Clem on Torts: Chapter 3: Defenses to Intentional Torts

Copyright 2014, Richard P. Clem
Richard P. Clem Continuing Legal Eduction

Clem on Torts is a comprehensive review of the material covered in a first-year torts class in an American law school. It is available free of charge on this website, and is also available for purchase as an Amazon Kindle book.

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Defenses to Intentional Torts

The defenses to most of the intentional torts are either identical or very similar, so they are treated together. A “defense”, more often called an “affirmative defense” means simply that the defendant is not liable, even though the plaintiff proved all of the elements of the tort. They are called “affirmative” defenses because generally, the defendant needs to plead and/or prove them. The plaintiff is always required to prove the elements of a tort, but the plaintiff does not need to prove that the defenses do not apply. If the plaintiff has proven all of the elements, then the burden of proof generally shifts to the defendant, and the defendant must prove that the defense applies.


The first defense that is covered in most torts courses is the defense of consent. As with much of the first few weeks of torts, there is nothing particularly surprising about the defense. It stands to reason that if the plaintiff gave the defendant permission to do something, then the plaintiff really shouldn’t be able to sue the defendant for doing it.

Obviously, consent may be express. If I tell you, “you may come onto my property,” then I really shouldn’t be able to sue you for trespassing.

In some cases, though, consent may be implied. The test is objective: The consent will be effective if what the plaintiff did would make a reasonable person in defendant’s position believe that he or she had consent.

To be effective, consent cannot be induced by fraud.

There is a split in authority as to whether it is possible to effectively consent to an unlawful act. The majority view is that such consent is not effective, because the purpose of the law is to discourage that act. But in a minority of jurisdictions, such consent is effective. The rationale is that the law doesn’t want to reward the consenting party, because he or she is also a wrongdoer.

Defense of self, others, or property

It is an affirmative defense that the defendant was acting in his or her own self-defense, or in defense of another person, or in defense of property. The defendant must take the action to prevent the other person (who is now the plaintiff) from committing a tort.

The force used must be reasonable. Again, we use an objective standard: The defense is effective if the defendant was using the force that would appear reasonably necessary to a person in his or her position.

If mere words would be sufficient, then no amount of force is reasonable.

Recapture of chattels

In order for this defense to apply, the defendant must have been wrongfully dispossessed of a chattel: It must have been taken from his or her possession. The defense applies only to acts against the person who took it. So if A stole property from B, then B would be entitled to use force against A. But if the property was in the possession of C, then the defense would not apply.

In order for this defense to be effective, the action must be prompt. If enough time has passed, then the defense is no longer available.

And the force must be reasonable.

Recovery of chattel

This affirmative defense is similar, but it is a defense to trespass. It allows the defendant to enter on the land of another.

In order for this defense to apply, the defendant’s chattel must be on the land of another, and it must not be there because of the defendant’s fault. The defense must be exercised in a reasonable manner.

This defense is available even though the owner of the property is not at fault. However, if it’s not the plaintiff’s fault that the chattel was on his or her property, then the defendant must pay any actual damages caused by recovering the item.


Necessity is a privilege to violate the property rights of another person in the face of an emergency. A commonly cited example is the case of a boat which is caught in a sudden storm. The defense of necessity would allow the owner of the boat to go onto the land of another, and would be a defense to trespassing.

There are two types of necessity: public necessity and private necessity. In the case of a public necessity, the privilege is absolute. But in the case of a private necessity (the defendant protecting his own safety or property, and not that of the public in general), then the defendant must pay any actual damages caused by the trespass, even though it is otherwise excused.

Legal Authority

The defense of legal authority would apply in the case of a law enforcement officer or other public official acting according to their legal duties. In the case of an officer serving a warrant, the test is whether the warrant is valid on its face.

Clem on Torts is also available at Amazon as a Kindle book.

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