Necessity Defense and Intentional Torts

Imagine you broke into your neighbor’s garage to borrow his fire extinguisher after your car caught on 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 guilty of 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?

Intentional torts cover a wide range of wrongful actions that an individual can be liable for, including assault, battery, trespass, and false imprisonment. As you can guess, these are intentional acts that interfere with another person’s rights. They are distinguished from torts of negligence where a person simply fails to take adequate care in fulfilling their duties. If someone is suing you for an intentional tort, like trespassing, they have to prove that you intended to perform the action which then caused harm.

What Is an Affirmative Defense?

Even if you did do what the plaintiff is claiming you did, you may be able to assert an affirmative defense to lessen the trouble you’re in. With an affirmative defense, you would argue that the circumstances surrounding your actions excuse or justify the harm done. In this way, you mitigate or defeat your legal liability. Common affirmative defenses include self-defense, consent, defense of property, and the necessity defense.

The Necessity Defense: What You Have to Prove

The necessity defense applies to emergency situations and allows you to act in a wrongful way because doing so prevents a greater harm to you, your property, 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, it’s up to the court to decide if it applies to you and excuses you from some or all liability.

The Necessity Defense: Private vs. Public Necessity

There are two types of necessity you can turn to when arguing this defense: private necessity and public necessity. In the realm of 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 usually have the right to continue trespassing or using the person’s property for as long as the emergency is still ongoing.

For example, suppose you’re caught in a blizzard while hiking and 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, that there were no reasonable alternatives, and that the damage done to the barn was much less than the harm you may have endured otherwise.

Public necessity, on the other hand, 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, if the police are chasing a dangerous criminal and he decides to hide out in your back yard where they eventually apprehend him, 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 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 actual damage you caused, but you wouldn’t be liable for additional costs, like punitive or nominal damages. For example, in the barn scenario above, you would have to pay for the damage you caused breaking into the barn, but nothing beyond that.

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. Therefore, 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 who has experience asserting the necessity defense against intentional tort claims.

Next Steps

Contact a qualified personal injury attorney to make sure your rights are protected.

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