§6.5 Defense – Provocation

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 provocation.

The Bottom Line:

• "In Tennessee, provocation is a theory used to mitigate damages rather than an affirmative defense. Dent v. Holt, 1994 WL 503891, at *2. It does not completely absolve a defendant from liability like the defense of self-defense does. Instead, it enables defendants to reduce the amount of damages a plaintiff receives by demonstrating that the plaintiff provoked the defendant into the injury-causing conduct. Daniel v. Giles, [66 S.W. 1128, 1128 (Tenn. 1901)]; Jacaway v. Dula, 15 Tenn. (7 Yer.) 82, 83 (1834)." 2002 WL 31109737 at *4.
• "The theory of provocation stems from the belief that persons should not be permitted to benefit from their own wrongful conduct. Dent v. Holt, 1994 WL 503891, at *1. It arises in circumstances where the plaintiff's conduct is so provocative that it 'heat[s] the blood or arouse[s] the passion of a reasonable man.' Daniels v. Giles, [66 S.W. at 1129]. However, a person attempting to mitigate damages by asserting that he or she was provoked must demonstrate (1) that the plaintiff's conduct was truly provocative, (2) that his or her response to the provocation was not wholly disproportionate to the offense offered, Jenkins v. Hankins, [41 S.W. 1028, 1030 (Tenn. 1897)];Chambers v. Porter, 45 Tenn. (5 Cold.) 273, 282 (1868), and (3) that not enough time had elapsed for the effect of the provocative conduct to dissipate. Lovelace v. Miller, 43 So. 734, 736 (Ala. 1907); Bond v. Williams, 214 S.W. 202, 204 (Mo. 1919)." Id.
• "The courts have not laid down a definitive test for determining whether a plaintiff's actions are sufficiently provocative to mitigate a defendant's forceful reactions to them. These inquiries are fact-specific. Thus, whether the plaintiff's conduct was truly provocative and whether the defendant's response was disproportionate must be determined on a case-by-case basis in light of all the circumstances." Id. at *5.

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