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2.7: Defenses Against the Intentional Torts

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    Defenses Against the Intentional Torts

    Zahr K. Said

    The most common defenses against the intentional torts are consent and self-defense. Additional defenses, defense of others and defense of property are also sometimes available, as are the defenses of public and private necessity. Consent is a defense for the defendant to plead but it may also be an element for the plaintiff to overcome in pleading if the facts tend to suggest that a plaintiff gave consent to physical contact (which would defeat battery) or to entry onto land (which would defeat trespass). If a person consents to something and the contact or entry on land exceeds the scope of the consent, liability may arise. Often the difficult questions concern the scope of consent given and whether it was given at all. Assuming consent was manifested, its validity will be the final issue to consider. Any consent given through fraud, mistake, duress or incapacity will cause the consent to be invalid.


    O’Brien v. Cunard S.S. Co., Ltd, Supreme Judicial Court of Massachusetts (1891)
    (154 Mass. 272)

    This case presents two questions: First, whether there was any evidence to warrant the jury in finding that the defendant, by any of its servants or agents, committed an assault [a battery][1] on the plaintiff; secondly, whether there was evidence on which the jury could have found that the defendant was guilty of negligence towards the plaintiff. To sustain the first count, which was for an alleged assault, the plaintiff relied on the fact that the surgeon who was employed by the defendant vaccinated her on ship-board, while she was on her passage from Queenstown to Boston.

    On this branch of the case the question is whether there was any evidence that the surgeon used force upon the plaintiff against her will. In determining whether the act was lawful or unlawful, the surgeon’s conduct must be considered in connection with the surrounding circumstances. If the plaintiff’s behavior was such as to indicate consent on her part, he was justified in his act, whatever her unexpressed feelings may have been. In determining whether she consented, he could be guided only by her overt acts and the manifestations of her feelings. Ford v. Ford, 143 Mass. 578; McCarthy v. Railroad Corp., 148 Mass. 550, 552.

    It is undisputed that at Boston there are strict quarantine regulations in regard to the examination of emigrants, to see that they are protected from small-pox by vaccination, and that only those *274 persons who hold a certificate from the medical officer of the steam-ship, stating that they are so protected, are permitted to land without detention in quarantine, or vaccination by the port physician. It appears that the defendant is accustomed to have its surgeons vaccinate all emigrants who desire it, and who are not protected by previous vaccination, and give them a certificate which is accepted at quarantine as evidence of their protection. Notices of the regulations at quarantine, and of the willingness of the ship’s medical officer to vaccinate such as needed vaccination, were posted about the ship in various languages, and on the day when the operation was performed the surgeon had a right to presume that she and the other women who were vaccinated understood the importance and purpose of vaccination for those who bore no marks to show that they were protected.

    By the plaintiff’s testimony, which, in this particular, is undisputed, it appears that about 200 women passengers were assembled below, and she understood from conversation with them that they were to be vaccinated; that she stood about 15 feet from the surgeon, and saw them form in a line, and pass in turn before him; that he “examined their arms, and, passing some of them by, proceeded to vaccinate those that had no mark;” that she did not hear him say anything to any of them; that upon being passed by they each received a card, and went on deck; that when her turn came she showed him her arm; he looked at it, and said there was no mark, and that she should be vaccinated; that she told him she had been vaccinated before, and it left no mark; “that he then said nothing; that he should vaccinate her again;” that she held up her arm to be vaccinated; that no one touched her; that she did not tell him she did not want to be vaccinated; and that she took the ticket which he gave her, certifying that he had vaccinated her, and used it at quarantine. She was one of a large number of women who were vaccinated on that occasion, without, so far as appears, a word of objection from any of them. They all indicated by their conduct that they desired to avail themselves of the provisions made for their benefit. There was nothing in the conduct of the plaintiff to indicate to the surgeon that she did not wish to obtain a card which would save her from detention at quarantine, and to be vaccinated, if necessary, for that *275 purpose. Viewing his conduct in the light of the surrounding circumstances, it was lawful; and there was no evidence tending to show that it was not. The ruling of the court on this part of the case was correct.

    The plaintiff contends that, if it was lawful for the surgeon to vaccinate her, the vaccination was negligently performed. “There was no evidence of want of care or precaution by the defendant in the selection of the surgeon, or in the procuring of the virus or vaccine matter.” Unless there was evidence that the surgeon was negligent in performing the operation, and unless the defendant is liable for this negligence, the plaintiff must fail on the second count.

    Whether there was any evidence of negligence of the surgeon we need not inquire, for we are of opinion that the defendant is not liable for his want of care in performing surgical operations. The only ground on which it is argued that the defendant is liable for his negligence is that he is a servant engaged in the defendant’s business, and subject to its control. We think this argument is founded on a mistaken construction of the duty imposed on the defendant by law. By the fifth section of the act of congress of August 2, 1882, (22 U.S.St. at Large, 188,) it is provided that “every steam-ship or other vessel carrying or bringing emigrant passengers, or passengers other than cabin passengers, exceeding fifty in number, shall carry a duly competent and qualified surgeon or medical practitioner, who shall be rated as such in the ship’s articles, and who shall be provided with surgical instruments, medical comforts, and medicines proper and necessary for diseases and accidents incident to sea voyages, and for the proper medical treatment of such passengers during the voyage, and with such articles of food and nourishment as may be proper and necessary for preserving the health of infants and young children; and the services of such surgeon or medical practitioner shall be promptly given in any case of sickness or disease to any of the passengers or to any infant or young child of any such passengers, who may need his services. For a violation of either of the provisions of this section the master of the vessel shall be liable to a penalty not exceeding two hundred and fifty dollars.”

    Under this statute it is the duty of the ship-owners to provide a competent surgeon, whom the passengers may employ, if they *276 choose, in the business of healing their wounds, and curing their diseases. The law does not put the business of treating sick passengers into the charge of common carriers, and make them responsible for the proper management of it. The work which the physician or surgeon does in such cases is under the control of the passengers themselves. It is their business, not the business of the carrier. They may employ the ship’s surgeon, or some other physician or surgeon who happens to be on board, or they may treat themselves if they are sick, or may go without treatment if they prefer; and, if they employ the surgeon, they may determine how far they will submit themselves to his directions, and what of his medicines they will take and what reject, and whether they will submit to a surgical operation or take the risk of going without it. The master or owners of the ship cannot interfere in the treatment of the medical officer when he attends a passenger. He is not their servant, engaged in their business, and subject to their control as to his mode of treatment. They do their whole duty if they employ a duly qualified and competent surgeon and medical practitioner, and supply him with all necessary and proper instruments, medicines, and medical comforts, and have him in readiness for such passengers as choose to employ him.

    This is the whole requirement of the statute of the United States applicable to such cases; and if, by the nature of their undertaking to transport passengers by sea, they are under a liability at the common law to make provision for their passengers in this respect, that liability is no greater. It is quite reasonable that the owners of a steam-ship used in the transportation of passengers should be required by law to provide a competent person to whom sick passengers can apply for medical treatment, and when they have supplied such a person it would be unreasonable to hold them responsible for all the particulars of his treatment when he is engaged in the business of other persons, in regard to which they are powerless to interfere. The reasons on which it is held in the courts of the United States and of Massachusetts that the owners are liable for the negligence of a pilot in navigating the ship, even though he is appointed by public agencies, and the master has no voice in the selection of him, do not apply to this case. The China, 7 Wall. 53-67; Yates v. Brown, 8 Pick. 23. The pilot is engaged *277 in the navigation of the ship, for which, on grounds of public policy, the owners should be held responsible. The business is theirs, and they have certain rights of control in regard to it. They may determine when and how it shall be undertaken, and the master may displace the pilot for certain causes. But in England it has been held that even in such case the owners are not liable. [cc] The view which we have taken of this branch of the case is fully sustained by a unanimous judgment of the court of appeals of New York in Laubheim v. De Koninglyke N.S. Co., 107 N.Y. 228, 13 N.E.Rep. 781. [cc] We are of opinion that on both parts of the case the rulings at the trial were correct. The evidence excepted to was rightly admitted. Exceptions overruled.

    Note 1. Manifestations of consent can be verbal, in writing, or made orally. But as this case shows, they may also be made through physical actions. Can you think of instances—like the facts reported in this case—in which one’s actions and words may be at odds?

    Note 2. Considering the range of choices Ms. O’Brien faced—remain on the ship and sail home or disembark only after being vaccinated—does her consent seem freely given or under pressures that tort law should acknowledge? Why did O’Brien initially attempt to refuse vaccination? Why do you think she sued? Was her societal status relevant in her experience on the ship?

    Multiple scholars who have delved into the trial record have offered a more thorough account of Ms. O’Brien’s actions. Read the two accounts below. They are somewhat similar even if they have some differences. If these accounts are accurate, does your view of the ruling change?

    From the trial record we learn that Mary O’Brien was a seventeen year-old Irish emigrant traveling with her father and younger brother to Boston in steerage, the cheapest possible accommodations on a passenger ship. Ms. O’Brien was poor, unsophisticated, and not very educated (she did not understand the meaning of the terms “quarantine” and “vaccinate” when she read them on the signs posted around the ship). The steerage steward told the 200 Irish women steerage passengers who were on deck that they had to go below into steerage, without telling them why. (At another point, the male Irish steerage passengers were told to go down into steerage and were “hosed down before they knew what was to be done.”) There was only one way out of the steerage area, a door at the top of a staircase. At the middle of the staircase was a landing occupied by the doctor and two steerage stewards. There was no other exit. The women were lined up in such a way that they could not leave until they had been examined. One of the steerage stewards stood in front of the door leading to the deck so that no one could leave without the surgeon’s order. Mary O’Brien, separated from her father for the first time, nervously avoided getting in line until all the other women had been examined by the doctor and passed through the door leading to the deck. She was left standing alone …in a dim narrow passageway, surrounded by three insistent men clothed in authority. She told the doctor that she had been vaccinated before. He retorted that she “must” be vaccinated. (Although the court’s opinion states that the doctor said that she “should” be vaccinated, Ms. O’Brien testified that he said she “must” be vaccinated.)

    Jody Armour, Just Deserts: Narrative, Perspective, Choice, and Blame, 57 U. Pitt. L. Rev. 525, 532–33 (1996).

    The steerage steward told the 200 women steerage passengers who were on deck that they had to go below into steerage, without telling them the reason. From the steerage area, there was only one door, which was at the top of a staircase. At the middle of the staircase was a landing where the doctor and two steerage stewards positioned themselves. There was no other way to leave steerage. The 200 women were lined up and told that they would not be allowed to leave until they had been examined. One of the steerage stewards stood at the door leading to the deck and let no one leave without the doctor’s order. … The women were lined up, and one by one, passed by the doctor. They were not asked if they wished to be examined. They were not told the purpose of the examination. Dr. Giffen examined each woman’s arm to see if there was a vaccination mark. Those with a mark were allowed to pass. Those without were vaccinated. As they left, the doctor instructed the steward to give each a card. Once the threatening and coercive nature of the situation is acknowledged, the doctor’s actions can be understood as part of the exercise of superior force to compel acquiescence. … She did not get in line, but stood to the side. When she was the only one left, except the two stewards, she went up to the doctor and told him that she had been vaccinated before. He did not inquire about the previous vaccination. How did she know she had received one? What did she know about it? On what part of her body was it administered? He did not examine her to see if there was a mark anyplace else on her body. He did not explain her choices if she had no mark. He did not discuss how a prior vaccination that left no mark would be treated by the public health authorities in Boston. He simply told her she had to be vaccinated.

    Ann C. Shalleck, Feminist Legal Theory and the Reading of OBrien v. Cunard, 57 Mo. L. Rev. 371-372, 383 (1992).

    Shalleck concludes from this additional set of facts that “[i]t was reasonable for her to voice no further objection. It was not reasonable for the doctor to conclude that she had given freely her consent.” We might wonder why the court would withhold such facts given that they were present in the record; we might reasonably wonder why the case continues to be used as an example of manifesting consent, based on a set of facts that offer a distorted, inaccurate reality. In Shalleck’s view, the silencing of Ms. O’Brien is consistent with social patterns: “Women’s experiences of vulnerability and danger have been an important part of their subordination. The law has been slow to acknowledge the circumstances that create threats to women.” Id.

    O’Brien v. Cunard offers an object lesson in law’s power to set certain narratives that become all but impossible to disrupt and reframe. On facts similar to those the court depicts, the rule of the case would still be “good law” and can be cited as such. This is true even though the coercive nature of the vaccination can be discerned in the court’s telling: as an immigrant seeking entry, O’Brien would need to comply with the regulations in place in the United States. She didn’t have all that much freedom to choose otherwise unless she wanted to choose to return to Ireland. Perhaps our recent pandemic makes it clear that there may be times when the governmental mandate to act overcomes individual autonomy to a certain extent in certain contexts. In light of the more accurate facts offered in the accounts above, however, the case reminds us of the power courts possess to fix one version of a story and fit it to the legal rules their opinions clarify and justify. That judicial authority can disempower and silence, or it can empower and bear witness. As readers of these cases, we can learn to read them on many levels.

    Note 3. Revisit the purposes of tort law. Is vaccination a special kind of activity that requires different rules or protections, either to fulfill tort law’s purposes or for social, epidemiological or political reasons?

    Note 4.Distinguish implied license from consent: recall the kicking classmate hypothetical, above, which was drawn from Vosburg v. Putney. Vosburg (not assigned) provided dicta emphasizing that the conduct was wrongful in part because of the context in which the kick occurred: in class, not recess. Vosburg v. Putney, 50 N.W. 403 (Wisc.1891).

    Had the parties been upon the play–grounds of the school, engaged in the usual boyish sports, the defendant being free from malice, wantonness, or negligence, and intending no harm to plaintiff in what he did, we should hesitate to hold the act of the defendant unlawful, or that he could be held liable in this action. Some consideration is due to the implied license of the play–grounds. But it appears that the injury was inflicted in the school, after it had been called to order by the teacher, and after the regular exercises of the school had commenced. Under these circumstances, no implied license to do the act complained of existed, and such act was a violation of the order and decorum of the school, and necessarily unlawful.

    Had this same kick taken place out on the playground, in the rough-and-tumble of recess, for instance, the outcome might have been different. Participation in playground games and other activities in which contact with others is likely may give rise to an implied license. If someone throws a ball at you after you’ve said, “I don’t want to play,” you clearly haven’t agreed to participate, and throwing the ball at you might constitute a battery by the thrower. But if you agree to a game and begin to play it, you’ve agreed to at least some contact, within the expected bounds of the game. How should tort law define the outer limits of that contact? When are those limits exceeded? Anger or insolence made along with the contact? Cheating at the game? Are certain kinds of cheating worse than others, from the perspective of tort law’s aims? Does it matter if the context is amateur versus professional?

    Note 5. Restatement (Second) of Torts § 892 A. Effect of Consent; Comment

    (1) One who effectively consents to conduct of another intended to invade his interests cannot recover in an action of tort for the conduct or for harm resulting from it.
    (2) To be effective, consent must be

    (a) by one who has the capacity to consent or by a person empowered to consent for him, and
    (b) to the particular conduct, or to substantially the same conduct.

    (3) Conditional consent or consent restricted as to time, area or in other respects is effective only within the limits of the condition or restriction.
    (4) If the actor exceeds the consent, it is not effective for the excess.
    (5) Upon termination of consent its effectiveness is terminated, except as it may have become irrevocable by contract or otherwise, or except as its terms may include, expressly or by implication, a privilege to continue to act.

    (1) Consent is willingness in fact for conduct to occur. It may be manifested by action or inaction and need not be communicated to the actor.

    (2) if words or conduct are reasonably understood by another to be intended as consent, they constitute “apparent consent” and are as effective as consent in fact.

    Even when the person concerned does not in fact agree to the conduct of the other, his words or acts or even his inaction may manifest a consent that will justify the other in acting in reliance upon them. This is true when the words or acts or silence and inaction, would be understood by a reasonable person as intended to indicate consent and they are in fact so understood by the other. This conduct is not merely evidence that consent in fact exists, to be weighed against a denial. It is a manifestation of apparent consent, which justifies the other in acting on the assumption that consent is given and is as effective to prevent liability in tort as if there were consent in fact. On the other hand, if a reasonable person would not understand from the words or conduct that consent is given, the other is not justified in acting upon the assumption that consent is given even though he honestly so believes; and there is then no apparent consent.

    Reading the Restatement (Second) of Torts § 892 A, above, can you identify the uses of both objective and subjective standards?

    Check Your Understanding (2-6)

    Question 1. Which of the following plaintiffs is most likely to meet the elements of battery?

    The original version of this chapter contained H5P content. You may want to remove or replace this element.

    Hypothetical: Pro-Football / Miami Dolphins v. Denver Broncos: The incident that gave rise to this lawsuit occurred near the end of the first half of the football game between the Miami Dolphins and the Denver Broncos at a time when the Denver team was leading by a score of 21 to 3. John Haden was playing a free safety position on the Broncos’ defensive team and Dan Park was playing fullback on the Dolphins’ offensive team. The Miami team attempted a forward pass play during which Dan Park ran into a corner of the north end zone as a prospective receiver. That took him into an area which was the defensive responsibility of Mr. Haden. The thrown pass was intercepted near the goal line by a Denver linebacker who then began to run the ball upfield. The interception reversed the offensive and defensive roles of the two teams. As a result of an attempt to block Dan Park in the end zone, John Haden fell to the ground. He then turned and, with one knee on the ground and the other leg extended, watched the play continue upfield. Acting out of anger and frustration, but without a specific intent to injure, Dan Park stepped forward and struck a blow with his right forearm to the back of the kneeling plaintiff’s head with sufficient force to cause both players to fall forward to the ground. Both players arose and, without comment, went to their respective teams along the sidelines. They both returned to play during the second half of the game. Because no official observed it, no foul was called on the disputed play and John Haden made no report of this incident to his coaches or to anyone else during the game. Mr. Haden experienced pain and soreness to the extent that he was unable to play golf as he had planned on the day after the game, he did not seek any medical attention and, although he continued to feel pain, he played on specialty team assignments for the Denver Broncos in games against the Chicago Bears and the San Francisco Forty-Niners on successive Sundays. The Denver Broncos then released Mr. Haden on waivers and he was not claimed by any other team. After losing his employment, Mr. Haden sought medical assistance, at which time it was discovered that he had a neck injury.

    Has Park committed any torts for which Mr. Haden can recover? Why or why not?


    Different jurisdictions have developed diverse boundaries for the privileges associated with defending oneself against the threat of bodily injury, but all have some version of a defense that allows the defendant to use force for their own protection. Some may permit the use of deadly force, some permit only “proportional” or “reasonable” efforts, and others have rules that vary depending on whether one can retreat to one’s car or home, for instance. This is an area of tort law which intersects with criminal law; a self-defense claim may be brought either in response to a civil claim or in response to criminal prosecution or both.

    Almost all jurisdictions have some means of distinguishing a responsive and necessary use of force from an antagonizing or escalating response. If the original aggressor has retreated, for instance, the person who wishes to benefit from self-defense cannot attack the person by stabbing them in the back or throwing a weapon in their direction; their perceived need for protection has been eliminated with the aggressor’s retreat. Similarly, plotting an elaborate later response in consequence of ongoing bullying does not count as self-defense; the law expects a victim of regular bullying to use other means of protection such as reporting to relevant authorities. Self-defense is thus a highly structured defense limited to imminent and reasonably perceived threats and actions that would cause the claimant physical harm. Once the existence of those can be proven, the person seeking to exercise the defense will be protected within the bounds of the rules in their jurisdiction.

    McMurrey Corp. v. Yawn, Court of Civil Appeals of Texas, Texarkana (1940)
    (143 S.W.2d 664)

    Addie Yawn, surviving wife, and the minor children of Girardus H. Yawn, appellees, instituted this suit against the McMurrey Corporation, the McMurrey Petroleum Corporation, the McMurrey Interests, the McMurrey Pipe Line Company, the McMurrey Refining Company, Marvin H. McMurrey, Jim McMurrey, and Lucille McMurrey, for damages occasioned by the alleged wrongful death of Girardus H. Yawn, hereinafter referred to as deceased. It was alleged that the McMurreys were partners, joint adventurers, or joint associates in the ownership and operation of certain oil properties located in Rusk County, among which was the oil lease known as the Pinkston lease, and that one Rudolph Loesewitz was employed by them to guard, supervise and manage said lease; that said Loesewitz as their agent and while acting within the scope or apparent scope of his authority as watchman, manager and operator of said lease, and not in his own self-defense, negligently and carelessly shot and killed deceased. In the alternative it was alleged that the killing of deceased was intentionally brought about by the conspiracy of the McMurreys acting by and through their agent, Loesewitz. All the McMurreys including the several companies answered denying partnership, and all except Jim McMurrey denied that Loesewitz was their employee or agent in any capacity. Jim McMurrey answered that after he purchased the Pinkston lease he employed Loesewitz to look after said lease “generally” and to flow the oil wells located thereon; that at the time Loesewitz killed deceased, he, Loesewitz, “was outside of his employment or the scope of his employment by this defendant; that said Rudolph Loesewitz, at the time of such killing, and immediately prior thereto, was acting in his own self-defense, for all of which this defendant is in no way liable for damages or any part of the damages sued for herein.”

    The record reflects that deceased operated and managed the Pinkston lease before it was purchased by Jim McMurrey. Shortly after its purchase he was discharged, and Loesewitz was employed in his stead. While deceased was working on the Pinkston lease he lived in a house located thereon. This house was purchased either by Jim McMurrey or some one for him, and was being moved on the day deceased was killed. Deceased had removed from the lease before his death. Loesewitz also lived in a house located on the lease about 200 or 300 feet from the house formerly occupied by deceased. After deceased had been discharged by appellant and before his death, some of the oil wells located on this lease had on two occasions been turned on at night, causing the tanks to overflow. Loesewitz thought that deceased was the party who turned on the wells and he so informed Jim McMurrey. On the day of the killing Loesewitz was informed that deceased was on the lease near the house where he had formerly lived. On receiving this information Loesewitz took his shotgun, went to where deceased was, and after speaking a few words to him shot and killed him. Loesewitz testified that threats by deceased to take his life had been, on two occasions, communicated to him; one on the night before, and the other a few minutes before the killing. Loesewitz also testified that, at the time of the killing, deceased by acts committed evidenced an intention to carry said threats into execution and that he shot him in self-defense. It later developed, however, that deceased was unarmed. The jury verdict upon special issues and the judgment rendered thereon were for appellees and against defendants Jim McMurrey, M. H. McMurrey, and the McMurrey Corporation, jointly and severally, who prosecute this appeal. The other defendants were dismissed from the case.

    This action was brought under Article 4671, Sec. 1, R.C.S., by the dependents of deceased for damages for his alleged wrongful killing by Loesewitz. The evidence is undisputed that the killing of deceased was intentional and not the result of negligence. Self-defense was relied on as a justification for said killing. The court below charged the jury as follows:

    “You are charged that by the term ‘wrongful’ as used in Special Issue No. 1, means the use of a greater degree of force than was reasonable and necessary under the circumstances then existing.

    “Now bearing in mind the foregoing definitions and instructions, you will answer *666 the following special issues, to-wit: Special Issue No. 1:

    “Do you find from a preponderance of the evidence that the action of Rudolph Loesewitz in shooting and killing the deceased, Girardus H. Yawn, was wrongful? Answer Yes or No.”

    Jury answer: “Yes.”

    By proposition No. 9 appellants challenge the correctness of this definition when applied to the facts and circumstances surrounding the defense of self-defense as shown by the testimony in the record.

    Appellants’ proposition is: “In a civil suit to recover damages for the alleged wrongful death of the deceased, where the defendant’s pleadings and evidence raise the issue that the deceased had made threats against the life of the defendant, which were communicated to the defendant, and that, by the demonstration made by the deceased, the defendant believed the deceased intended to carry out such threat, and, in defense of himself, he killed the deceased, it is error for the court to submit to the jury the bald question whether the action of the defendant in killing the deceased was wrongful, without instructing the jury upon the law of threats and self-defense and justifiable homicide. An instruction that the term ‘wrongful’, as used in the question, means the use of a greater degree of force than is reasonable and necessary under the circumstances then existing, is entirely inadequate, misleading, and gives to the jury the impression that the killing of the deceased was the exercise of a greater degree of force than was necessary, and was, therefore, wrongful.”

    If Loesewitz was acting in his own self-defense at the time he shot and killed deceased, the killing in law would not be wrongful but justifiable. This is true in a civil action as well as in a criminal action. It was said in the early case of March v. Walker, 48 Tex. 372: “The law of self-defense is the same as in a criminal prosecution, with the exception of the rule of evidence which, in a criminal cause, gives the defendant the benefit of a reasonable doubt. That doubt, however, is as to the facts,—not as to the extent of the right. The stage of the difficulty at which self-defense ceases is just the same, whether the question be investigated civilly or criminally.”

    [***] Loesewitz testified that he thought deceased on two occasions at night had turned on the oil wells located on said lease, causing the oil tanks to overflow; that he had deceased make tracks for comparison with “boot tracks” found near the oil wells; that he reported to the sheriff’s office of Rusk County and to the officers of the Railroad Commission that said oil wells had been turned on. Loesewitz testified further that he went to see the district attorney of Rusk County for the purpose of having deceased placed under a peace bond to avoid having trouble with him. On the night before deceased was killed Loesewitz testified that his (Loesewitz’s) wife told him that deceased “was coming on the lease and get me”; that about fifteen minutes before the killing “T.M. Hill came up and told me that Buck Yawn (deceased) was down on the lease and had a gun and was going to—he said, ‘going to kill you the first time he saw you.’”

    Loesewitz testified further:

    “Q. When Hill told you that, what did you do?
    A. I got me a gun and went down there to get him to carry him to town.

    “Q. Well, how near did you get to him before you saw him?
    A. I judge between 20 and 30 steps.

    “Q. Did you say steps?
    A. I said steps but I mean feet, between 20 and 30 feet.

    “Q. What did you say to him, if anything?
    A. I said, ‘All right, Buck come and go with me, you are going to town.’

    “Q. What did he do, if anything?
    A. He made about two steps and went left hand to his waist–

    “Q. What did you say or do, if anything?
    A. I did not say anything or do anything, I just raised my gun and shot.

    “Q. Then what did you do?
    A. I turned around and went to the Lispen Gasoline plant and called the sheriff’s department and told them to call Jim McMurrey, told them about what had happened.

    *667 “Q. Who was the first person you saw after you had shot Buck Yawn?
    A. My wife—I believe it was my wife.

    “Q. Do you know Mr. Larner?
    A. Yes, I know him.

    “Q. Did you see him first or your wife?
    A. I can not say for sure whether it was him or my wife.

    “Q. What statement, if any, did you make to Mr. Larner about Buck?
    A. The same statement I made to everyone, the only statement I made was to go and watch him and don’t let them take that gun off of him.

    “Q. How long was that after you had fired the shot that had killed Buck Yawn?
    A. About as long as it would take you to walk around—say 100 feet.

    “Q. What was Buck Yawn doing, just prior to the time that you fired the shot that killed him?
    A. He was walking toward me.

    “Q. Was he doing anything else?
    A. Well, when I first seen him he had his back towards me and was walking off.

    “Q. When he started towards you what movement did he make with his hands?
    A. He went left-handed for his shirt, like he was going in his shirt after something.

    “Q. What did you think he was going to do?
    A. I thought my time had come; I thought he would probably kill me.

    “Q. What did you think he was going to kill you with?
    A. I thought he had a gun in his belt.

    “Q. Did you know the reputation that Buck Yawn bore in that neighborhood, and in that vicinity, for being a law-abiding man?
    A. I had heard about him toting a pistol and shooting out lights out of those honkey-tonks up and down the highway.

    “Q. When you put the Ford pick-up in the Rushing garage and walked home, who was it that you were afraid of that night, who was it you were afraid would come, or might?
    A. Well my wife told me it was Buck Yawn.

    “Q. From what your wife had told you about what was going on up at the store, they were going to get you that night, you left it there because you were afraid that Buck Yawn and whoever might be with him would come?
    A. Yes.

    “Q. That was Friday night before the killing on Saturday?
    A. Yes, sir. ”

    This testimony, in our opinion, clearly raises the issue of communicated threats and self-defense, and the court’s definition of the term “wrongful” as applied to the facts in this case is incorrect. If at the time of the killing the deceased by his acts and conduct reasonably induced Loesewitz to believe that deceased was about to attack him with a deadly weapon which would probably cause Loesewitz’ death or some serious bodily injury; or if by the acts of the deceased it reasonably appeared to Loesewitz at the time, viewed from his standpoint alone, that deceased was then about to attack him with a deadly weapon which would probably cause Loesewitz’ death or some serious bodily injury, and if same was reasonably calculated to create in the mind of Loesewitz, and did create in his mind, a reasonable expectation of fear of death or some serious bodily injury, and that Loesewitz then and there moved and actuated by such reasonable expectation of fear of death or serious bodily injury, shot and killed deceased, then under such circumstances the killing would be in his lawful self-defense and would not be “wrongful.”

    Where a person accused of murder seeks to justify himself on the ground of threats against his own life, he may be permitted to introduce evidence of the threats made, but the same shall not be regarded as affording a justification for the offense, unless it be shown that at the time of the homicide the person killed by some act then done manifested an intention to execute the threats so made. If deceased did make threats against the life of Loesewitz and at the time of the killing deceased made such an act or demonstration as reasonably to produce in the mind of Loesewitz, viewed from his standpoint at the time, a belief that deceased then and there intended to execute such threats and to take the life of Loesewitz, or to do him some serious bodily harm, then the killing would not be “wrongful.” It is not essential to the right of self-defense that real danger should exist. If from Loesewitz’ standpoint, taking into consideration all the facts and circumstances surrounding the parties, it reasonably appeared to him that he was in danger of death or serious bodily injury, under the law he had the right to defend against such apparent danger to the same extent as if the danger were real, and if he shot and killed the deceased under such circumstances the killing would not be “wrongful.” *668 [c]. This omission from the definition of the term “wrongful” in the court’s charge preceding Special Issue No. 1 is vital, and calls for a reversal of this case. [cc] The converse of the above is also true; that is to say, if Loesewitz used a greater degree of force than was reasonable and necessary under the circumstances existing at the time of the killing and was not acting in his own necessary self-defense as explained above, the killing would be “wrongful.”

    [***] The judgment is reversed, and the cause remanded.

    Note 1. In what way is the jury instruction the lower court gives in McMurrey Corp. v. Yawn erroneous? Do you think that the omission of a single word is likely to make a difference in a jury verdict concerning the lawfulness of a killing? Why or why not?

    Note 2. How does the court define wrongfulness? Is it through use of a rule or standard? Whose perspective of the circumstances does the court adopt, or through what standard does the court consider self-defense?

    Note 3. Defense of Others. A similar privilege to defend others from harmful or offensive contact exists so long as the intervention is necessary for the protection of the third person. Usually the circumstances must be the same as those necessary to justify self-defense; the idea is that the defender steps into the shoes of the person they are defending and thus the same inquiries will be asked, only they will apply to the defender, not the victim. The proportionality principle is usually the same (although in some jurisdictions the scope of the privilege to defend others is narrower than the scope of self-defense).

    Defense of Property

    R estatement (Second) of Torts § 77 Defense of Possession by Force Not Threatening Death or Serious Bodily Harm

    An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to prevent or terminate another’s intrusion upon the actor’s land or chattels, if

    (a) the intrusion is not privileged or the other intentionally or negligently causes the actor to believe that it is not privileged, and
    (b) the actor reasonably believes that the intrusion can be prevented or terminated only by the force used, and
    (c) the actor has first requested the other to desist and the other has disregarded the request, or the actor reasonably believes that a request will be useless or that substantial harm will be done before it can be made.

    Katko v. Briney, Supreme Court of Iowa (1971)
    (183 N.W.2d 657)

    The primary issue presented here is whether an owner may protect personal property in an unoccupied boarded-up farmhouse against trespassers and thieves by a spring gun capable of inflicting death or serious injury.

    We are not here concerned with a man’s right to protect his home and members of his family. Defendants’ home was several miles from the scene of the incident to which we refer infra. *658 Plaintiff’s action is for damages resulting from serious injury caused by a shot from a 20-gauge spring shotgun set by defendants in a bedroom of an old farmhouse which had been uninhabited for several years. Plaintiff and his companion, Marvin McDonough, had broken and entered the house to find and steal old bottles and dated fruit jars which they considered antiques.

    At defendants’ request plaintiff’s action was tried to a jury consisting of residents of the community where defendants’ property was located. The jury returned a verdict for plaintiff and against defendants for $20,000 actual and $10,000 punitive damages. After careful consideration of defendants’ motions for judgment notwithstanding the verdict and for new trial, the experienced and capable trial judge overruled them and entered judgment on the verdict. Thus we have this appeal by defendants. [***]

    Most of the facts are not disputed. In 1957 defendant Bertha L. Briney inherited her parents’ farm land in Mahaska and Monroe Counties. Included was an 80-acre tract in southwest Mahaska County where her grandparents and parents had lived. No one occupied the house thereafter. Her husband, Edward, attempted to care for the land. He kept no farm machinery thereon. The outbuildings became dilapidated. For about 10 years, 1957 to 1967, there occurred a series of trespassing and housebreaking events with loss of some household items, the breaking of windows and ‘messing up of the property in general’. The latest occurred June 8, 1967, prior to the event on July 16, 1967 herein involved.

    Defendants through the years boarded up the windows and doors in an attempt to stop the intrusions. They had posted ‘no trespass’ signs on the land several years before 1967. The nearest one was 35 feet from the house. On June 11, 1967 defendants set ‘a shotgun trap’ in the north bedroom. After Mr. Briney cleaned and oiled his 20-gauge shotgun, the power of which he was well aware, defendants took it to the old house where they secured it to an iron bed with the barrel pointed at the bedroom door. It was rigged with wire from the doorknob to the gun’s trigger so it would fire when the door was opened. Briney first pointed the gun so an intruder would be hit in the stomach but at Mrs. Briney’s suggestion it was lowered to hit the legs. He admitted he did so ‘because I was mad and tired of being tormented’ but ‘he did not intend to injure anyone’. He gave to explanation of why he used a loaded shell and set it to hit a person already in the house. Tin was nailed over the bedroom window. The spring gun could not be seen from the outside. No warning of its presence was posted.

    Plaintiff lived with his wife and worked regularly as a gasoline station attendant in Eddyville, seven miles from the old house. He had observed it for several years while hunting in the area and considered it as being abandoned. He knew it had long been uninhabited. In 1967 the area around the house was covered with high weeds. Prior to July 16, 1967 plaintiff and McDonough had been to the premises and found several old bottles and fruit jars which they took and added to their collection of antiques. On the latter date about 9:30 p.m. they made a second trip to the Briney property. They entered the old house by removing a board from a porch window which was without glass. While McDonough was looking around the kitchen area plaintiff went to another part of the house. As he started to open the north bedroom door the shotgun went off striking him in the right leg above the ankle bone. Much of his leg, including part of the tibia, was blown away. Only by McDonough’s *659 assistance was plaintiff able to get out of the house and after crawling some distance was put in his vehicle and rushed to a doctor and then to a hospital. He remained in the hospital 40 days.

    Plaintiff’s doctor testified he seriously considered amputation but eventually the healing process was successful. Some weeks after his release from the hospital plaintiff returned to work on crutches. He was required to keep the injured leg in a cast for approximately a year and wear a special brace for another year. He continued to suffer pain during this period. There was undenied medical testimony plaintiff had a permanent deformity, a loss of tissue, and a shortening of the leg.

    The record discloses plaintiff to trial time had incurred $710 medical expense, $2056.85 for hospital service, $61.80 for orthopedic service and $750 as loss of earnings. In addition thereto the trial court submitted to the jury the question of damages for pain and suffering and for future disability.

    Plaintiff testified he knew he had no right to break and enter the house with intent to steal bottles and fruit jars therefrom. He further testified he had entered a plea of guilty to larceny in the nighttime of property of less than $20 value from a private building. He stated he had been fined $50 and costs and paroled during good behavior from a 60-day jail sentence. Other than minor traffic charges this was plaintiff’s first brush with the law. On this civil case appeal it is not our prerogative to review the disposition made of the criminal charge against him.

    The main thrust of defendants’ defense in the trial court and on this appeal is that ‘the law permits use of a spring gun in a dwelling or warehouse for the purpose of preventing the unlawful entry of a burglar or thief’. [***]

    In the statement of issues the trial court stated plaintiff and his companion committed a felony when they broke and entered defendants’ house.

    • In instruction 2 the court referred to the early case history of the use of spring guns and stated under the law their use was prohibited except to prevent the commission of felonies of violence and where human life is in danger. The instruction included a statement breaking and entering is not a felony of violence.
    • Instruction 5 stated: ‘You are hereby instructed that one may use reasonable force in the protection of his property, but such right is subject to the qualification that one may not use such means of force as will take human life or inflict great bodily injury. Such is the rule even though the injured party is a trespasser and is in violation of the law himself.’
    • Instruction 6 stated: ‘An owner of premises is prohibited from willfully or intentionally injuring a trespasser by means of force that either takes life or inflicts great bodily injury; and therefore a person owning a premise is prohibited from setting out ‘spring guns’ and like dangerous devices which will likely take life or inflict great bodily injury, for the purpose of harming trespassers. The fact that the trespasser may be acting in violation of the law does not change the rule. The only time when such conduct of setting a ‘spring gun’ or a like dangerous device is justified would be when the trespasser was committing a felony of violence or a felony punishable by death, or where the trespasser was endangering human life by his act.’
    • Instruction 7, to which defendants made no objection or exception, stated: ‘To entitle the plaintiff to recover for compensatory damages, the burden of proof is upon him to establish by a preponderance of the evidence each and all of the following propositions:

    ‘1. That defendants erected a shotgun trap in a vacant house on land owned by defendant, *660 Bertha L. Briney, on or about June 11, 1967, which fact was known only by them, to protect household goods from trespassers and thieves.

    ‘2. That the force used by defendants was in excess of that force reasonably necessary and which persons are entitled to use in the protection of their property.

    ‘3. That plaintiff was injured and damaged and the amount thereof.

    ‘4. That plaintiff’s injuries and damages resulted directly from the discharge of the shotgun trap which was set and used by defendants.’

    The overwhelming weight of authority, both textbook and case law, supports the trial court’s statement of the applicable principles of law. [***]

    Restatement of Torts, section 85, page 180, states: ‘The value of human life and limb, not only to the individual concerned but also to society, so outweights [sic] the interest of a possessor of land in excluding from it those whom he is not willing to admit thereto that a possessor of land has, as is stated in s 79, no privilege to use force intended or likely to cause death or serious harm against another whom the possessor sees about to enter his premises or meddle with his chattel, unless the intrusion threatens death or serious bodily harm to the occupiers or users of the premises. * * * A possessor of land cannot do indirectly and by a mechanical device that which, were he present, he could not do immediately and in person. Therefore, he cannot gain a privilege to install, for the purpose of protecting his land from intrusions harmless to the lives and limbs of the occupiers or users of it, a mechanical device whose only purpose is to inflict death or serious harm upon such as may intrude, by giving notice of his intention to inflict, by mechanical means and indirectly, harm which he could not, even after request, inflict directly were he present.’

    In Volume 2, Harper and James, The Law of Torts, section 27.3, pages 1440, 1441, this is found: ‘The possessor of land may not arrange his premises intentionally so as to cause death or serious bodily harm to a trespasser. The possessor may of course take some steps to repel a trespass. If he is present he may use force to do so, buy only that amount which is reasonably necessary to effect the repulse. Moreover if the trespass threatens harm to property only—even a theft of property—the possessor would not be privileged to use deadly force, he may not arrange his premises so that such force will be inflicted by mechanical means. If he does, he will be liable even to a thief who is injured by such device.’

    [Omitting review of additional cases holding property owners liable for harms committed to entrants on land through use of excessive force omitted]

    In Wisconsin, Oregon and England the use of spring guns and similar devices is specifically made unlawful by statute. [c]

    *662 The legal principles stated by the trial court in instructions 2, 5 and 6 are well established and supported by the authorities cited and quoted supra. There is no merit in defendants’ objections and exceptions thereto. Defendants’ various motions based on the same reasons stated in exceptions to instructions were properly overruled.

    Plaintiff’s claim and the jury’s allowance of punitive damages, under the trial court’s instructions relating thereto, were not at any time or in any manner challenged by defendants in the trial court as not allowable. We therefore are not presented with the problem of whether the $10,000 award should be allowed to stand. [***] Study and careful consideration of defendants’ contentions on appeal reveal no reversible error. Affirmed.

    LARSON, Justice.

    I respectfully dissent, first, because the majority wrongfully assumes that by installing a spring gun in the bedroom of their unoccupied house the defendants intended to shoot any intruder who attempted to enter the room. Under the record presented here, that was a fact question. Unless it is held that there property owners are liable for any injury to an intruder from such a device regardless of the intent with which it is installed, liability under these pleadings must rest upon two definite issues of fact, i.e., did the defendants intend to shoot the invader, and if so, did they employ unnecessary and unreasonable force against him?

    It is my feeling that the majority oversimplifies the impact of this case on the law, not only in this but other jurisdictions, *663 and that it has not thought through all the ramifications of this holding. There being no statutory provisions governing the right of an owner to defend his property by the use of a spring gun or other like device, or of a criminal invader to recover punitive damages when injured by such an instrumentality while breaking into the building of another, our interest and attention are directed to what should be the court determination of public policy in these matters. On both issues we are faced with a case of first impression. We should accept the task and clearly establish the law in this jurisdiction hereafter. I would hold there is no absolute liability for injury to a criminal intruder by setting up such a device on his property, and unless done with an intent to kill or seriously injure the intruder, I would absolve the owner from liability other than for negligence. I would also hold the court had no jurisdiction to allow punitive damages when the intruder was engaged in a serious criminal offense such as breaking and entering with intent to steal.

    It appears to me that the learned trial court was and the majority is now confused as to the basis of liability under the circumstances revealed. Certainly, the trial court’s instructions did nothing to clarify the law in this jurisdiction for the jury. Timely objections to Instructions Nos. 2, 5 and 6 were made by the defendants, and thereafter the court should have been aware of the questions of liability left unresolved, i.e., whether in this jurisdiction we by judicial declaration bar the use in an unoccupied building of spring guns or other devices capable of inflicting serious injury or death on an intruder regardless of the intent with which they are installed, or whether such an intent is a vital element which must be proven in order to establish liability for an injury inflicted upon a criminal invader.

    Although the court told the jury the plaintiff had the burden to prove ‘That the force used by defendants was in excess of that force reasonably necessary and which persons are entitled to use in the protection of their property’, it utterly failed to tell the jury it could find the installation was not made with the intent or purpose of striking or injuring the plaintiff. There was considerable evidence to that effect. As I shall point out, both defendants stated the installation was made for the purpose of scaring or frightening away any intruder, not to seriously injure him. It may be that the evidence would support a finding of an intent to injure the intruder, but obviously that important issue was never adequately or clearly submitted to the jury.

    Unless, then, we hold for the first time that liability for death or injury in such cases is absolute, the matter should be remanded for a jury determination of defendant’s intent in installing the device under instructions usually given to a jury on the issue of intent. In the case at bar the plaintiff was guilty of serious criminal conduct, which event gave rise to his claim against defendants. Even so, he may be eligible for an award of compensatory damages which so far as the law is concerned redresses him and places him in the position he was prior to sustaining the injury. The windfall he would receive in the form of punitive damages is bothersome to the principle of damages, because it is a response to the conduct of the defendants rather than any reaction to the loss suffered by plaintiff or any measurement of his worthiness for the award.

    When such a windfall comes to a criminal as a result of his indulgence in serious criminal conduct, the result is intolerable and indeed shocks the conscience. If we find the law upholds such a result, the criminal would be permitted by operation of law to profit from his own crime. [***] We cannot in good conscience ignore the conduct of the plaintiff. He does not come into court with clean hands, and attempts to make a claim to punitive damages in part on his own criminal conduct. In such circumstances, to enrich him would be unjust, and compensatory damages in such a case itself would be a sufficient deterrent to the defendant or others who might intend to set such a device. [***]

    The admonitory function of the tort law is adequately served where the compensatory damages claimed are high and the granted award itself may act as a severe punishment and a deterrence. In such a case as we have here there is no need to hold out the prospect of punitive damages as an incentive to sue and rectify a minor physical damage such as a redress for lost dignity. Certainly this is not a case where defendants might profit in excess of the amount of reparation they may have to pay. In a case of this kind there is no overwhelming social purpose to be achieved by punishing defendants beyond the compensatory sum claimed for damages.

    Note 1. How does what you have learned about the rules of defense stack up against the use of mechanized instruments of harm such as spring guns? Does it matter if the spring guns are likely to be lethal or merely to cause danger? Can you think of any conditions in which traps or mechanisms that intentionally cause physical harm might be lawful under tort law’s various defense principles?

    Note 2. Review the jury instructions cited in Katko. If you were a juror with only lay experience and no legal knowledge, do you think they would be straightforward to apply? What if anything do you think would help improve them?

    Note 3. The dissent takes a strongly critical view of Katko’s status on the property: he was a trespasser (not doing so for the first time), and a burglar. To what extent should the interaction of the criminal and civil systems’ purposes be weighed against each other in determinations of both liability and damages in tort law? Does the majority get this right or are you more persuaded by the dissent? Note that this edited version mostly omits discussion of the punitive damages Katko had been granted and which were not properly appealed, and thus were not reversed. These “extra” damages were part of what drove the dissenting opinion. The Brineys did not have the resources to pay the court-ordered damages and had to sell 80 of their 120 acres to pay the judgment. The decision generated public rebuke and various states introduced laws strengthening self-defense provisions. These “Briney Bills” were not always passed and in at least one case, one was passed but struck down as unconstitutional.

    Public Necessity

    Surocco v. Geary, Supreme Court of California (1853)
    (3 Cal. 69)

    This was an action, commenced in the court below, to recover damages for blowing up and destroying the plaintiffs’ house and property, during the fire of the 24th of December, 1849.

    Geary, at that time Alcalde of San Francisco, justified, on the ground that he had the authority, by virtue of his office, to destroy said building, and also that it had been blown up by him to stop the progress of the conflagration then raging.

    It was in proof, that the fire passed over and burned beyond the building of the plaintiffs’, and that at the time said building was destroyed, they were engaged in removing their property, and could, had they not been prevented, have succeeded in removing more, if not all of their goods. The cause was tried by the court sitting as a jury, and a verdict rendered for the plaintiffs, from which the defendant prosecutes this appeal under the Practice Act of 1850.

    The only question for our consideration is, whether the person who tears down or destroys the house of another, in good faith, and under apparent necessity, during the time of a conflagration, for the purpose of saving the buildings adjacent, and stopping its progress, can be held personally liable in an action by the owner of the property destroyed.

    *73 This point has been so well settled in the courts of New York and New Jersey, that a reference to those authorities is all that is necessary to determine the present case. The right to destroy property, to prevent the spread of a conflagration, has been traced to the highest law of necessity, and the natural rights of man, independent of society or civil government. “It is referred by moralists and jurists to the same great principle which justifies the exclusive appropriation of a plank in a shipwreck, though the life of another be sacrificed; with the throwing overboard goods in a tempest, for the safety of a vessel; with the trespassing upon the lands of another, to escape death by an enemy. It rests upon the maxim, Necessitas inducit privilegium quod jura privata.”

    The common law adopts the principles of the natural law, and places the justification of an act otherwise tortious precisely on the same ground of necessity. [c] This principle has been familiarly recognized by the books from the time of the saltpetre case, and the instances of tearing down houses to prevent a conflagration, or to raise bulwarks for the defence of a city, are made use of as illustrations, rather than as abstract cases, in which its exercise is permitted. At such times, the individual rights of property give way to the higher laws of impending necessity.

    A house on fire, or those in its immediate vicinity, which serve to communicate the flames, becomes a nuisance, which it is lawful to abate, and the private rights of the individual yield to the considerations of general convenience, and the interests of society. Were it otherwise, one stubborn person might involve a whole city in ruin, by refusing to allow the destruction of a building which would cut off the flames and check the progress of the fire, and that, too, when it was perfectly evident that his building must be consumed.

    The respondent has invoked the aid of the constitutional provision which prohibits the taking of private property for public use, without just compensation being made therefor. This is not “a taking of private property for public use,” within the meaning of the Constitution. The right of taking individual property for public purposes *74 belongs to the State, by virtue of her right of eminent domain, and is said to be justified on the ground of state necessity; but this is not a taking or a destruction for a public purpose, but a destruction for the benefit of the individual or the city, but not properly of the State. The counsel for the respondent has asked, who is to judge of the necessity of the destruction of property? This must, in some instances, be a difficult matter to determine.

    The necessity of blowing up a house may not exist, or be as apparent to the owner, whose judgment is clouded by interest, and the hope of saving his property, as to others. In all such cases the conduct of the individual must be regulated by his own judgment as to the exigencies of the case. If a building should be torn down without apparent or actual necessity, the parties concerned would undoubtedly be liable in an action of trespass. But in every case the necessity must be clearly shown. It is true, many cases of hardship may grow out of this rule, and property may often in such cases be destroyed, without necessity, by irresponsible persons, but this difficulty would not be obviated by making the parties responsible in every case, whether the necessity existed or not.

    The legislature of the State possess[es] the power to regulate this subject by providing the manner in which buildings may be destroyed, and the mode in which compensation shall be made; and it is to be hoped that something will be done to obviate the difficulty, and prevent the happening of such events as those supposed by the respondent’s counsel. In the absence of any legislation on the subject, we are compelled to fall back upon the rules of the common law.

    The evidence in this case clearly establishes the fact, that the blowing up of the house was necessary, as it would have been consumed had it been left standing. The plaintiffs cannot recover for the value of the goods which they might have saved; they were as much subject to the necessities of the occasion as the house in which they were situate; and if in such cases a party was held liable, it would too frequently happen, that the delay caused by the removal of the goods would render the destruction of the house useless.

    *75 The court below clearly erred as to the law applicable to the facts of this case. The testimony will not warrant a verdict against the defendant. Judgment reversed.

    Note 1. Can you think of other doctrines you have learned that might be relevant here, or other areas in which you have encountered limitations on tort liability that are traceable to concerns like those in Surocco? What justifications, and what sorts of tradeoffs, do situations like this one involve, for tort law? That is, in circumstances in which dangers are present, hazards are developing rapidly or changing, and the parties possess only imperfect information, the risks of any decision are high yet proceeding with the regular amounts of caution may impose unacceptable delays and costs. How should tort law balance these competing concerns?

    Note 2. Note that this case predates The California Tort Claims Act (1963) in which the state government waived some sovereign immunity, though not all; municipal entities would likely have been unreachable at this time other than by suing the individuals involved, as in this case. Nonetheless, in the way that the Surocco court applies the substantive law, it effectively carves a sphere of discretionary decisionmaking for the Alcalde that shares common ground with the discretionary function exception you have learned about above.

    Note 3. Constitutional questions. What concerns might you have regarding the seizure of private property by government officials? What sort of proof should be required of governments asserting this defense? The “Takings Clause” under the Fifth Amendment of the United States Constitution prevents the federal government from taking “private property” even “for public use, without just compensation.” The Fourteenth Amendment extends the Fifth Amendment to state governments. Ordinarily, then if the government uses or destroys private property, even for public use, it must pay “just compensation.” How well do you think tort law’s “public necessity” defense squares with this constitutional protection?

    Private Necessity

    Vincent v. Lake Erie Transp. Co., Supreme Court of Minnesota. (1910)
    (109 Minn. 456)

    The steamship Reynolds, owned by the defendant, was for the purpose of discharging her cargo on November 27, 1905, moored to plaintiff’s dock in Duluth. While the unloading of the boat was taking place a storm from the northeast developed, which at about 10 o’clock p. m., when the unloading was completed, had so grown in violence that the wind was then moving at 50 miles per hour and continued to increase during the night. There is some evidence that one, and perhaps two, boats were able to enter the harbor that night, but it is plain that navigation was practically suspended from the hour mentioned until the morning of the 29th, when the storm abated, and during that time no master would have been justified in attempting to navigate his vessel, if he could avoid doing so. After the discharge of the cargo the Reynolds signaled for a tug to tow her from the dock, but none could be obtained because of the severity of the storm. If the lines holding the ship to the dock had been cast off, she would doubtless have drifted away; but, instead, the lines were kept fast, and as soon as one parted or chafed it was replaced, sometimes with a larger one. The vessel lay upon the outside of the dock, her bow to the east, the wind and waves striking her starboard quarter with such force that she was constantly *458 being lifted and thrown against the dock, resulting in its damage, as found by the jury, to the amount of $500.

    We are satisfied that the character of the storm was such that it would have been highly imprudent for the master of the Reynolds to have attempted to leave the dock or to have permitted his vessel to drift a way from it. One witness testified upon the trial that the vessel could have been warped into a slip, and that, if the attempt to bring the ship into the slip had failed, the worst that could have happened would be that the vessel would have been blown ashore upon a soft and muddy bank. The witness was not present in Duluth at the time of the storm, and, while he may have been right in his conclusions, those in charge of the dock and the vessel at the time of the storm were not required to use the highest human intelligence, nor were they required to resort to every possible experiment which could be suggested for the preservation of their property. Nothing more was demanded of them than ordinary prudence and care, and the record in this case fully sustains the contention of the appellant that, in holding the vessel fast to the dock, those in charge of her exercised good judgment and prudent seamanship.

    It is claimed by the respondent that it was negligence to moor the boat at an exposed part of the wharf, and to continue in that position after it became apparent that the storm was to be more than usually severe. We do not agree with this position. The part of the wharf where the vessel was moored appears to have been commonly used for that purpose. It was situated within the harbor at Duluth, and must, we think, be considered a proper and safe place, and would undoubtedly have been such during what would be considered a very severe storm. The storm which made it unsafe was one which surpassed in violence any which might have reasonably been anticipated.

    The appellant contends by ample assignments of error that, because its conduct during the storm was rendered necessary by prudence and good seamanship under conditions over which it had no control, it cannot be held liable for any injury resulting to the property of others, and claims that the jury should have been so instructed. An analysis of the charge given by the trial court is not necessary, as in our opinion the only question for the jury was the amount of damages *459 which the plaintiffs were entitled to recover, and no complaint is made upon that score.

    The situation was one in which the ordinary rules regulating properly rights were suspended by forces beyond human control, and if, without the direct intervention of some act by the one sought to be held liable, the property of another was injured, such injury must be attributed to the act of God, and not to the wrongful act of the person sought to be charged. If during the storm the Reynolds had entered the harbor, and while there had become disabled and been thrown against the plaintiffs’ dock, the plaintiffs could not have recovered. Again, if which attempting to hold fast to the dock the lines had parted, without any negligence, and the vessel carried against some other boat or dock in the harbor, there would be no liability upon her owner. But here those in charge of the vessel deliberately and by their direct efforts held her in such a position that the damage to the dock resulted, and, having thus preserved the ship at the expense of the dock, it seems to us that her owners are responsible to the dock owners to the extent of the injury inflicted.

    In Depue v. Flatau, 100 Minn. 299, this court held that where the plaintiff, while lawfully in the defendants’ house, became so ill that he was incapable of traveling with safety, the defendants were responsible to him in damages for compelling him to leave the premises. If, however, the owner of the premises had furnished the traveler with proper accommodations and medical attendance, would he have been able to defeat an action brought against him for their reasonable worth?

    In Ploof v. Putnam, 71 Atl. 188, the Supreme Court of Vermont held that where, under stress of weather, a vessel was without permission moored to a private dock at an island in Lake Champlain owned by the defendant, the plaintiff was not guilty of trespass, and that the defendant was responsible in damages because his representative upon the island unmoored the vessel, permitting it to drift upon the shore, with resultant injuries to it. If, in that case, the vessel had been permitted to remain, and the dock had suffered an injury, we believe the shipowner would have been held liable for the injury done.

    *460 Theologians hold that a starving man may, without moral guilt, take what is necessary to sustain life; but it could hardly be said that the obligation would not be upon such person to pay the value of the property so taken when he became able to do so. And so public necessity, in times of war or peace, may require the taking of private property for public purposes; but under our system of jurisprudence compensation must be made.

    Let us imagine in this case that for the better mooring of the vessel those in charge of her had appropriated a valuable cable lying upon the dock. No matter how justifiable such appropriation might have been, it would not be claimed that, because of the overwhelming necessity of the situation, the owner of the cable could not recover its value.

    This is not a case where life or property was menaced by any object or thing belonging to the plaintiff, the destruction of which became necessary to prevent the threatened disaster. Nor is it a case where, because of the act of God, or unavoidable accident, the infliction of the injury was beyond the control of the defendant, but is one where the defendant prudently and advisedly availed itself of the plaintiffs’ property for the purpose of preserving its own more valuable property, and the plaintiffs are entitled to compensation for the injury done.

    Order affirmed.

    LEWIS, J.

    I dissent. It was assumed on the trial before the lower court that appellant’s liability depended on whether the master of the ship might, in the exercise of reasonable care, have sought a place of safety before the storm made it impossible to leave the dock. The majority opinion assumes that the evidence is conclusive that appellant moored its boat at respondent’s dock pursuant to contract, and that the vessel was lawfully in position at the time the additional cables were fastened to the dock, and the reasoning of the opinion is that, because appellant made use of the stronger cables to hold the boat in position, it became liable under the rule that it had voluntarily made use of the property of another for the purpose of saving its own.

    *461 In my judgment, if the boat was lawfully in position at the time the storm broke, and the master could not, in the exercise of due care, have left that position without subjecting his vessel to the hazards of the storm, then the damage to the dock, caused by the pounding of the boat, was the result of an inevitable accident. If the master was in the exercise of due care, he was not at fault. The reasoning of the opinion admits that if the ropes, or cables, first attached to the dock had not parted, or if, in the first instance, the master had used the stronger cables, there would be no liability. If the master could not, in the exercise of reasonable care, have anticipated the severity of the storm and sought a place of safety before it became impossible, why should he be required to anticipate the severity of the storm, and, in the first instance, use the stronger cables?

    I am of the opinion that one who constructs a dock to the navigable line of waters, and enters into contractual relations with the owner of a vessel to moor at the same, takes the risk of damage to his dock by a boat caught there by a storm, which event could not have been avoided in the exercise of due care, and further, that the legal status of the parties in such a case is not changed by renewal of cables to keep the boat from being cast adrift at the mercy of the tempest.

    Note 1. Does the private necessity doctrine, expounded upon here in Vincent, seem to you to be consistent with, or to diverge from, the principle that there is no duty to rescue at common law? What principles does it reflect, and what concerns does it seem to try to balance?

    Note 2. Does private necessity create a categorical defense (like an immunity?) or a fact-based defense (like a privilege or other form of circumstance-specific defense)? Why might this matter?

    Note 3.Ideological Underpinnings of the Necessity Doctrines. Consider the moral and philosophical values expressed in the public and private necessity doctrines as defenses to trespass. These defenses take a position on the value and objective defensibility of various actions that may seem subjectively necessary to the actor at the time of the unauthorized use of land or property. In a thoughtful article exploring different conceptions of property against a backdrop of cultures, political institutions and intellectual theories, Professor Monica E. Eppinger notes the constructedness of the law’s understanding of private and public uses of space. She provides a hypothetical as a means of exploring the law’s unstated commitments to certain values over others:

    Four adults, desperate to find a home at an affordable cost, together with their families (including several children) inhabit homes in a development project suspended due to delayed authorizations. The four friends and their families work on both the buildings and the land to enhance their living conditions (for instance, by painting the walls and adding a little garden). After a couple of months, the legal manager of the land discovers them and brings legal action against them. Monica E. Eppinger, The Challenge of the Commons: Beyond Trespass and Necessity, 66 Am. J. Comp. L. 1, 17 (2018) (citations omitted)

    Eppinger surveys relevant doctrines in tort and property law and explores the “necessity” defenses:

    If the use were in pursuit of a public good, for example using vacant premises to provide volunteer healthcare to irregular migrants, … the defense the defendant would assert is public rather than private necessity. …If the defendant trespassed out of public necessity, unlike private necessity, she owes no compensation even if the property was harmed. The public necessity defense would only apply if the defendant could demonstrate she commandeered the building to avert an imminent threat to the public—for example, preventing or alleviating a deadly epidemic. … A situation that gives rise to necessity is imagined as an “emergency” and the privilege must be exercised “in a reasonable time and in a reasonable manner.” A court during the Great Depression affirmed convictions of several in a crowd convicted of stealing groceries, over defendants’ objections that they were denied the right to present the defense of “economic necessity.” Moreover, entry into a dwelling without permission is treated with a higher degree of disfavor than entry into fields, yards, or other forms of real property. Even if a privilege of private necessity is recognized, the trespasser is liable for damage to the property. Id. at 18.

    Eppinger concludes that the legal manager would be successful in ousting the families on the basis of trespass. She observes:

    Until homelessness is considered a matter in which parties hold a “common interest,” it is likely that the law will excuse trespass to tear down a home to save other buildings from fire as a matter of public necessity, but not excuse entry into unused dwelling spaces to save individuals from homelessness…. Such is the strength of the ideology of private property, and the dominance of the right to exclude, that in the United States, people priced out of housing markets and into homelessness do not routinely shelter in vacant buildings (as envisioned in the hypothetical), as they presume title holders to be armed with legal doctrines to facilitate evictions. Id. at 23.

    Is homelessness exacerbated by entrenched default positions in the private law of tort and property? Are Professor Eppinger’s concerns something tort law should consider as its common law continues to develop? If so, are courts the appropriate source of change on the issue, or should changes occur at the legislative or administrative levels? If no changes are called for, what are the strongest justifications for retaining the status quo?

    Check Your Understanding (2-7)

    Question 1. True or False: Private necessity requires a higher standard of proof by the defendant than public necessity, because the private reputational and property interests of the plaintiff mandate higher protections.

    The original version of this chapter contained H5P content. You may want to remove or replace this element.

    1. Editor’s note: Confusingly, the court here makes an older use of the term “assault” to describe the action of battery as we now understand it. The strike-through and the addition of “a battery” are edits to clarify the case; continue to substitute “battery” where the case refers to “assault.”

    This page titled 2.7: Defenses Against the Intentional Torts is shared under a CC BY-NC-SA 4.0 license and was authored, remixed, and/or curated by Zahr K. Said (CALI- The Center for Computer-Assisted Legal Instruction) via source content that was edited to the style and standards of the LibreTexts platform.