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Defenses to Intentional Torts - Module 3 of 5

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Defenses to Intentional Torts

When faced with a civil action involving a tort, a defendant may assert various defenses to escape liability. There are some defenses that are commonly used in response to intentional torts. In this module, we will focus on the defenses of self-defense, defense of property, consent, necessity and justification.


Self-defense applies primarily to the torts of assault and battery. While the specific elements of self-defense may vary by state, they are generally similar in the necessary requirements. Under California law, self defense is defined as 1) a reasonable belief regarding an imminent danger of being killed, injured or touched unlawfully, 2) a reasonable belief that use of force is necessary to prevent the harm from occurring, and 3) the use of no more force than what’s necessary to prevent the harm.[1] As exemplified by the language of the statute, “reasonableness” is an important aspect of self-defense. When making these determinations about the reasonableness of a defendant’s belief, courts use an “objective reasonable person” standard, which means that the court determines whether an objective and reasonable person would have acted similarly under comparable circumstances.[2]   

The presence of a real and imminent danger is another vital part of self-defense, meaning that the perceived harm is present and immediate. Fears of future harms or threats are typically insufficient to meet the required elements of self-defense.[3] The second prong of self-defense centers around the reasonable belief that force is necessary to prevent the harm. People v. La Voie was a Colorado Supreme Court case that involved a man whose car was pushed into an intersection by another vehicle. The occupants of the second car got out and approached the defendant’s car. The defendant got out of his car and shot one of the others who was advancing towards him. In finding that the defendant had the right to defend himself, the court stated that “when a person has reasonable grounds for believing, and does in fact actually believe, that danger of his being killed, or of receiving great bodily harm, is imminent, he may act on such appearances and defend himself, even to the extent of taking human life when necessary, although it may turn out that the appearances were false or although he may have been mistaken as to the extent of the real actual danger.”[4]

The third element of a self-defense requires proportionality in the level of force used. For example, when faced with the imminent harm of a fist fight, it is proportionate to defend yourself with your fists. Defending yourself by firing a gun is disproportionate.  The force used in self-defense also must be limited to a reasonable duration, meaning that the defending force cannot unreasonably continue after the threat has dissipated.

The Supreme Court addressed this issue in the case of Brown v. United States.[5] There, in opining that a defendant’s use of force was not excessive in duration, the court stated that “detached reflection cannot be demanded in the presence of an uplifted knife.”

Variations of rules appurtenant to self-defense include the duty-to-retreat, stand your ground and castle doctrine rules.

The duty-to-retreat states that, if there is an opportunity to retreat, the defendant must attempt to do so before resorting to self-defense. This is typically applied to the use of deadly force. In State v. Abbott, the Supreme Court of New Jersey determined that "deadly force is not justifiable ‘if the actor knows that he can avoid the necessity of using such force with complete safety by retreating.’"[6] Thus, a defendant must prove that he at least tried to retreat before using deadly force.

The counterweight to the duty to retreat is the stand-your-ground rule.  Stand-your-ground-jurisdictions do not require retreat when threatened with deadly force, even if retreat can be done safely.[7] In some states, stand-your-ground laws even allow people to pursue their attackers until the danger has subsided.[8] Though made famous in a criminal law context in the Trayvon Martin - George Zimmerman case,[9] it to civil cases as well.[10]

The castle doctrine evolved from the common law doctrine that a person’s “home is his castle,” and thus a person should be allowed to protect his home.[11] Thus, more serious force may be deemed justifiable in one’s home. Most states have incorporated the Castle Doctrine into law.[12] Variations of the castle doctrine eliminate the duty to retreat from one’s home before using deadly force and/or allow the use of deadly force against intruders even when no deadly force is directly threatened by the intruder.[13]   

Defense of others is generally available as a defense in situations comparable to those involving self-defense. The elements required for defense of others include: 1) The other person was under an immediate threat of harm, and 2) The defendant reasonably believed that force was necessary to protect the third person from the harm.[14]

Defense of Property

Defense of property is another defense that may be asserted against an intentional tort claim of assault or battery. To be successful, the defendant must show that the force was used against a wrongdoer (generally, a thief), and that the amount of force used was reasonable to protect the property. Deadly force may never be used to protect property unless there is also a danger to the defendant or others on the property.[15]

In Katco v. Briney, the defendant set up a spring shotgun in an uninhabited farmhouse that had been burglarized.[16] Katco attempted to break into the house and was shot and injured. At trial, the jury found for the plaintiff, awarding actual and punitive damages. Affirming the trial court’s decision, the court ruled that a property owner had no right to protect property with force that could cause death or serious injury to a trespasser. That case turned on the fact that the farmhouse was empty. The court noted that the reasoning would not necessarily apply to an occupied house.

There are some important considerations that must be undertaken by courts in defense of property cases. First, a reasonable belief of harm to property is insufficient, unlike in self-defense cases. The defendant must demonstrate that the plaintiff was actually about to harm or in the process of taking or damaging the property. Secondly, most courts refuse to accept a defense of property defense if the person doing the harm could have been stopped by non-violent measures.


Consent is another common defense to intentional torts. It asserts that the person affected by the tort gave permission to the tortfeasor to engage in the otherwise wrongful conduct.[17]

There are three types of consent: express, implied, and assumed. Express consent occurs when the consent is clearly communicated by the victim verbally or in writing.[18] Implied consent occurs via actions or silence. For example, going into a doctor’s office and exposing your arm when the doctor is giving injections implies consent to be stuck with a needle.[19] Similarly, participating in a boxing match implies consent to be punched while participation in a football game implies consent to be tackled or blocked. It does not, however, imply consent to violence clearly outside the scope of the game even if it occurs during the game.[20]

Lastly, assumed consent may arise when the injured party has given consent in the past, which gives the accused tortfeasor a reasonable belief that the party is consenting again.[21]  

Another type of consent defense deals with the tort of false imprisonment, which involves the restraining or confinement of a person.  Voluntary consent to confinement can effectively nullify a claim of false imprisonment. Hanna v. Marshall Field & Co., an Illinois case, involved an employee who claimed that her employer falsely imprisoned her in an office for five hours.[22] Affirming the trial court’s summary judgement of the claim, the appeals court pointed to the fact that the employee had voluntarily walked into the office and was never forcibly restrained or forced to stay. It also pointed out that the door was never locked and the employee was never threatened with harm if she left  

It’s important to note that consent can be revoked, even if given repeatedly. The Virginia case, Pugsley v. Privette, involved a patient-filed suit against a physician for battery based on a claim that she never consented to a surgical procedure.[23] In upholding the trial jury’s judgement in favor of the plaintiff, the court determined that “the critical issue of fact before the jury was whether or not this consent was revoked by the plaintiff on the morning the operation was scheduled to be performed.”  


The defense of necessity can be used against actions for trespass to real or personal property and conversion. It may apply when the defendant is asserting that taking or using another’s property is necessary to prevent greater harm to the defendant, the defendant’s property or others.[24] These cases are generally initiated when the plaintiff seeks compensation for damages to property. To succeed, the defendant must show that the damage to the property was less than the value of the damage that would have been had the plaintiff’s property not been used.

There are two types of necessity defenses: public and private. Public necessity applies when someone damages another’s property to benefit the community as a whole. In Surocco v. Geary, the mayor of San Francisco ordered the fire department to demolish the plaintiff’s house to contain wildfires in the city.[25] The plaintiff’s civil case against the mayor was unsuccessful, based on the public necessity defense. The court opined that the potential damage to the city would have been substantially more severe without the order to demolish the plaintiff’s home.   

Private necessity applies when someone takes or damages another’s property to prevent harm to his own property. While the defense precludes a finding that the conduct was wrongful and certainly precludes punitive damages, the defendant may be liable for damage to the plaintiff’s property. In the 1910 Minnesota case of Vincent v. Lake Erie Transportation Company, a steamship company tied its boat to the plaintiff’s dock in an attempt to keep it safe during a storm.[26] Though the boat severely damaged the dock, the court found that the boat would have likely sunk if it had not been attached. However, even with a ruling that private necessity applied, the court ordered the steamboat company to compensate plaintiff for the damage to the dock.


Justification, sometimes referred to as privilege, is a defense used under circumstances where a defendant's tortious act stemmed from an interest of social importance, meaning that is an interest that society wants to uphold and protect against punishment. The Texas Supreme Court observed that "the privilege of legal justification or excuse in the interference of contractual relations is an affirmative defense upon which the defendant has the burden of proof." [27]

A California Court of Appeals case, Gonzalez vs. Santa Clara County Department of Social Services, discussed justification in the context of reasonable discipline. The defendant was reported for child abuse after spanking her child.[28] Finding in favor of the mother, the court stated that “It has long been held in prosecutions for these and similar crimes against children that, ‘a parent has a right to reasonably discipline his or her child and may administer reasonable punishment without being criminally liable.’ A similar privilege is recognized in tort law:  From 1931 to 1971, parents in California possessed a blanket immunity from liability to their children. Before abolishing that rule entirely, the Supreme Court limited it to negligence cases. In doing so the court held that parents' ‘wide discretion in the performance of parental functions’ did not extend to the willful infliction of injuries ‘beyond the limits of reasonable parental discipline.’ Thus, parents are privileged to ‘administer reasonable punishment with impunity...’”[29]

This same justification may be used to defend a civil allegation of false imprisonment. Several states have statutes that shield parties from false imprisonment liability when the person restrained is a child and a parent, guardian or other person responsible for the general supervision of the child’s welfare has consented to the restraint; or the actor is a relative of the child; and the actor’s sole purpose is to assume control of the child. In Sindle vs. New York City Transit Authority, a school bus driver took disruptive student passengers to the police department instead of to their normal stops after their rambunctious behavior had created an unsafe environment on the bus.[30] The plaintiff sued for false imprisonment and the bus driver was found liable at trial. The appeals court reversed based on the justification defense. The court stated that “generally, restraint or detention, reasonable under the circumstances and in time and manner, imposed for the purpose of preventing another from inflicting personal injuries or interfering with or damaging real or personal property in one's lawful possession or custody is not unlawful… Also, a parent, guardian or teacher entrusted with the care or supervision of a child may use physical force reasonably necessary to maintain discipline or promote the welfare of the child.”

In our next module, we’ll turn to negligence and go through and discuss the elements of negligence torts and some of the doctrines and rules that are applied to negligence causes of action.


[1] Cal. Penal Code §§ 197-199 (2017), Judicial Council of California Criminal Jury Instructions, CALCRIM § 3470,Right to Self-Defense or Defense of Another (2017), https://www.justia.com/documents/criminal-law-calcrim.pdf.

[2] RESTATEMENT (SECOND) OF TORTS §  65 (Am. Law Inst. 1965), People v. Clark, 130 Cal. App. 3d 371 (Cal. Ct. App. 1982).

[3] Shorter v.People, 2 N.Y. 193 (N.Y. 1949).

[4] People v. La Voie, 395 P.2d 1001 (Colo. 1964).

[5] Brown v. United States, 256 U.S. 335 (1921).

[6] State v. Abbott, 174 A.2d 881(N.J. 1961).

[8] See, Judicial Council of California Criminal Jury Instructions, CALCRIM § 3470 – Right to Self-Defense or Defense of Another (2017), https://www.justia.com/documents/criminal-law-calcrim.pdf.

[9]Lizette Alvarez and Cara Buckley, Zimmerman is Aquitted in Trayvon Martin Killing, N.Y. Times, Jul. 13, 2013, https://www.nytimes.com/2013/07/14/us/george-zimmerman-verdict-trayvon-martin.html?pagewanted=all. Glenn Kessler, Was the ‘Stand Your Ground’ law the cause of Trayvon Martin’s death?, Wash. Post, Oct. 29, 2014, https://www.washingtonpost.com/news/fact-checker/wp/2014/10/29/was-the-stand-your-ground-law-the-cause-of-trayvon-martins-death/.

[11] People v. Tomlins, 107 N.E. 496 (N.Y. 1914).

[12] Mark Randall and Hendrik DeBoer, “The Castle Doctrine and Stand-Your-Ground Law,” Connecticut General Assembly, (Apr. 12, 2012) (last visited Mar. 11, 2019), https://www.cga.ct.gov/2012/rpt/2012-R-0172.htm.  

[13] Fla. Stat., §§ 776.012, 776.013 (2014).

[14] Restatement (Second) of Torts §§ 65, 66, and 76 (Am. Law Inst. 1965).

[15] Restatement (Second) of Torts §§ 77, 79 (Am. Law Inst. 1965).

[17] Restatement (Second) of Torts §§ 892, 892A (Am. Law Inst. 1965).

[19] O'Brien v. Cunard S.S. Co, 28 N.E. 266 (Mass. 1891).

[20] Hackbart v. Cincinnati Bengals, Inc.,601 F.2d 516 (10th Cir. 1979).

[21] Winder v. Gaziano,No. 09 CV 5041 (N.D. Ill. Jun. 26, 2012).

[22] Hanna v. Marshall Field & Co., 665 N.E.2d 343 (Ill. App. Ct. 1996).

[23] Pugsley v. Privette,  263 S.E.2d 69 (Va.1980).

[24]. Breedlove v. Hardy, 110 S.E. 358 (Va. 1922).

[25] Surocco v. Geary, 3 Cal. 69 (Cal. 1853).

[26] Vincent v. Lake Erie Transportation Co., 124 N.W. 221 (Minn. 1910).

[27] Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989).

[28] Gonzalez v. Santa Clara Dept. of Social Services, 223 Cal. App. 4th 72 (Cal. Ct. App. 2014).

[30] Sindle v. New York City Transit Authority, 307 N.E.2d 245 (N.Y. 1973).