Chapter 6 - § 6.5 • DEFENSES

• Jurisdiction: Colorado

§ 6.5 • DEFENSES

§ 6.5.1—Provocation

Words alone, unless accompanied by an act of hostility, do not justify a battery, even if spoken immediately preceding the event.³⁵ However, while provocation does not provide a defense against an award of compensatory damages for battery, the finder of fact may consider evidence of provoking words or conduct in mitigation of a claim for exemplary damages.³⁶

§ 6.5.2—Consent

While there is no specific case law addressing whether consent is a defense to battery, consent is included as an affirmative defense in the Colorado Jury Instructions.³⁷ If the defendant is reasonably led to believe that the plaintiff has consented to the contact, either through words or conduct, it may provide a defense to battery.³⁸

Within the context of a claim of battery against a physician or one in the healing arts, implied or express consent to the procedure or treatment performed is a defense.³⁹ A patient may give express consent orally or in writing, and implied consent includes any words or conduct that would lead the defendant to reasonably believe the patient provided consent. The treater may also claim implied consent when treatment is provided in an emergency and the plaintiff's mental or physical condition prevents him or her from being able to give consent.⁴⁰

§ 6.5.3—Self-Defense or Defense of Another

A claim of battery may be defeated if the defendant acted in self-defense or defense of a third person. To succeed, the defendant must prove that it was reasonable to believe under the circumstances that intervention was necessary to prevent bodily harm to himself or herself or another person. Additionally, the force used to prevent harm must be reasonable under the circumstances, and the defendant must apply it at a time when he or she reasonably believed intervention was necessary.⁴¹

The defendant in an assault action may wish to invoke the statutory privilege to use physical force in self-defense or defense of another person as set forth in C.R.S. § 18-1-704.⁴² Although this statute has been applied in criminal cases, C.R.S. § 18-1-704.5 creates immunity from civil liability if the standards and circumstances set forth in C.R.S. § 18-1-704 are met.⁴³

§ 6.5.4—Defense of Real or Personal Property

A defendant may assert the affirmative defense of his or her defense of real or personal property in response to a battery claim.⁴⁴ A defendant may use reasonable force to remove the plaintiff from the defendant's real property if the plaintiff is on the defendant's property without permission, the defendant asked the plaintiff to leave prior to using force, and the defendant reasonably believed force was necessary to remove the plaintiff from his or her property. Similarly, a defendant may...