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What Is ‘Necessity’ under Tort Law, Its Elements, and Its Types?


Video Transcript

“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.”

Under tort law, there are several defenses that a defendant can use to escape or reduce liability, and one of them includes necessity. It is an affirmative defense under both civil law and criminal law. Let’s go over what necessity is with Ehline Law and our personal injury attorneys.

What Is ‘Necessity’ under Tort Law?

The welfare of the people should be the supreme law, but in some situations, it is excusable. Necessity, an affirmative defense, refers to a person breaking the law without criminal intent in an emergency to avoid greater harm.

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It allows a person to carry out a wrongful act because doing so would help prevent imminent harm to the person, their property, or the community. If a person believes their wrongful conduct was necessary to prevent harm, they may apply the necessity defense. Necessity is often used as a defense in cases pertaining to intentional torts, such as trespass to chattels and others.

The main questions that arise when someone uses a necessity defense are whether the harm that the person breaking the law thought was reasonable and was the situation of such overwhelming urgency as the defendant claims.

In case it was unreasonable, the necessity defense may not apply. The general rule is that if the defendant is carrying out a wrongful act, the harm from their actions must be lower than the harm they perceive would’ve occurred if they didn’t intervene.

Is There a Difference Between Necessity and Self-defense?

Necessity law may seem similar to self-defense and overlap in many ways, but there is a distinction between the two.

A person killing or harming someone to save their life may invoke self-defense. Though fact-specific, the courts may recognize the legitimacy of self-defense. Even though killing or hurting someone is unlawful, it can be justified if the other person has no choice. With necessity defense, there is no such justification.

The stark difference between the two is that when a defendant uses necessity, they are hurting someone who does not mean harm. In necessity cases, the individual has a choice, while in self-defense cases, the defendant may not have a choice when conducting a wrongful act.

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. 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.

Elements of Necessity Defense

To successfully invoke the necessity defense, the defendant must prove the following elements:

  • The harm done was less than the damage that would’ve otherwise occurred if it weren’t for the defendant’s actions
  • The defendant reasonably believed that there was imminent danger or threat
  • There were no other reasonable alternatives available to the defendant
  • The defendant did not initiate the threat of harm.

When a defendant uses necessity, the court must decide whether it applies to the situation. It is often challenging to invoke and prove the necessity.

Types of Necessity

There are two types of necessity, and these include the following.

Private Necessity

The private necessity arises when one party trespasses on another’s property or land to protect themselves or their property. 

It is a partial defense meaning that the defendant using this defense may be liable to pay for the damages caused to the property owner for trespassing on the plaintiff’s property. However, under private necessity, there are no nominal or punitive damages.

In the case of Vincent v. Lake Erie Transportation Co, the defendant unloaded cargo on the plaintiff’s dock when a storm broke out. The defendant quickly tied their ship to the dock until the weather settled. However, during the violent weather, the vessel damaged the dock, causing the plaintiff to sue the defendant.

The court ruled that although the defendant’s actions were prudent since far greater damage could’ve occurred to the ship, the defendant must still pay for the repair because of the damages caused to the plaintiff.

Public Necessity

Public necessity refers to a wrongful act conducted by a public authority or private citizens to prevent a public calamity that could cause harm to the public. 

A defendant might apply this defense if they trespassed on another’s land to protect the community. Since it is for the greater good, the public necessity serves an absolute defense whereby the defendant is not liable to pay for any damages if they successfully prove the elements of necessity.

In the case of Surocco v. Geary, a major fire broke out in San Francisco, and Surocco, the plaintiff, was trying to recover items 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 after he did not get the chance to recover his valuables.

The court stated that the house was a public nuisance as the entire city could end up in flames because of one stubborn person. It ruled that destroying the house on the plaintiff’s land was for the greater good, and letting the plaintiff recover valuables could’ve delayed the process resulting in fire spreading throughout the city.

R v Dudley and Stephens: Necessity Defense and Landmark Judgment

One of the difficult decisions pertaining to necessity defense came in R v Dudley and Stephens, where a ship crew was in the middle of the seas in a lifeboat for days with no signs of rescue. A 17-year-old boy, Parker, became weak due to starvation and heat, causing him to fall into a coma. The remaining crew members, hungry and worried for their life, feasted on the young boy.

After four days, rescue teams saved the remaining crew members. Once they reached home, the court charged them with murder. They argued that the boy was weak, and out of necessity, they ate him; otherwise, others would’ve died. 

The court initially convicted and sentenced them to death, but the jury sided with the defense, eventually bringing the sentence down to six months imprisonment.

Schedule a Free Consultation with Ehline Law

If you are facing a lawsuit whereby you are responsible for taking action out of necessity, contact us at (833) LETS-SUE for a free consultation on your case.

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