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Tort law is a branch of civil law that deals with wrongful acts or omissions resulting in injury or harm to individuals or their property. Modernly, personal injury attorneys are the lawyers who handle most tort cases. In certain circumstances, individuals may be able to assert various affirmative defenses to avoid liability for their actions. One such defense is the defense of necessity, which recognizes that under certain conditions, a person may be justified in causing harm to another to prevent greater harm. This article explores the concept of the affirmative defense of public and private necessity under tort law, its elements, and its application in different jurisdictions.
Video Transcript - What is ‘Necessity’ Under Tort Law?
"0:00 What is necessity under tort law?
0:03 Necessity under tort law is a situation
0:05 where the law allows you to somewhat
0:08 breach your duty because something
0:12 outside the control of society occurred.
0:15 For example you might be excused of a
0:19 trespass or at least have your damages
0:21 reduced in a trespass if there was a
0:24 fire and you needed to break into
0:26 someone’s water barn in order to get a
0:28 hose and attach water in order to put
0:31 out the fire even though it wasn’t your
0:33 property because there was a fire you
0:36 needed to access someone else’s property
0:37 in order to put it out you would still
0:39 be liable for the damages that occurred,
0:42 assuming that it was private necessity.
0:45 But if it was a public necessity where
0:48 the general good of the public
0:53 was required for you to to violate that
0:57 privilege, such as a trespass or
0:59 breaching someone’s property rights
1:01 under the law public necessity you would
1:04 not be liable for damage that you caused. [Music]"
What is an Affirmative Defense?
An affirmative defense is a legal strategy a defendant uses in response to a claim or accusation made by the plaintiff. It is an assertion that, even if the Defendant did commit the act alleged by the plaintiff, some legal justifications or excuses would either lessen their liability or completely absolve them from liability. By raising an affirmative defense, the Defendant aims to provide evidence or arguments that challenge the plaintiff’s claim and provide a legal basis for their actions.
An affirmative defense aims to shift the burden of proof from the plaintiff to the Defendant. Instead of denying the plaintiff’s allegations, Defendant presents evidence or arguments affirmatively supporting their position. In doing so, Defendant acknowledges the alleged act but asserts that there are circumstances that excuse, justify, or mitigate their actions.
Some common affirmative defenses include:
This defense is used when the Defendant claims they acted in reasonable self-defense to protect themselves or others from imminent harm or danger. It asserts that their actions were necessary and proportionate given the circumstances.
The defense of consent argues that the plaintiff voluntarily agreed to or authorized the Defendant’s actions, thereby eliminating any claim of harm or liability. This defense is often raised in physical contact, sports, or medical procedures.
Defense of property
This defense is based on the notion that the Defendant’s actions were necessary to protect their property or the property of others from harm or theft. It asserts that the Defendant had a legitimate interest in defending the property.
As discussed earlier, the defense of necessity is used when Defendant claims their actions were necessary to prevent more significant harm or danger. It argues that the harm caused by their actions was outweighed by the harm that would have occurred had they not taken action.
By raising an affirmative defense, Defendant seeks to provide a legal justification or excuse for their actions, which can mitigate or ultimately defeat their legal liability. However, affirmative defenses’ specific requirements, elements, and availability can vary depending on the jurisdiction and case circumstances. It is essential to consult with a legal professional to understand the applicable affirmative defenses and their potential impact on the case.
Is Necessity a Defense to Intentional Torts?
The defense of necessity can be asserted in certain situations as a defense against intentional torts. Still, its application may vary depending on the jurisdiction and the case’s circumstances. In general, necessity is more commonly associated with providing a defense to certain torts involving property or trespass rather than intentional torts that involve direct harm to individuals.
For example, the defense of necessity is often raised in trespass to land or property damage where the Defendant’s actions were taken to prevent imminent harm to themselves or others. If the Defendant’s intentional actions were necessary to avoid more significant harm, they may be able to assert the defense of necessity.
However, for intentional torts that involve direct harm to individuals, such as assault, battery, or defamation, the defense of necessity is generally less applicable. These intentional torts involve actions specifically intended to cause harm, and the courts tend to be more reluctant to excuse or justify such actions based on the defense of necessity.
In some jurisdictions, there might be limited recognition of the defense of necessity for certain intentional torts under specific circumstances. For example, if someone uses force against another person in self-defense, they may be able to assert the defense of necessity to justify their actions. However, the requirements and elements for successfully invoking the defense of necessity in intentional tort cases can be more stringent than in cases involving property or trespass.
In summary, while necessity can serve as a defense to intentional torts in some cases, its application is typically more straightforward and established in cases involving property or trespass. For intentional torts involving direct harm to individuals, the defense of necessity may be more challenging to assert successfully and may have limited applicability. It is essential to consult with a legal professional to understand the specific requirements and potential outcomes of asserting the defense of necessity in an intentional tort case.
Understanding the Affirmative Necessity Defense
The defense of necessity is based on the principle that when an individual faces an imminent and significant danger, they should not be held liable for any harm caused while attempting to avert that danger. The defense of necessity is rooted in the idea that individuals are compelled to choose the lesser of two evils in such circumstances.
What is the difference between Public Necessity and Private Necessity in California?
The defense is recognized in California for public and private necessity fact patterns. While both are based on the principle of choosing the lesser of two evils, they differ in scope and application.
Let’s explore the differences in California:
Public necessity is a defense that applies when an individual’s actions, which would otherwise be considered a tort or a violation of another person’s property rights, are taken for the greater public good or to prevent significant public harm. In this scenario, the defense of public necessity may protect the Defendant from liability for any harm caused in the pursuit of the greater good.
During a natural disaster, a government agency may need to divert water onto the plaintiff’s land to prevent severe flooding in a nearby town. In that case, the private property owner cannot sue the government for trespass or damage.
Private Necessity Defense
On the other hand, personal necessity is a defense that applies when an individual’s actions, which would otherwise be considered a tort or a violation of another person’s property rights, are taken to protect their interests or prevent harm to themselves or their property. In this scenario, this defense may provide limited protection to the Defendant from liability for the harm caused. However, they may still be required to compensate the injured party for any damage.
During a heavy storm, people seek refuge in a neighbor’s garage to protect themselves from the elements. In this case, the defense may apply. While the person may not be held liable for trespassing, they may still be responsible for any damage caused to the neighbor’s property during their shelter.
Elements of the Private Necessity Defense
For the defense to apply, certain elements must be met:
Imminent Danger, “Self Defense,” or “Peril”
The Defendant must demonstrate that they faced a clear and immediate danger threatening their life, limb, or property. The danger must be more severe than the harm caused in averting it.
No Reasonable Alternative
The defendant must establish that there were no reasonable alternatives to prevent the harm other than their actions. This means that they had to choose between two unavoidable harms.
The Defendant’s response to the imminent peril must be proportional to the harm they sought to prevent. This means that the harm caused in averting the danger should not exceed the harm that would have occurred if the action was not taken.
Application of the Defense of Necessity in Tort Law
The defense of necessity can be applied in various situations under tort law. Some common scenarios where this defense may arise include:
In cases where an individual causes damage to another person’s property to prevent more significant harm, the defense of necessity may be invoked. For example, breaking a window to rescue someone trapped in a burning building would not be considered a criminal act in most cases due to such overwhelming urgency to survive. However, suppose a fire raged nearby the plaintiff’s property, and you broke the window when you could have used a door. In that case, the court may rule you had criminal intent since a reasonable person would not have seen an impending necessity. If there are other reasonable alternatives, you must use them.
If someone enters another person’s property without permission but does so to prevent imminent harm, they may be able to rely on the defense of necessity. For instance, entering a private garden to save a drowning child would constitute reasonable grounds and be allowed as an absolute defense.
When medical professionals face limited resources and must make difficult decisions to save lives, the defense of necessity may come into play. For instance, in a disaster scenario, prioritizing treatment for critically injured patients over others may be justified under the defense of necessity.
In certain circumstances, drivers may be able to assert the defense of necessity to justify their actions in causing harm to avoid a more significant danger, such as swerving to avoid hitting a pedestrian and causing damage to another vehicle.
Jurisdictional Differences in Necessity Defense
It’s important to note that the defense of necessity is not universally recognized in all jurisdictions or may vary in application. Different jurisdictions have legal frameworks and standards for determining when the defense of necessity can be invoked. Some jurisdictions have narrow interpretations of the defense, while others adopt a more liberal approach.
The main difference between these two defenses lies in the actions’ purpose. Public necessity involves actions taken for the greater good or to prevent significant public harm, while a private necessity defense involves actions taken to protect oneself or one’s property.
If public, the Defendant may be excused from liability for any harm caused by their actions. On the other hand, under the private necessity defense, the Defendant may still be held liable for the harm caused, but the defense can limit their liability.
In a private necessity defense case, the Defendant may be required to compensate the injured party for any damage caused. In contrast, compensation may not be necessary for public necessity as the action is taken for the more significant public benefit.
It’s important to note that the application of these defenses can be complex and fact-specific. Courts in California will consider the specific circumstances of each case.
Examples and Explanations
Suppose a homeless man steals food as he is on the edge of starving to death. The police officer arrests the man, and the homeless man invokes the necessity defense in court, claiming he is in imminent danger of starvation. Typically, the defense will fail as, under criminal law, criminals have free will, and robbing a particular grocery store affirms the homeless man’s free will.
Criminal Acts Are Not a Necessity Defense
In the case of the homeless man stealing food to avoid starvation, the necessity defense would likely fail in a criminal law context. Criminal law generally requires the Defendant to have a voluntary choice and control over their actions. The defense of necessity is often limited to situations where the harm is immediate, significant, and unavoidable. However, the defense may have more potential in civil law or as a mitigating factor in sentencing.
In criminal law, the defense of necessity is typically associated with situations where the Defendant’s actions were taken to prevent imminent harm to themselves or others, such as cases involving self-defense or defense of others. The defense is less commonly accepted for property crimes or crimes involving theft.
While the circumstances of the homeless man’s dire need may elicit sympathy, the criminal justice system often focuses on the legality of the act rather than the underlying circumstances. The court would likely consider stealing food a violation of property rights and the law, regardless of the Defendant’s desperate situation.
Vincent v. Lake Erie Transportation Co.
In the case of Vincent v. Lake Erie Transportation Co., Defendant was at the plaintiff’s dock to unload cargo from the steamship owned by Defendant. Due to a violent storm developed, Defendant was unable to leave the dock safely, so. Instead, he tied the ship to the dock. A sudden wind threw the ship against the dock, significantly causing damage to the plaintiff’s dock. In this case, the Defendant asserted the defense of necessity as a response to the plaintiff’s claim of trespass and damage to property.
Defendant raised the defense of necessity to argue that their actions were justified due to the immediate and unavoidable danger posed by the violent storm. Defendant claimed that they had no reasonable alternative but to tie the ship to the plaintiff’s dock to prevent further harm to the ship, its crew, and potentially to others in the vicinity.
In the case of Vincent v. Lake Erie Transportation Co., the court would evaluate whether the defense of necessity applies in the given circumstances. They would consider whether the harm caused to the plaintiff’s dock was less significant than the damage that would have resulted if the ship was left unsecured during the violent storm.
Additionally, the court would assess if the Defendant’s actions were reasonable and proportionate in response to the imminent danger posed by the storm. They would consider whether Defendant had any viable alternatives available to them to avoid or minimize the harm caused.
If the court finds that the defense of necessity is applicable, it may excuse or limit the Defendant’s liability for the damage caused to the plaintiff’s dock. The court may consider the principle that choosing the lesser of two evils was necessary under the circumstances. The defendant had a valid reason to temporarily use the plaintiff’s property to protect against more significant harm.
However, it is essential to note that the specific outcome of the case would depend on the facts presented, the applicable laws, and the court’s interpretation and application of the defense of necessity in that particular jurisdiction. Each case is evaluated on its merits and circumstances, and the court’s decision may vary based on those factors.
Surocco v. Geary
In the case of Surocco v. Geary, a major fire broke out in San Francisco, and Surocco, the plaintiff, attempted to remove goods from his home as the fire raged nearby. The mayor of San Francisco, Geary, ordered the demolition of the home to prevent the fire from spreading to other buildings. The plaintiff sued the mayor, arguing he deserved more time to get his stuff and was not compensated for destroying his property. The mayor argued necessity privilege in response to the plaintiff’s claim.
The mayor had ordered the demolition of the plaintiff’s home to prevent the spread of significant fire and protect other buildings in the area. The defense argued the mayor’s actions in destroying the home were taken in response to an imminent danger posed by the fire. Defendant argued that demolishing the plaintiff’s home was necessary to protect the broader community from further harm and potential loss of life in this and other emergencies.
In that case, the court ruled public necessity applied. Hence, the mayor was not liable to the Defendant claiming compensation for destroying the plaintiff’s property. Otherwise, a sole stubborn person could allow the fire to spread to nearby buildings and homes, resulting in greater public calamity to adjoining land. The court reasoned far more significant damage could have occurred. Verdict for the Defendant because had the house caught fire, it would have posed a “public nuisance” to nearby buildings and other public and private individuals.
Are Damages and Reparations Available?
In the context of the private necessity defense in trespass cases, the Defendant may be required to pay for any harm caused to the property due to their trespass. But this defense may provide some protection against liability for the act of trespassing itself. (It won’t absolve the Defendant from compensating the injured party for any damage caused.). Defendants’ actions are justified based on the need to protect their interests or to prevent harm to themselves or their property. However, this defense typically does not extend to nominal or punitive damages.
Nominal damages are usually awarded to recognize a legal injury even when no actual harm is proven.
Punitive damages are meant to punish the Defendant for particularly egregious conduct. In the case of the private necessity defense, the focus is primarily on the necessity of the Defendant’s actions rather than punishing or compensating the Defendant beyond what is necessary as long as the emergency persists.
This means that, under certain circumstances, the Defendant may not be ejected from the property as long as the emergency that necessitated their presence continues. However, the defense may no longer apply once the emergency is over. It’s worth contrasting with the defense of public necessity.
In cases of public necessity, the focus shifts from protecting individual interests to the greater public good or preventing significant public harm. Public necessity may provide a more robust defense where the action taken benefits the general public, even if it involves trespass or damage to property. However, unlike the private defense, public necessity may not require compensation for any harm caused, as the act serves a broader public interest.
The specific application and interpretation of these two defenses can vary depending on the jurisdiction and the particular circumstances of the case. Legal systems may have different standards and requirements for establishing the defense, and the scope of its protection and limitations may differ accordingly.
Summary: The necessity under tort law is a situation where the law allows you to breach your duty somewhat because something outside the control of society occurred. For example, you might be excused of trespass, or at least have your damages reduced in a trespass, if there was a fire and you needed to break into someone’s water barn to get a hose and attach water to put out the fire.
Even though it wasn’t your property, you needed to access someone else’s property to put it out because of a fire. You would still be liable for the damages under the private defense. But if it was a public necessity, where for the general good of the public, you were required to violate that privilege, such as trespass or breaching someone’s property rights. Under the law of public necessity, you would not be liable for damage you caused.
Ehline Law is an award-winning personal injury law firm in California headquartered in Los Angeles. Satisfied clients know our superior injury attorneys have over a decade of experience winning and maximizing damages compensation awards. Ehline Law firm’s lawyers serve people injured in accidents involving a passenger car, motorcycle, dog bite, bicycle, cruise ship, wrongful death, and physical injuries caused by a defendant’s negligence.
Although the welfare of the people should be the supreme law, in some situations, it can be excusable. The defense of necessity under tort law provides individuals with a legal defense when faced with imminent and significant danger and their actions harm others. This ancient common law defense acknowledges individuals’ moral dilemma when forced to choose between two harms and seeks to protect them from liability for their actions in such extraordinary circumstances. However, the defense of necessity is not absolute, and its application varies across jurisdictions.
Michael Ehline is an inactive U.S. Marine and world-famous legal historian. Michael helped draft the Cruise Ship Safety Act and has won some of U.S. history’s largest motorcycle accident settlements. Together with his legal team, Michael and the Ehline Law Firm collect damages on behalf of clients.
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