DEFENSES TO INTENTIONAL TORTS:

Consent:

The consent by a plaintiff to a defendant’s intentional tort, whether orally or in writing, is a legitimate defense. For example, being a participant in fight club would be considered giving your consent. (It should be noted that we have just broken the first rule of fight club.) Consent can also be implied. By being in the middle of a crowd as you try to enter a concert, you have giving your implied consent that you will be touched to some extent by others in the crowd. Your action for battery in such a situation would probably fail by the fact that you gave your implied consent to the unwanted touching.

Self-Defense:

A defendant in certain situations may have a claim of self-defense to an intentional tort. The law recognizes that we have the right to defend ourselves by using physical force when we reasonably believe that we are going to suffer imminent harm or offensive contact. There are limits to self-defense. A person can only use the amount of force necessary to protect themselves or protect a third person. In NYS, a person has the duty to leave a situation if possible rather than use physical force in self-defense. The only situation that this does not apply to is the defense of one’s home. A homeowner has no duty to retreat or leave their home. When a person is in their home, they may use physical force to defend their person and/or property.

Immunity:

Under both the state and federal constitutions, government officials may be immune for certain lawsuits. This is called sovereign immunity. The Eleventh Amendment of the U.S. Constitution grants the states sovereign immunity from being sued in federal courts unless they give their consent. For example, in NYS, government officials are entitled to qualified immunity when they act in their governmental capacity and owe no special duty to a plaintiff. Actions by the police, firefighters, and EMTs fall into this category. If government official actions are more a proprietary function, they can be sued like anyone else. Proprietary functions are generally when the government is doing much the same thing a private enterprise would traditionally do.

Statutes of Limitations:

As discussed in the negligence section above, there are statutes of limitations for intentional torts. Assault, Battery, Defamation, False Imprisonment, and Intentional Infliction of Emotional Distress all have one year statute of limitations under CPLR §215 (3).