vary from jurisdiction to jurisdiction). Generally in the cases which hold the doctrine does not apply, the reasons cited for that conclusion have to do with the powerlines not being under the exclusive control of the power company, which is really a consideration under the second element of res ipsa loquitur, or that the powerline was caused to be down by the act of the plaintiff, of nature, or of some third party, which is a reason usually treated under the third element of res ipsa loquitur. However, all of the above-cited cases seem to be based upon the proposition that, and the majority rule seems to be, if a powerline falls without explanation, then the fall is attributed to the power company if that line is under the exclusive control of the power company. In other words, powerlines do not, in the ordinary course of events, fall in the absence of negligence.

important in determining reasonableness sometimes include the defendant's profession, custom, age, whether the defendant violated a statute or law, and physical characteristics of the defendant. For example, a blind person is not held to the same standard of care as people who have their eyesight.

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