Defenses to intentional torts

Written by Jobeth Bowers. Posted in .

So this week we get to talk about guns! Fun stuff!

There are two cases that I want to discuss for this week’s tort class involving the use of “excessive force” to defend, and how the affirmative defenses in these intentional torts fail.

The first is a case that for some reason I’ve read a number of times in the past. This case, Katko v. Briney, 183 N.W.2d 657 (Iowa 1971) in which the Briney’s inherit a property that has a farmhouse on it. Over the years of them owning it, but not occupying it, there are a number of break-ins and thefts on the property. In order to stop this, the defendant’s in this case board up the windows, put up some no trespass signs, and rig up a spring-loaded trap style gun, the type you see on cartoons or in video games such as Fallout 3.

Plaintiff Katko, admittedly breaking the law, enters the property and is shot by the spring gun. He suffers injuries and sues, winning $20,000 in compensatory and $10,000 in punitive damages against Briney. In appeal, this case turns on the fact that the defense of self-defense is one that should only be used successfully when defending one’s person of imminent harm of physical injury, fear of death, or sexual assault. The follow-up questions ask whether or not changing the facts to have the owners putting up warning signs about the gun. I think this might introduce an additional defense of “assumption of risk,” but does not instill the privilege of rigging up the trap like they did. However, had they been living in the property, and were protecting themselves the case would likely have had a different outcome.

Side note: If you want to commit such an act and rig up a method to shoot a trespasser (already knowing you’re likely to be liable for any injuries) check out this link I found to the method for rigging up an airsoft (non-lethal) spring gun apparatus! Again, I would never condone such an act, nor am I suggesting that you do something like this.

The next case is Brown v. Martinez, 361 P.2d 152 (N.M. 1961). Here we have a defendant party who is actually present at the time of the trespass but is defending his farm and crops, not his property. Two young boys make a habit of sneaking into the defendant’s garden to steal watermelons. I presume from the limited facts that the defendant decides to stake out his property and scare off the culprits with his shotgun. As expected, the boys return and when he scares them off he fires a shot opposite of the direction that they are running, merely to scare them and with no intent to harm. Unfortunately, one of the boys is somehow shot in the leg and subsequently sues for injuries. I think it’s important to quote some of the actual text from the case “The reasonableness of the force used is usually a question of fact for the jury. But as in the case of self-defense, the law has marked out certain limitations. The force used must be of a kind appropriate to the defense of the property. A push in the right direction may be proper where a slap in the face is not.”

The court here looks to the fact that there is no evidence that the defendant in any way felt personally threatened, and therefore the force used was deemed as excessive. The court upheld the fact that he would be liable for the injuries caused. I am sure that there will be some extensive discussion on this topic in class. Feel free to get that started in the comments below.

Jobeth Bowers

Written By Jobeth Bowers

Maryland Attorney Jobeth Bowers is the founder of Bowers Law and a graduate of the University of Baltimore School of Law

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