§6.4 Defense – Defense of Property

The Case: Poliak v. Adcock , No. M2000-02325-COA-R3-CV, 2002 WL 31109737 (Tenn. Ct. App. Sept. 24, 2002).

The Basic Facts: Defendant got into a fight with his daughter's live in boyfriend. He raised several defenses, including defense of property.

The Bottom Line:

• "Property owners may use as much force as is reasonably necessary to prevent another from unlawfully coming onto their property or to remove another who is trespassing on their property. Tenn. Code Ann. § 39-11-614(a) (1997); Brookside-Pratt Mining Co. v. Booth, 100 So. 240, 242 (Ala. 1924); Hamilton v. Howard, 28 S.W.2d 7, 10 (Ky. 1930); Bailey v. Ferguson, 183 S.E. 275, 275 (N.C. 1936)." 2002 WL 31109737 at *5.
• "To raise the defense of property defense, a property owner must prove (1) that the plaintiff was trespassing on his or her property, (2) that he or she reasonably believed that the force used on the trespasser was necessary to get the trespasser off or to keep the trespasser off his or her property, and (3) that he or she first asked the trespasser to leave and that the trespasser refused or that he or she reasonably believed that any such attempt would have been useless or would have caused substantial harm. [Restatement (Second) of Torts § 77 (1965)]. Property owners can never use force that endangers human life or inflicts serious bodily harm. State v. McCombs, 253 S.E.2d 906, 911 (N.C. 1979); see also State v. Buell, No. 01C01-9607-CC-00292, 1997 WL 677947, at *3 n.7 (Tenn. Crim. App. Nov. 3, 1997) (No Tenn. R. App. P. 11 application filed)." Id.

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