Does Tort Law Recognize Self Defense?

Tort law recognizes the personal right to defend oneself when attacked using reasonable force. Self defense is normally applied exclusively to the intentional tort of assault, and battery, but can also be used in false imprisonment cases. This defense is used by a defendant to justify his actions. When a person is attacked or threatened he has the right to cause harm to the attacker in order to protect himself under certain conditions.

Although a person reserves the right to protect himself, once the threat of danger is removed, the privilege of self defense is also removed. A person cannot attack another to exact revenge or for any other reason besides the threat of immediate harm. This concept is usually familiar to the average person: if you are being attacked you have the personal right to exert approximately the same amount of force to protect yourself from injury.

Similarly, if you are being falsely imprisoned, you may use force to escape the unjust confinement. If you are then sued for injuring that person, you may use the defense of self defense to justify your actions.

The level of force used to protect oneself must be proportionate to the attacker's level of threat. A defendant can no longer claim self defense once he has used force above and beyond that of the plaintiff's original attack. If excessive force, force that does not match the level of threat, is used to defend oneself, then a tort is committed. In this case each party may have the right to claim torts against one another.

Deadly force should only be used as a means of self defense if one is threatened with deadly force and is without a means of escape. Deadly force is no always a clear issue and usually relies heavily on the facts of the case. If an opportunity to escape is available, a person should make every attempt to remove himself from the situation before resulting to deadly force. However, this is not usually the case if the victim is attacked in his own home.

The victim is not required to flee from his own property. Sometimes, this is referred to as the castle doctrine and it implies that a person may use any amount of force, including deadly force, in order to prevent an intruder from injuring him inside his own home.

In order for someone to use self defense as a means of justifying his conduct, the actor must have a reasonable belief that he absolutely needed use force in order to prevent injury to himself. Reasonable belief means that any reasonable person would assume, based on the original attacker's actions, that he is in immediate danger.

Even if the defendant was mistaken and there was no actual danger present, he is still able to claim self defense. Retaliation and revenge is never part of self defense; this defense is meant only to protect those who are opposing an immediate attacker.

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