Defendant can negate one or more of the prima facie elements of the tort.
Affirmative defenses do not argue against the prima facie elements of the tort. Affirmative defenses show additional facts that allow the defendant to avoid liability.
Outside the statue of limitations
Self-defense
Consent
Privileges may be asserted such as the privilege of necessity, that an otherwise tortious act was privileged because it was done to prevent a greater harm.
The privilege to use force to protect oneself from an aggressor. An actor is privileged to use force in self-defense and incurs no liability in doing so, in some cases even if sheinflicted serious bodily injury or death upon her assailant.
Self defense only authorizes the use of force to prevent an impending battery or to stop one which is in progress.
Self-defense cannot be invoked for defense against threats of future harm.
Victim is only licensed to use the force that she reasonably believes is necessary to avert the threatened harm.
Self defense is not intended to remedy the wrong already inflicted. It is only authorized to prevent a further intrusion that cannot be avoided by waiting for legal redress.
The privilege to use force in self-defense turns on the victim's reasonably held belief that force is necessary, even if, in fact, it is not.
The victim must minimize the use of force as self-protection.
Courts have refused to create a duty to retreat before using nondeadly force in self-defense.
Deadly force in self-defense is force that is "intended or likely to cause death or serious bodily harm."
An actor may only use deadly force in response to the threat of deadly force, and only when non-lethal deadly force would be insufficient to prevent the attack.
Majority of jurisdictions allow victim of an assault with deadly force the privilege of standing her ground and using deadly force in self-defense, even if retreat is feasible.
Intevenor may act on her reasonable belief that a battery is about to be committed.
Mistaken defense of other is sometimes privileged, sometimes not.
In some, an actor has the privilege to act upon his reasonable perception. ("reasonable mistake" approach.)
Shoe-stepping approach (a minority position) means that the actor is only privileged if the actor is protecting a person who was actually privileged to defend himself. If he is wrong about who the aggressor is, and defends the actual aggressor, he steps into the shoes of the aggressor.
Volenti non fit injuria "volunteers cannot be made injured".
Lack of consent is part of an element of a plaintiff's prima facie case and the allegation of lack of consent should be included in the complaint.
Most courts hold that the defendant is privileged to make a contact where the plaintiff's words, gestures or conduct reasonably manifest consent to it, even if she was not actually willing to be touched.
Victim must have appreciated the true nature of the intended contact and thus did not meaningfully consent to it.
Where the legislature has barred conduct to protect a disadvantaged class, even the plaintiff's actual consent may not create a privilege.
consent to medical treatment. Consent to one type of touching is not necessarily consent to any touching done in the course of medical treatment. Doctor is required to get consent from the person receiving treatment, or person may appoint a proxy to make decisions if the patient is incapacitated.
doctor may still make some decisions if a reasonable person consent to the decision to avoid serious bodily harm or death.
Consent must be based on both parties understanding all the relevant facts. If the actor does not reveal relevant facts, they may be guilty of misrepresentation by omission, which would vitiate the "meeting of the minds" that true consent is based on.
conduct that injurs another does not make the actor liable to the other, even though the other has not consented to it if
a. an emergency makes it necessary or apparently necessary, in order to prevent harm to the other, to act before there is opportunity to obtain consent from the other or one empowered to consent for him and,
b. the actor has no reason to believe that the other, fi he had the opportunity to consent, would decline
Even if invoking the privilege of necessity, the actor must pay for resulting harm.
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