Torts I

Self-Defense

A non-aggressor may use self-defense to stop an impending battery.

There are three elements:

  1. Necessity
  2. Proportionality
    • The amount of force
      • Can only use force that is or reasonably appears to be necessary
  3. Reasonable belief
    • Must have reasonable ground to believe that use of force is necessary
Aggressor

An aggressor is a person whose affirmative, unlawful act is reasonably calculated to produce an affray.

If the aggressor stops and retreats or otherwise stops fighting, he can become a non-aggressor.

Deadly Force

Deadly force is force likely to cause death or serious bodily injury.

Deadly force is only allowed in response to deadly force.

With deadly force, a duty to retreat may apply.

Duty to Retreat

The majority of states have no duty to retreat. One may stand their ground wherever they are legally allowed to be.

Retreat states say that one must retreat if he can do so safely.

Castle Doctrine

The majority of states have a castle doctrine, which says that there is no duty to retreat within one's home.

Some states also apply the castle doctrine to person's business or car.

Self-defense is also a privilege to injured third parties, but defendant may still be liable for negligence.

Defense of Others
Shoe-Stepping Approach

Under the shoe-stepping approach, the person coming to defend a third party "steps into the shoes" of the person he is defending. He then has the same rights and the third party defended.

Mistaken Defense of Other Approach

Under the mistaken defense of other approach, an intervener is privileged to act on his reasonable perception.

This is the Restatement and majority view.

Defense of Property

For defense of property, force is limited to what is reasonably necessary to the situation as it appears to defendant. What is reasonably necessary is determined by the jury.

The owner dispossessed of a chattel may use reasonable force to recover the chattel immediately after dispossession.

  • Pursuit must be fresh
    • Discovery must be prompt
    • Efforts to recover must be prompt and persistent
  • Under the majority rule, the owner must first demand back his property unless it reasonably appears that it would be useless.
  • Force must be only what is reasonable to recover the property
  • Repossessions are allowed as long as it would not cause a breach of the peace.