18/3/10 1 ¡PROF. CRAIG CHARLES BELES ¡Seattle, Washington, USA 18/3/10 2 DEFINITION: D ACTS IN AN EXTREME AND OUTRAGEOUS MANNER WITH THE INTENT OR RECKLESSNESS TO CAUSE PL SEVERE EMOTIONAL DISTRESS AND CAUSES SUCH DISTRESS “EXTREME & OUTRAGEOUS” – BEYOND ALL POSSIBLE BOUNDS OF DECENCY REGARDED AS ATROCIOUS & UTTERLY INtolerable in a Civilized Community “INTENT OR RECKLESSNESS” – DESIRE, SUBSTANTIAL CERTAINTY OR ACTING IN DELIBERATE DISREGARD OF A KNOWN HIGH PROBABILITY THAT SEVERE EMOTIONAL DISTRESS WILL RESULT 18/3/10 3 CONSENT 1. DEFENSE OF: SELF, OTHERS, PROPERTY 1. NECESSITY: PRIVATE & PUBLIC AUTHORITY 18/3/10 4 ISSUES EXPRESS OR IMPLIED SCOPE OF CONSENT CAPACITY TO CONSENT INSANE, INFANTS, INTOXICATION CONSENT INDUCED BY FRAUD or DURESS CONSENT TO AN ILLEGAL ACT 18/3/10 5 ISSUES USE OF REASONABLE FORCE and D HAS AN OBJECTIVELY REASONABLE SUBJECTIVE BELIEF THAT FORCE IS NECESSARY TO PREVENT IMMEDIATE HARM TO SELF. WHAT IS “REASONABLE FORCE?” PROPORTIONALITY IS RETREAT NECESSARY? WHAT IS “REASONABLE BELIEF IN IMMEDIATE HARM? RETRIBUTION? PRE-EMPTIVE STRIKE 18/3/10 6 SAME AS SELF DEFENSE, EXCEPT: SPLIT OF AUTHORITY RE YOUR REASONABLE BELIEF, i.e., DO YOU GET BENEFIT OF YOUR REASONABLE MISTAKE? or DO YOU STAND IN SHOES OF ONE BEING DEFENDED? 18/3/10 7 MORE LIMITED DEFENSE: Deadly Force is Prohibited USE OF MECHANICAL DEVICES TO PROTECT PROPERTY? Restatement Second of Torts, section 85, comment d, states. "The user of a device likely to cause death or serious bodily harm is not protected from liability merely by the fact that the intruder's conduct is such as would justify the actor, were he present, in believing that his intrusion is so dangerous or criminal as to confer upon the actor the privilege of killing or maiming him to prevent it. The actor is relieved from liability only if the intruder is, in fact, one whose intrusion involves danger of life and limb of the occupants of the dwelling place. RECOVERY OF PROPERTY?: Hot Pursuit, Right Person, Words First 18/3/10 8 PRIVATE: “Limited” Privilege to Harm Pl’s Prop When Greater Harm Threatens D, D’s Prop, 3rd Person or Prop • Negates Pl’s Right to Defend • But D Must Pay for any Damage PUBLIC: “Complete” Privilege to Harm Pl’s Property When Greater Harm Threatens the Public. • Negates Pl’s Right to Defend • And D Has No Duty to Pay for any Damage ISSUES: • Government Taking? • Use of Deadly Force? 18/3/10 9 PRIVATE CITIZENS’ RIGHTS To ARREST Breach of the Peace in Presence Felony out of Presence With Reasonable Grounds No Mistake Permitted in Either Shopkeeper’s Right re Suspected Shoplifter Reasonable Grounds Investigation On or Near Premises Only Reasonable Force Necessary to Detain Limited Time Period (Statutes – Until Police Arrive) POLICE RIGHT TO DETAIN Probable Cause or Reasonable Suspicion Can Use Deadly Force to Stop Fleeing Felon 18/3/10 10 1.DUTY TO PL – NECESSARY RELATIONSHIP BETWEEN PL & D 2. 2.**STANDARD OF CARE – REQUISITE LEVEL OF CONDUCT 3. 3.**BREACH OF DUTY – FAILURE TO MEET STANDARD 4. 4.CAUSE IN FACT – BREACH OF DUTY RELATES TO INJURY 5. 5.PROXIMATE CAUSE – POLICY RE EXTENT OF LIABILITY 6. 6.INJURY – REQUISITE HARM 18/3/10 11 THE REASONABLE PERSON – CHARACTERISTICS? UNREASONABLENESS – BREACH OF DUTY HOW TO MEASURE? U.S. v. Carroll Towing (2d Cir 1947) HOW TO PROVE? RES IPSA LOQUITUR SPECIAL STANDARDS OF CARE PROFESSIONAL NEGLIGENCE – MEDICAL, LEGAL LAND OCCUPIER – TRESPASSER, LICENSEE, INVITEE