IV. Defenses: Overriding the Choices of Others | Lydia Lichlyter | September 18, 2015


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IV. Defenses: Overriding the Choices of Others

Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter Show/Hide

Nearly any defined pattern of wrongdoing is likely to admit exceptions. That’s in part what can make it so difficult to simply stipulate by legal text ahead of time what behavior is allowed and what is not. But we can try. Efforts to taxonomize carve-outs from legal rules or standards can be worked into the prima facie – “at first glance” – case for a wrong. For example, we might start by defining a battery as an “…unconsented touching… .” Exceptions can also be enshrined as affirmative defenses: all the requirements of a prima facie case might be met, but a defense may then be invoked against it. In this configuration, a battery could be a mere “touching,” but a case for damages would be derailed if the defendant can show consent by the plaintiff. Is there any meaningful difference between defining a tort in a way that captures exceptions in the definition itself, compared to a simpler definition accompanied by a set of defenses?

Here we look at some of the most common defenses to a range of intentional torts, and their limits. When, for example, should consent of the victim not be enough to eliminate liability for a wrongdoer? What happens when someone hurts someone else in an act of self-defense, but has made a mistake about the intentions of the person acted against? At what point should one’s personal or property rights yield to an emergency in which someone else’s life or property is at stake? This last question also offers us an opportunity to think in a more nuanced way about “plaintiffs” and “defendants” – in many situations the parties are interacting with one another, and each is prepared to claim wrong by the other. A court, then, might find each party as both plaintiff and defendant against the other, and one could imagine a range of actions that ought to be demanded or incented in order to reach a just outcome. Part of the nuance here is to recognize that the law can indeed alternatively “demand” and “incent”: the first, even in civil tort, could be backed up by a threat of jail time or crippling fines; the second, imposed as a carefully calibrated “cost of doing business.” By charging the “right” amount of damages for a harm, is it sensible to then speak of achieving the proper – “efficient,” even – level or amount of such harm in society?


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  1. 1 Show/Hide More IV.A. Consent
    Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter
    1. 1.1 Show/Hide More Hart v. Geysel--"The Fatal Prize Fight"
      Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter
      Should a tort be recognized when both parties agreed to engage in harmful contact?
      Plaintiff died as the result of a blow received in a prize fight with defendant. Plaintiff’s estate sued the defendant for wrongful death.
    2. 1.2 Show/Hide More Hackbart v. Cincinnati Bengals--"The No-Foul-But-Severe-Harm Case"
      Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter
      Does the nature of a rough-and-tumble activity like professional football excuse potential tort liability arising from the game?
      Parties were football players on opposing teams. Frustrated with his team’s poor performance, the defendant used his arm to strike plaintiff in the back of the head. No foul was called and both players immediately resumed play without complaint. Soon after, plaintiff discovered that he had a serious neck fracture injury.
    1. 2.1 Show/Hide More Courvoisier v. Raymond--"The Mistaken Self-Defender"
      Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter
      Should the common law excuse harmful contact made in self-defense? If so, how do we decide which harmful acts fall within the scope of self-defense?
      Defendant was woken one night by parties who were trying to break into his jewelry store. After the group gained entry, defendant scared them away by shots into the air. Plaintiff—a policeman—approached the defendant, identified himself as an officer, and called out for the defendant to stop shooting. The defendant mistook the plaintiff as one of the trespassing parties and shot him.
    1. 3.1 Show/Hide More Ploof v. Putnam -- "The Private Island in a Storm"
      Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter
      In order to accommodate plaintiff’s need to protect his/her own life or property, should society privilege him/her with the right to interfere with another’s property?
      Plaintiff, his wife, and children were out on a lake in plaintiff’s boat during sudden storm. In order to avoid the risk of harm to his family and property, the plaintiff moored his boat to the defendant’s private island in the middle of the lake. Defendant’s servant unmoored the boat, causing the boat to be destroyed and casting the plaintiff, his wife, and children into the water.
    2. 3.2 Show/Hide More Vincent v. Lake Erie Transp. Co.--"The Boat-Slamming-Against-the-Dock Case"
      Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter
      Should defendants be privileged in protecting their own property at the expense of another’s property? If so, does the court “demand” anything from the plaintiff in exchange for the privilege?
      Defendant’s vessel was trapped in a harbor due to a violent storm. Rather than risk his boat being destroyed, defendant repeatedly tied and retied his boat to the plaintiff’s dock, despite an awareness that his boat was smashing into and damaging the dock.
    1. 4.1 Show/Hide More Barbara A. v. John G.--"The Lying, Impregnating Attorney"
      Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter
      How should the court evaluate defenses that come from different sources of law?
      Defendant—an attorney—represented the plaintiff in matters related to a divorce. During his representation of the plaintiff, defendant tricked the plaintiff into engaging in sexual intercourse by suggesting that he was sterile. Plaintiff became pregnant, and eventually underwent surgery to save her life when the pregnancy was discovered to have severe complications. As a result of the surgery, plaintiff’s Fallopian tube was removed and she was thereby rendered sterile.

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September 18, 2015

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Lydia Lichlyter


Harvard Law School

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