Intent to contact

Waters v. Blackshear 591 N.E.2d 184 (Mass. 1992) Facts: June 6, 1987, minor defendant intentionally placed firecracker in sneaker of unsuspecting minor plaintiff, and lit firecracker. 7 yo P sustained burn injuries. D was older than P. D had been lighting firecrackers for 10 minutes, tossing them on ground watching them ignite, spin, and jump. Proc history: appeal from trial court? Issues: Did D commit tort on P by placing firecracker in unsuspecting Ps shoe even though he did not intent the extent of injury that occurred or the specific injuries that occurred? Did Ds conduct meet requirements for battery? Rule of Law: Battery requires act intending to cause a harmful or offensive contact with another person or third party, or an imminent apprehension of such a contact and a harmful contact results. Two prong: Intention/Act, and harmful contact results directly or indirectly. Holding: The intentional placing of the firecracker and the intentional lighting of the firecracker brought about a harmful contact that D intended. Courts order: Find for P, D intended and caused unpermitted act. D is liable. Reasoning: The extent of the resulting harm need not be intended, nor even foreseen (Court relied on Horton v. Reaves) Also restatement of torts, An actor is subject to liability to another for batter if: a. he acts intending to cause a harmful or offensive contact or imminent apprehension of such a contact and, b. a harmful contact directly or indirectly results. New Information: Legal theory was Battery Factual theory was D intended to offend and did offend. Restatement provisions are not binding authority in a state unless they have been adopted by that states courts. Restatements usually have had great persuasive power because of prestige of the members of American Law Institute (ALI) and the quality of arguments they produced.

Polmatier v. Russ 537 A.2d 468 (Conn. 1988) Facts: P is executrix of estate of deceased husband seeks to recover damages for wrongful death (tortuous action causing death). Nov 20, 1976, D visits father in law at FIL home (ps husband) with Ds two month old daughter. Eleven year old brother in law noticed disturbance. D is astride FIL on couch beating him on head with beer bottle. FIL tells D, your killing me! Eleven year old ran for help. D goes into bedrooms to get 30-30 caliber ammo and Winchester rifle. Then went to living room and shoots FIL twice, causing death. Five hours later, D found sitting on stump, half mile from Polmatier home. D is naked and holding two month old daughter wrapped in his bloody clothes. D was crying, and he still had Winchester, later determined to be murder weapon. D charged with murder, found not guilty by reason of insanity. Psychiatrist testified that at time of homicide, D suffering from a sever case of paranoid schizophrenia with delusions of persecution, grandeur, auditory hallucinations. Found legally insane, could not form a rational choice, but could make a crazy choice. Not in a fugue (temporary flight from reality) state. Proc history: Trial court found for P, appellate court found no error. Issues: Did the act of killing FIL while legally insane constitute an intended act thaqt produced the injury. Did his insane condition render his act more like a purely reflexive or convulsive movement which are not acts in the sense of the restatement of torts. Does the precise injury done have to be the one intended in order to satisfy the intention prong of the test for Intentional Tort. Rule of Law: 1. A muscular act is always an act unless it is a purely reflexive reaction in which the mind and will have no share. A rational choice is not required for intent since, 2. An insane person may have an intent to invade the interests of another, even though his reasons and motives may be irrational. All consequences which the actor desires to bring about are intended. Intent is not limited to consequences that are desired. If consequences are certain or substantially certain, and actor goes ahead anyway, law treats as if actor intended. Example: A, who is insane, believes that he is napoleon, and that B, his nurse, who confines him in his room, is an agent of the Duke of Wellington, who wants to prevent his arrival on the field of battle. To escape, he breaks off the leg of a chair, attacks B with it and fractures her skullA is liable to B for battery. Holding: Ds actions constituted an act, similar to the example in the restatement, and was within the meaning of the restatement. D intended to beat and shoot FIL

Courts order: Find for P, D intended and caused unpermitted act. D is liable. Reasoning: Explanation given be D is most like the example so A liable to B for act. D was not in Fugue state, and gave police definite reasons for killing FIL. It is not necessary that his reasons and motives be rational for him to have intent to invade interests of another. New Information: 1. two step process to determine intentional tort. a. intended the act that produced the injury b. intended the resulting injury. (only required in intentional torts) - not precise injury, only intending conduct that is harmful or offensive. 2. Distinction between Tort and Crime. a. beyond reasonable doubt v. preponderance of evidence. (different thresholds) b. withholding liberty v. paying money or restricting future conduct. c. Liable v. guilty 3. Desire or Substantial certainty. a. desired to cause a contact that was harmful OR b. was substantially certain that such a contact would occur Note 5. accomplished high school athlete, knew window was down, ten to fifteen feet from car. Took no precautions. (substantially certain) Manager threw burger towards trash can because he was disgusted with the way hamburger was prepared. (not because he wanted it in the trash can) Intent requirement met.

Intending contact that is HARMFUL

Nelson v. Carroll 735 A.2d 1096 (Md. 1999) Facts: D shot P in the stomach during a fight over a debt owed to D. D was a little tipsy, entered club and demanded immediate payment of $3800 balance of $8000 debt. P offered to make a payment. D did not accept and pulled handgun from his jacket. D hit P with gun and when P did not respond, D went to hit P again and in the process discharged the weapon, striking P with a bullet. Procedural History: Previous occasion when the case was before the court? Issue: Is P entitled to motion for judgement on the issue of liability for battery. Did D commit battery even though he may not have intended to shoot P. Rule of Law: Battery occurs when one intends a harmful or offensive contact with another, without that persons consent. A battery may occur either through direct or indirect contact. While some form of intent is required for battery, the intent required is not a specific intent to cause the type of harm that occurred. Holding: D intended to cause harmful contact to P. D acted and did cause harmful contact. D had required intent to commit battery. Courts order: grant motion for judgment as to liability, let jury decide damages resulting from the discharge of gun. Reasoning: the intent element of battery requires not a specific desire to bring about a certain result but rather a general intent to invade a legally protected interest (physical well being) through a harmful or offensive contact or an apprehension of such a contact. Notes: Injury v. Harm Injury is defined as invasion of legally protected interest of another Harm is loss or detriment which occurs as result of change in person, or impairs physical, emotional, or aesthetic well being, pecuniary advantage, intangible rights, reputation or other legally recognized interests. Direct v. Indirect contact If all other requisites of battery are met, contact with Ps clothing, or with a cane, a paper, or any other object held in Ps hand is sufficient for contact Problem 4 (p26)

Indirect contact. Battery is appropriate. Actions show that D intended some kind of offensive contact, the fact that it turned out worse than anticipated is irrelevant. Just like Nelson.

Intending contact that is offensive

LEICHTMAN v. WLW JACOR COMMUNICATIONS, INC 634 N.E.2d 697 (Ohio Ct. App. 1994) Facts: P claims to be nationally known advocate for antismoking. During radio appearance for Great American Smoke Out (invited guest to discuss harmful effects of smoking and secondary smoke), employee of D (host) lit a cigar and blew smoke in Ps face Proc History: Trial court found for D, P appeals to Ohio Ct. App. Issues: Is blowing smoke actually considered contact, and is it offensive in terms of requirements for Battery. Rule of law: Contact which is offensive to a reasonable sense of personal dignity is offensive contact. (Supreme Court) Offensive means disagreeable or nauseating or painful because of outrage to taste and sensibilities or affronting insultingness. Tobacco smoke, as particulate matter has the physical properties of making contact. Holding: Tobacco smoke has the physical properties of making contact and no matter how trivial the incident, battery was committed and is actionable to some extent. Courts order: Reverse, find for P. Reasoning: In civilized society men must be able to assume that others will do them no intentional injury and that others will commit no intentional aggressions upon them. D intended offensive contact, made contact, and contact was offensive. New Info: Damages may be only one dollar, but even a trivial incident can (not always) be actionable if the contact is offensive to a reasonable sense of personal dignity.

ANDREWS v. PETERS 330 S.E.2d 638 (N.C. Ct. App. 1985) Facts: P is injured at work by co-employee D. D walked up behind P and tapped the back of her knee with the front of his causing her knee to buckle. P lost her balance, fell to the floor, dislocated her right kneecap. P is seeking damages for medical expenses, loss of income, pain and suffering, permanent disability, and punitive damages. Proc History: submitted to jury on theory of battery. Verdict in favor of P ($7500), D appeals. D alleges no evidence that he intended to injure P, so trial judge erred in giving to jury under theory of battery. Issues: Did D commit battery on P. Is intent to injure a requirement for battery. Rule of Law: a bodily contact is offensive if it offends a reasonable sense of personal dignity. Holding: Trial court did not err, D committed batter on P Reasoning: D intended to cause a harmful or offensive act (tapping of Ps knee) so D is liable for consequences whether actual consequences were intended or foreseen. Notes: Offensive contact; if it offends a reasonable sense of dignity Problem 2: A. not offensive, ordinary person would appreciate the act of trying to help a fellow patron. If, however, the diner indicates that the contact is unwanted, actor must cease immediately or be liable for any consequences. B. Offensive, the length of the hug would be more than a casual or customer congratulations. A reasonable person could find this offensive. If this was a customary occurance between the two, the result would probably be different. Gender could make a difference in offensive contact issues, but probably not with only the facts indicated in the problems. Subjective and objective tests. What was going on in Ds mind, moreover, what did D desire or know. Intent test is subjective. Objective test focuses on societal standards and reasonable sense of dignity. Also act can be offensive even if D didnt think it was or intend it to be offensive.

WHITE v. MUNIZ 999 P.2d 814 (Colo. 2000) Facts: P placed her 83yo abuela in assisted living facility. Within a few days of admit abuela began to act agitated and aggressively towards others. D was a shift supervisor who was asked to change the elderly ladys depend. As D reached for diaper, elderly lady struck D and harmed her jaw. Proc History: at trial, jury found for white and everly (P). court of appeals reversed and remanded case for new trial. Now on appeal from P. Issues: does an intentional tort require some proof that the tortfeasor not only intended to contact another person, but also intended the contact be harmful or offensive to other person. Did trial court err in delivery of jury instruction that included the caviat that Mrs. Everly must have appreciated the offensiveness of her conduct. Rules of Law: actor is liable for battery if a. he acts indending to cause a harmful or offensive contact or imminent apprehension of such a contact, AND b. an an offensive or harmful contact with the person directly or indirectly results without intention, would be negligent or reckless because it involves an unreasonable risk that threatens bodily harm. Holding: Trial court did deliver appropriate jury instruction Reasoning: Colorado requires dual intent requirement. (intended the act AND intended it to be harmful or offensive) because of mental deficiency (Alzheimers/dementia), Jury found that Everly could not form the requisite intent. Notes: 1. dual intent is consistent with two tort rules described. Pistol to the head and smoke in the face both intended their actions and that they be offensive or harmful. 2. Dual intent and unintended consequences. Friendly unsolicited hug cases should make actors liable. The hug was unsolicited and invaded a legally protected right of anothers personal space. Differentiate from White v. Muniz because Muniz initiated the contact rather than the other way around. 3. Dual intent does matter. Also, however, distinguished from White because of initiation of contact.

Damages for Intentional Torts

TAYLOR v. BARWICK 1997 WL 527970 (Del. Super. Ct. 1997) Facts: P is an inmate at Delaware correctional center. Filed Pro Se action against guard for a battery committed by poking him on the backside with a tree branch. Guard admits to causing contact but contends that it was an accident. Guard apologizes and continued with duties. Proc History: both sides moved for summary judgement. Issues: de minimus non curat lex (the law cares not about trifles) Should the court provide an outlet clothed with some sense of civility for minor emotional controversies. What damages are incurred by plaintiff. Rule of law: De minimus doctrine. Allowance of nominal damages is generally based on the ground that every injury from its very nature legally imports damage, or that the injury complained of would in the future be evidence in favor of the wrongdoer. Especially if continued over a sufficient length of time. Otherwise judgement should be rendered for defendant. Holding: plaintiffs motion denied, defendant motion granted to the extent that it seeks to limit plaintiffs potential recover to nominal damages. Reasoning: The facts surrounding the batter are still in dispute, however, P has shown no evidence of harm or injury. Although P may have made a mountain out of a molehill, guards should not be able to use minor physical contact as a form of humiliation. Other: This case seems to be more about each side seeking to have the court define the rights of each party more than be compensated for injury. In some ways this case is about deterrence for both sides. Traditional awards for nominal damages in many states are six cents or one dollar.

Assault
Protects ones interest in being free from the apprehension of imminent harmful or offrensive contact. A single act may be both assaualt & battery. Assault involves; 1. intent requirement. 2. analysis of apprehension, how imminent the contact appears, and the relationship between battery and assault.

Intending apprehension of imminent contact

CULLISON v. MEDLEY 570 N.E.2d 27 (Ind. 1991) Facts: P meets 16 yo girl and invites back to his home. A few hours later, Medley family shows up at his residence. Father of girl has handgun in holster. Mother held her hand in her pocket giving impression that she also had gun. Father grabbed at and shook gun and threatened to jump astraddle of P if he did not leave girl alone. P testified that he thought D was going to shoot him. On several subsequent occasions D glared in menacing manner in local restaurant while also wearing sidearm. P also subsequently found out that D had previously shot a man, which added to his fear and apprehension of being harmed by D. As a result of the incidents, P sought psychological counseling and therapy which included prescription medication. This medication caused P to not be able to operate power tools or drive, which injured P in his ability to run his sole prop business. Proc History: Trial court gave summary judgement for D because D never removed his gun from holster. Threat constituted conditional language which did not express any present intent to harm, so trial court said was not assault. Court of Appeals decided that even if it were able to find an assault, summary judgement was appropriate because P showed only emotional distress and that alleged injuries were not a foreseeable result of Ds conduct. Ind Sup Ct remanded to a jury to decide whether Ps apprehension of being shot or injured was one which would normally be aroused in the mind of a reasonable person. Issues: Did D show intent or was D substantially certain that an apprehension of imminent harmful or offensive contact. Did Medleys intend to frighten Cullison by surrounding him in his trailer. Holding: Assault constitutes a touching of the mind, it not of the body. Because it is a touching of the mind, as opposed to the body, the damages which are recoverable for an assault are damages for mental trauma and distress. Any act of such a nature as to excite an apprehension of a battery may constitute an assault. It is an assault to shake a fist

under anothers nose, to aim or strike at him with a weapon, or to hold it in a threatening position, to rise or advance to strike another, to surround him with a display of force. Reasoning: The facts testified by P, if believed, entitle him to recover for assault. Jury could reasonably conclude that D intended to frighten P by surrounding him in his trailer and threatening bodily harm while at least one of them was armed even though it was never removed from holster. P testified that D kept grabbing at the pistol as if he were going to take it out. A jury should decide whether Ps apprehension would be normally aroused by a reasonable person.

BROWER v. ACKERLEY 943 P.2d 1141 (Wash Ct. App. 1997) Facts: P is active in civic affairs. D are two sons of owner of Communications company that is involved with billboard advertising. P is an activist against Billboards, as he considers them a visual blight. P investigated and found that Comm company had erected illegal billboards and were not paying appropriate taxes for them. P brought to attention of city and then filed suit when no action was taken by city. (sought enforcement of city billboard ordinances). Within two days, a phone harrasement campaign began on Ps home phone. Lasted 20 months. Calls were aggressive and mean spirited. City agreed to pursue billboard complaints, P dropped suit. City made announcement about Companys illegal billboards. Next day, P received angry call, identified caller as same as before. Months of more calls ensued. City counsel passed moratorium on billboard activity, that night angry caller announced that they would find where P lived and harm him. 2 hours later, called to say they would cut him in his sleep. P complained to police and had trapped last phone call. Caller identified as Ds home number. Proc History: Trial court dismissed Browers assault claim. Ct. App. Affirms. Issues: Did caller supply sufficient threat of imminent harm to constitute assault. Holding: Words alone are not enough to make an actor liable for assault. Words must be put with other acts or circumstances that put the other in reasonable apprehension of an imminent harmful or offensive contact with his person. If A threatens to shoot B and leaves the room with the express purpose of getting his gun, A is not liable to B. Reasoning: The physical harm threatened in the telephone calls was not imminent. It is the immediate physical threat which is important rather than the manner in which it is conveyed. The apprehension created must be one of imminent contact, rather than any contact in the future.

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Notes: Restaurant example. Probably not enough by itself. In cullison, it was the show of force and the actions towards the gun that satisfied imminent apprehension. Surrounding circumstances are appropriate in deciding apprehension. 2. 3. Objective test for apprehension. Would Ds conduct normally arouse apprehension in the mind of a reasonable person. Objective because it refers to people in general and not the specific plaintiff. 4. Should there be a subjective test. What about special sensitivity? Depends on whether or not D knew about sensitivity before hand. 5. Conditional language and imminent contact. Usually, conditional language will signal future threat and not conditional. In Cullison, state supreme court found imminent and future threat so conditional language was not the factor. The interest protected by assault is the interest in the freedom from imminent contact. 6. Intent for assault and battery problem: Not assault, no immediate apprehension. Battery, Intent Harmful contact harm resulted. 7. Infliction of emotional distress. Brower might have relied on this tort theory rather than assault.

Transfer of Intent among people and between Torts

HALL v. McBRYDE 919 P.2d 910 (Colo. Ct. App. 1996) Facts: D is visiting family home when he discovered loaded gun hidden in parents room. Youths began to fire on house and D returned fire. During exchange, third party neighbor P is hit in abdomen and seriously harmed. Proc History: Trial court finds for D on claim of battery. App. Ct. remands for additional findings as to whether D fired bullet that struck P. If so, D committed battery on P. Issues: If it was D who struck P, did intent transfer through youths in car even though D did not intend to hit the youths but merely their car. Holding: Actor is subject to liability to another for battery if he or she acts intending to cause a harmful or offensive contact with the person of the other or a 3rd person, or an imminent apprehension of such a contact, and a harmful or offensive contact with the person of the other directly or indirectly results. Reason: by aiming and firing a loaded weapon at the car for express purpose of protecting his house, D intend to put the youths in apprehension of a harmful or offensive

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bodily contact. Intent to place other persons in apprehension was sufficient to satisfy the intent requirement. Notes: ?????? Intention follows the bullet. Problem: does Tims liability to Denise depend on the inferences of the rock slipping in his hand (or released to early) or that he changed his direction of throw without warning. Changing direction w/o warning may make him negligent instead of intending to contact or cause apprehension so transfer would not occur.

Defenses to Assault and Battery

Consent Defense of self, others, or property Law allows people to give up their rights when they know what they are doing and do it willingly. Consent must be knowing, informed, and voluntary. McQuiggan v. Boy Scouts of America 536 A.2d 137 (Md. Ct. Sp. App. 1987 Facts: Minor P was attending a scout meeting at a church. When he first arrived, he noticed other scouts engaged in shooting paper clips from rubber bands at each other. At first, no one shot clips at P. 10 minutes after arriving, P decided to join the other scouts after being invited by one of the scouts. He joined freely without peer pressure. P knew that the object of the game was to shoot paper clips, and he knew that paper clips would be shot at him and that there was a chance that he would be hit by paper clips. P located an elastic hair band with which he intended to chase the other boys. He admitted that his actions were intended to lead the other boys to believe that he had a paper clip, he was actively participating in the game. At some point, P stopped playing and walked toward a table. He did not communicate to the other boys that he had stopped playing. Approximately 5 seconds later and five feet into the meeting room P felt something in his right eye. He brushed his eye and saw the paper clip fall to the floor. He sustained an injury to the eye as a result. Adult supervision was present and included assistant scoutmasters. Hist Proc: Trial judge found P could not prevail. Appellate court affirms. Issues: did voluntary participation in paper clip shooting game amount to consent and therefore bar P from recovery for eye injury he sustained at scout meeting.

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Holding: A battery consists of the unpermitted application of trauma by one person upon the body of another person. When a plaintiff manifests a willingness that the defendant engage in conduct and the defendant acts in response to such a manifestation, his consent negates the wrongful element of the defendants act, and prevents the existence of a tort. Ps implied consent negates the claim for assault and battery. Notice is required that all such conduct will no longer be tolerated for the D to be no longer free to assume consent. Reasoning: Ps willful joining the game, without any notice of his withdrawal from participation bars recovery from either actor (Billy or Kevin) Notes: Consent can be either express or implied. Objective test applied. Customs of community are considered. Paperclips to gun analogy. Consent to contact does not imply consent to all possible harmful contact. Equipoise. Consent and nonconsent are equally likely. If p must prove no consentand equipoisep loses If D must prove consentand equipoiseD loses.

HOGAN v. TAVZEL 660 S. 2d 350 (Fla. Ct. App. 1995) Facts: Husband and wife separate and then attempted reconciliation. During reconciliation, P had consentual sex with D. D knew that he had STD but did not tell P and infected her. P brought suit. Hist Proc: case of first impression in FL. Dismissed in trial court by motion of D. Appealed to Fla. Ct. App.

Issues: Did D commit battery by knowingly infecting P w/ STD even though P consented to sex. Holdings: a certain amount of trust and confidence exists in any intimate relationship, to the extent that one sexual partner represents to the other that he/she is free from venarial

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or other contagious disease. Test: A consents to sexual intercourse with B, who knows that A is ignorant of the fact that B has Venereal Disease. B is subject to liability to A for battery. In this case, consent to intercourse did not include transmission of disease and is not a defense to battery charge.

Reasoning: consenting person was ignorant about the nature and quality of the invasion intended. Even is consenting person was mistaken as to the nature and quality, consent would be ineffective. Notes: Fradulently obtained or mistaken consent. 1. In this case, defendant concealed important fact that would have influenced Ps decision to consent. 2. Another way to look at it isthe contact exceeded the bounds of the permitted contact that was consented to. 3. Scope of consent problem: Dikkas words and their context would support a consent defense for Mike. even if you tried, you couldnt throw me in the lake. A challenge was issued and the rules of the game were implied. No notice of ending consent was implied. RICHARD v. MANGION 535 So. 2d 414 (La. Ct. App. 1988) Facts: Jeremy and shawn, two early teens, fought on afternoon of May 8, 1985 at an outdoor hangout near their homes. During the fight Jeremy struck Shawn in his right eye causing later hemorrhaging. Shawn underwent 2 operations and his family incurred $15000 in med expenses. The boys had several other more minor altercations that escalated to the fight that caused the injury. Jeremy had traded verbal insults with shawn on one occasion and had kicked him on another occasion. They had talked about fighting prior to the fight that cause the injury but Shawn had not shown up to that event, and peer pressure was a factor in escalating the trouble between the two. On the day of the fight, Shawn was at home and decided to go to the hang out and get it over. They fought and shawn was injured. Hist Proc: Trial court found for D. P appeals. Issues: Did P consent to contact by voluntarily participating in an altercation. Further, was unnecessary force used that exceeded the level of consent.

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Holdings: Trial court did not err. Shawn voluntarily participated in fight, so consented to contact. He had a choice whether or not to show up so cant claim self-defense. No unnecessary or excessive force was used. Reasoning: No weapons were used. P consented to contact by showing up to fight. Self-defense is negated because P had several chances to avoid and then even stop the fight before the serious injury occurred but chose not to. Consent was not exceeded. Consent bars recovery. Notes: Consent would be vitiated by excessive or unnecessary force. (exceeded consent) Excessive force problem: Could argue either way. Consent to breach of peace. In most states, consent is not available defense if fight is breach of peace. Jeremy and Shawns fight violate the statute.

Defense of Self and Others The Proportionality Principle

An actor may use force proportionate to : 1. the interest the actor is proctecting; and, 2. the injury or harm threatened by the other. The law values the interest in human life more highly than the interest in personal property. SLAYTON v. McDONALD 690 So. 2d 914 (La. Ct. App. 1997) Facts: Began as altercation of throwing paper and then older boy threatened younger by saying he was coming to his house. Younger told him he should not come to house. Older showed up at house of younger, where there was no adult supervision. Younger warned older to leave. Older kept walking up driveway. Younger got shotgun and loaded with squirrel shot. Younger retreated into home and called 911 for help. Older followed in the house and continued threats. Older dared younger to shoot him in leg. Older warns that if younger does shoot him then he will beat him. Younger is afraid. Since gun and warnings and 911 didnt deter, he thought he was crazy. Younger never aimed at head or chest. Just before shot fired, older comes clearly into 911 transcripts. Younger shoots Older in leg and causes severe injury. Younger testified that squirrel shot never observed to do very much damage at normal hunting range, but that he never shot up close before. Older requires operations and severly limited activity as a result.

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Proc Hist: Trial court found for D (younger boy). Justified shooting. App. Ct. Affirms finds that no err was made by trial court. Issues: Did trial court err in finding that younger acted reasonably and therefore was justified in shooting Older. Holding: Generally, one is not justified in using weapon for self defense against another who is without weapon and merely intends battery with fists or some manner not inherently dangerous. However, weapons may be justified in certain cases where fear of danger to person being attacked is genuine and founded on facts likely to produce similar emotions in reasonable men. 6 Factor test: All facts and circumstances must be taken into account to determine reasonableness of the actors belief. Pause for consideration cannot be demanded under emergency situations that call for split second decisions. Factors to rely on are: 1. Character and reputation of attacker, 2. belligerence of attacker, 3. large difference in size and strength between parties, 4. overt act by attacker, 5. threats of serious bodily harm, 6. impossibility of peaceful retreat. Younger used reasonable force against older. Reasoning: Trial courts findings of fact suggest that; younger believed older had beaten up people larger than even older was and so was capable of beating younger. Older showed marked belligerence by advancing even in face of shotgun. Older was consisderably bigger than younger. Older admitted to telling younger that if younger shot older, he would get up and beat him. Trial court showed credibility leaned towards younger on issues of disputed testimony. (ex: older testified that he never came more than two feet into the house but other evidence suggests that he was 10 feet into house) Findings of fact were not disturbed on appeal. It is also evident that younger had no peaceful means to retreat. Also, although shotgun is a deadly weapon, younger aimed at leg with what he believed to be relatively low power shot and never aimed at head or chest. 911 showed that younger repeatedly asked older to leave but he didnt. YOUNG v. Warren 383 S.E.2d 381 (N.C. Ct. App. 1989) Facts: P goes in the early morning hours to Ds daughters house and breaks into house and starts altercation with Ds daughter (arguing and jerked her arm). Ds Daughter and her two small children live nearby to D. D shows up with loaded shotgun. D orders P out of house at gun point. When out on porch, D asserts that P started to turn around and put hands down, gun went off, killing P.

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Proc Hist: Civil action jury verdict for D that denies P any recovery on a wrongful death action. P appeals on grounds that trial court erred in giving the defense of family issue to the jury. App Ct. finds for P and remands for new trial. Issues: Did court err in submitting defense of family issue to the jury. Holding: Assault on a third party in defense of a family member is priviledged only if the defendant had a well grounded belief that an assault was about to be committed on another family member. In no event may defendants action be in excess of the privilege of self defense granted by law to the family member. The necessity of the defense must be immediate and attaqcks made in the past, or threats for the future will not justify the privilege. The question of defense of family member should not have been given to the jury in this case. Reasoning: Ds daughter and her children were in the house and removed from any likely immediate harm. Use of force was excessive. Notes: 1. Proportionality in defense of self and others. Serious bodily harm defined as bodily harm so grave or serious that it is regarded different in kind and not merely by degree from other bodily harm. The permanent and protracted loss of the function of any important member or organ is also a serious bodily harm. Risk of fatal consequences is a serious bodily harm. Any parts of Warrens testimony supporting privilege? Turning around to take the gun away, perhaps. Privilege for daughter to shoot after break in and arm jerk. Possibly, because of vast difference in size and age and ability to defend. Also, she would have to show reasonable belief that she was in danger of serious bodily harm. 2. Objective test of perception of threat. 6 factor test used in Slayton. Character and Reputation of attacker Belligerence of attacker Differences in size and strength Was there an overt act by attacker Was serious bodily harm threatened Was peaceful retreat possible (could have exceptions by jurisdiction) Restatement of torts says actor may use deadly force if he is put in peril of death or serious bodily harm or ravishment.

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3. Extent of force used. Extent of force is not measured by harm suffered but by harm defendant intended to cause or was likely to cause. Compare warren and McDonald. (ammunition, spacial differences, etc.) 4. Criminal assault v. civil tort of battery. Also see self defense statutes and notes on page 66. Make my day myth Obligation to retreat

Defense of Land and Personal Property

Also based on principle of proportionality. Less justification for deadly force. The next two opinions discuss right to use force to prevent harm to self and property and also right to prevent intruders from being on land without permission. WOODARD v. TURNIPSEED 784 So. 2d 239 (Miss. Ct. App. 2000) Facts: Minor fired for not cleaning cow before milking. Minor threatened boss. Boss asked minor to leave. Minor did not leave, had no means for transport off of farm. Boss hit minor with broom stick causing bruised kidney, bruised forearm, and blood clot or welt on right flank. Proc Hist: Trial court found for D. P appeals on grounds that Ps motion for directed verdict should have granted because unreasonable force was used. App Ct. finds for P. Reversed and remanded for new trial on damages only. Issues: Did D commit battery or is defense of self and property a valid defense in this case. Holding: a reasonable and fair minded person could not conclude that a fifty seven year old mature man weighing 145 pounds could have believed himself or his property to be in danger of a 90 pound boy under the surrounding circumstances. Finding for Plaintiff. Reasoning: Turnipseed knew that Kenwyon had no ride. Threats were words only. If Turnipseed had been in fear, he would have watched the boy for more than the first few steps after he walked away. Concurring opinion. The defense in this case should have been trespasser who wont leave. A person has the right to evict persons creating disturbances on his premises. Still would have failed because Turnipseed used excessive force based on size and strength, etc. The rule is that an actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm to prevent or terminate intrusion on actors land or chattels as long as conditions have been met. 1. Intrusion is not privileged. 2. Intrusion can only be prevented by the force used. (Subjective test). 3. actor first asked for desist or that actor believes will be useless and damage will occur before desist is asked for.

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Trespassers can be physically removed without having to await the commission of an overtly menacing act. Notes: 1. Reasonable force to protect land and chattels. Turnipseed used excessive force for the property and right that he sought to protect. 2. Reasonable force to eject trespassers. Even if self or property is not threatened, force can be used to eject as long as it does not exceed the force required to eject. Legal interest protected is prevention of injury of invasion. Owner has right to exclusive possession of land. 3. Problem: Whitten v. Cox; Force was excessive. Subjects were unarmed. Why handcuffs? Guns in the face, etc. 4. Limitations on use of reasonable force. Sometimes privilege requires desist request. Others deny privilege when exclusion of trespasser will expose trespasser to substantial risk of bodily harm.

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