Necessity Defense and Intentional Torts

Imagine you broke into your neighbor's garage to borrow his fire extinguisher after your car caught fire. Thankfully, you prevented the fire from spreading or causing an explosion. But now your neighbor is suing you for trespassing and breaking his garage door window. Are you liable for trespass, and do you have to pay for the window? Luckily, you can assert a necessity defense and possibly avoid some liability. Read on to learn about the necessity defense and intentional torts.

What Is an Intentional Tort?

Tort law is about wrongful acts that happen in personal injury cases. Tort liability has evolved through common law, developed through court decisions rather than civil code. A tortious civil claim (or cause of action) may involve an element of intent if a wrongdoer (tortfeasor) acted purposefully.

Intentional torts cover a wide range of wrongful actions that a person can be liable for. This includes assault, battery, trespass, defamation, and false imprisonment. As you can guess, these intentional acts interfere with another person's rights. They differ from torts of negligence, where a person acts carelessly. Under negligence, a person fails to take reasonable care in fulfilling their duties.

If someone is suing you for an intentional tort, they have to prove that you intended to perform the action that then caused harm. For example, an aggressor's strike results in bodily harm. If the aggressor acted with intent to cause bodily injury, they may be liable for an intentional tort.

What Is an Affirmative Defense?

Even if you did what the plaintiff claims you did, you may be able to assert an affirmative defense. This would help lessen the trouble you're in. With an affirmative defense, you would argue that your actions' circumstances excuse or justify the harm done. This way, you mitigate (reduce) or defeat your legal liability. Common affirmative defenses include:

• Self-defense or defense of others
• Assumption of risk
• Consent
• Defense of property
• Necessity

When asserting these common defenses, a defendant has the burden of proof to show that they apply.

The Necessity Defense: What You Have to Prove

The necessity defense applies to emergencies. It allows you to act wrongfully because doing so prevents greater harm to you, your property (chattel), or the community. To prove the necessity defense, you usually have to show some version of the following:

1. You reasonably believed your actions were necessary to prevent imminent harm.
2. There was no practical alternative available for avoiding the harm.
3. You did not cause the threat of harm in the first place.
4. The damage caused was less than the harm that would have occurred otherwise.

If you assert a necessity defense, a court will decide if you acted as a reasonable person. That means it will also determine if you used reasonable force if property damage or bodily harm occurred. For example, when defending your property, it's far less likely that using deadly force excuses you from some or all liability. Criminal law issues aside, a defendant's actions that result in homicide may only be reasonable in life-or-death circumstances.

The Necessity Defense: Private vs. Public Necessity

There are two types of necessity you can turn to when arguing this defense:

1. Private necessity
2. Public necessity

In intentional torts, private necessity usually involves trespassing or damaging another person's property to protect yourself, your property, or a small number of people. Furthermore, you typically have the right to continue trespassing or using the person's property for as long as the emergency is ongoing.

For example, suppose you're caught in a blizzard while hiking. You try knocking on a cabin door for help, but no one answers. So, you break into the barn next to the house to stay safe and ride out the storm. You would then argue that:

• Breaking into the barn was necessary to save your life
• There were no reasonable alternatives
• The damage done to the barn was much less than the harm you may have endured otherwise

On the other hand, public necessity is when you've trespassed or damaged someone's property to prevent harm to the greater community. This often applies to public employees like firefighters and police officers. For example, the police are chasing a dangerous criminal who decides to hide in your backyard. The police eventually catch the criminal there. They could assert the public necessity defense if you tried suing them for trampling your roses and breaking a garden gnome.

Do You Still Have to Pay for the Damage Done?

If you successfully argue your necessity defense, you may not have to pay for some or any of the damage you caused. This is usually true for instances of public necessity. For private necessity cases, you are generally still on the hook for the damage you caused. But you wouldn't be liable for additional costs, like punitive damages or nominal damages.

For example, only the plaintiff's property was damaged in the barn scenario above. You would have to pay for the damage you caused breaking into the barn, but nothing beyond that. If the property owner or some third person endured pain and suffering due to your break-in, you could still be liable for those damages. Fair public policy may require that you would pay for their medical expenses.

Get Help Arguing Your Necessity Defense

The necessity defense can be a powerful tool for limiting or defeating liability if you're being sued for an intentional tort like trespassing or conversion. It's important to have someone arguing for you who understands the necessity defense laws in your state. Protect yourself against unjustified liability by contacting a local defense attorney with experience asserting the necessary defense against intentional tort claims.

A personal injury attorney has law school and real-world experience in tort cases. When they're defending you, they can help you justify your actions against an injured party.