Key Takeaways

  • Self-defense in tort law allows reasonable force to prevent harm but prohibits excessive or retaliatory actions.
  • Defense of others extends self-defense rights to protect family, friends, or strangers, provided the intervention is reasonable.
  • Defense of property permits reasonable force to protect land or belongings but rarely justifies deadly force.
  • Consent serves as a tort defense when a plaintiff voluntarily agrees to an act, though fraud or coercion invalidates consent.
  • Necessity permits otherwise unlawful acts if done to prevent greater harm, with distinctions between public and private necessity.
  • Comparative defenses such as contributory negligence and assumption of risk can reduce or bar recovery.

Self Defense

The privilege of self defense is based in the idea that no one should have to idly stand by while suffering harm from another, and one need not wait for resort to the law for redress. The privilege exists in both torts and in criminal law.

While a person may take reasonable steps in preventing harm to himself, once the danger passes, the privilege of self defense disappears (revenge does not qualify as self defense). The privilege also extends to those situations where there is a reasonable belief of impending danger – one does not need to wait for an actual blow to be struck. But, while a person need not display abnormal courage he also cannot plead abnormal timidity as an excuse for his actions – the apprehension of harm that incited action must be reasonable.

A person cannot use an excessive level of force and then claim self defense – the actions taken in self defense must approximately match the level of danger threatened. If a person does use excessive force while defending himself he is committing a tort as to that excess, and the two parties may each have tort claims against one another. Deadly force may be used to counter deadly force, but only as a last resort – if there is a means of escape, one must avail oneself of it, though the courts are divided on this point. The one exception to the escape clause is when a person is in her own home – deadly force can then be used even if there is a reasonable means of escape. Some courts have extended this rule to include one's yard, place of business, or automobile, but these extensions are strained and should not be relied upon.

If a person inflicts injury upon a third person while attempting to defend herself, the courts will typically not find a cause of action in the absence of negligence. Of course, if the action is intentional, the courts are much more likely to find a cause of action – a man will be held liable for trampling another while fleeing danger.

Defense of Others

The doctrine of defense of others operates similarly to self-defense, allowing a person to use reasonable force to protect another individual from harm. Courts typically require that the intervener have a reasonable belief that the person being defended is in imminent danger. Some jurisdictions apply a “reasonable appearance” standard—if it reasonably seemed that intervention was necessary, the defense may still apply even if the perception later proves mistaken. However, as with self-defense, force must be proportionate to the threat, and deadly force may only be used when the protected person faced a threat of death or serious bodily harm.

Defense of Property

Another recognized tort defense is the defense of property. Property owners may use reasonable, non-deadly force to prevent trespass or theft. For example, a shopkeeper may use limited force to detain a suspected shoplifter, provided it is reasonable under the circumstances. Courts generally do not allow deadly force solely to protect property, with rare exceptions where personal safety is also threatened. The defense is carefully limited to avoid encouraging disproportionate violence over material goods.

Consent

Consent is a complete defense to certain tort claims. If the plaintiff voluntarily agrees to the defendant’s conduct, liability may be negated. Consent may be express (e.g., signing a waiver) or implied (e.g., participating in a contact sport where physical contact is expected). However, consent obtained through fraud, coercion, or given by someone lacking capacity (such as a minor in certain cases) is invalid. Importantly, consent is limited to the scope of the agreement; exceeding that scope may still result in liability.

Necessity

The defense of necessity applies when a defendant intentionally interferes with another’s property to prevent a greater harm. For instance, breaking into a cabin during a snowstorm to avoid freezing may be justified. Tort law distinguishes between:

  • Public necessity: Acts taken to protect the community at large (e.g., destroying property to stop a fire’s spread). Typically, no compensation is required.
  • Private necessity: Acts taken to protect a single individual’s interests. The act may be justified, but the defendant may still be liable for actual damages caused.

Frequently Asked Questions

1. What are the main tort defenses?

Common tort defenses include self-defense, defense of others, defense of property, consent, and necessity. Some jurisdictions also recognize assumption of risk and contributory negligence.

2. Can I use deadly force to protect my property?

Generally, no. Courts rarely allow deadly force to defend property unless there is also a threat to personal safety.

3. Does mistaken belief affect self-defense or defense of others?

If the belief was reasonable under the circumstances, courts may uphold the defense even if the danger was not real.

4. How does consent work as a tort defense?

If the plaintiff voluntarily agreed to the defendant’s conduct, the defendant may avoid liability. However, consent obtained by fraud or coercion is invalid.

5. What is the difference between public and private necessity?

Public necessity protects actions taken to prevent harm to the community, often without liability. Private necessity justifies the act but may still require the defendant to pay for damages.

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