The following entry contains the Scope Note and select Black Letter of Tentative Draft No. 5, Chapter 3. Privileges, Topic 3. Defense of Actor’s Interest in Possession of Land and Personal Property, from Restatement of the Law Third, Torts: Intentional Torts to Persons. The full draft contains Comments and Reporters’ Notes.

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CHAPTER 3. PRIVILEGES

TOPIC 3. DEFENSE OF ACTOR’S INTEREST IN POSSESSION OF LAND AND PERSONAL PROPERTY

Scope Note: This Topic deals with an actor’s privilege to engage in battery, assault, purposeful infliction of bodily harm, or false imprisonment (“intentional torts to persons”) in defense of the actor’s interests in land or personal property. It is outside the scope of this Restatement to define the terms “land” and “property” or the legal boundaries of ownership, possessory, and custodial interests. For this purpose, this Restatement incorporates the relevant Sections of the Restatement Fourth of Property.

The privileges described in this Topic exist only when the actor has a valid possessory interest in the land or personal property. It is not necessary that the actor be legally entitled to retain the possession of the land or personal property against all the world; it is enough that the actor has, with respect to the person intruding on the property, the better right to possession.

§ 30. Privilege to Defend Land or Personal Property from Intrusion

An actor is privileged to engage in conduct that would otherwise satisfy the elements of battery, assault, purposeful infliction of bodily harm, or false imprisonment in order to prevent another’s imminent intrusion or terminate another’s intrusion upon the actor’s land or personal property, if:

(a) the intrusion is not privileged;

(b) the actor first asks the intruder to desist and the intruder disregards the request, or the actor reasonably believes that a request will be useless or dangerous or that substantial harm will be done before the request can be made;

(c) the actor reasonably believes that the other is intruding or imminently will intrude upon the actor’s property, and that the intrusion can be prevented or terminated only by the means used;

(d) the means used are reasonably proportionate to the value of the interest the actor is protecting; and

(e) the means used are not intended or likely to cause death or serious bodily injury.

 

§ 31. Privilege to Defend Land or Personal Property from Intrusion by Use of a Mechanical Device

An actor is privileged to engage in conduct that would otherwise satisfy the elements of battery, assault, purposeful infliction of bodily harm, or false imprisonment by employing a mechanical device for the purpose of preventing or terminating another’s intrusion upon the actor’s land or personal property only if:

(a) the use of the type of device employed is reasonably necessary to protect the property from intrusion;

(b) the use of the particular device is reasonably proportionate to the value of the interest the actor is protecting;

(c) the device is one customarily used for such a purpose, or reasonable care is taken to make its use known to probable intruders; and

(d) the use of the device is not intended or likely to cause serious bodily harm.

 

Kenneth W. Simons

Reporter, Restatement of the Law Third, Torts: Intentional Torts to Persons

Kenneth W. Simons is a leading scholar of tort law, criminal law, and law and philosophy. He has published influential scholarship concerning assumption of risk and contributory negligence; the nature and role of mental states in criminal, tort and constitutional law; and negligence as a moral and legal concept. He has published influential scholarship concerning assumption of risk and contributory negligence; the nature and role of mental states in criminal, tort and constitutional law; and negligence as a moral and legal concept. Professor Simons was a law clerk to U.S. Supreme Court Justice Thurgood Marshall and to Judge James L. Oakes, U.S. Court of Appeals for the Second Circuit.

W. Jonathan Cardi

Associate Reporter, Restatement of the Law Third, Torts: Intentional Torts to Persons

Jonathan Cardi  is a professor at Wake Forrest University School of Law. Professor Cardi specializes in tort law, the law of remedies, and the intersection of race and the law. He is co-author of a torts casebook, a remedies casebook, two commercial outlines, and is co-editor of a book entitled Critical Race Realism. He has served as President of the Southeastern Association of Law Schools and Chair of the Remedies Section of the AALS.

Jennifer Morinigo

The American Law Institute

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