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http://legal-dictionary.thefreedictionary.com
ne·ces·si·ty
3.an imperative requirement or need for something: the necessity for a quick decision.
4.the state or fact of being necessary or inevitable: to face the necessity of testifying in court.
7.Philosophy . the quality of following inevitably from logical, physical, or moral laws.
—Idiom
8.of necessity, as an inevitable result; unavoidably; necessarily: Our trip to China must of
necessity be postponed for a while.
In U.S. criminal law, necessity may be either a possible justification or an exculpation for
breaking the law. Defendants seeking to rely on this defense argue that they should not be held
liable for their actions as a crime because their conduct was necessary to prevent some greater
harm and when that conduct is not excused under some other more specific provision of law such
as self defense. Except for a few statutory exemptions and in some medical cases [1] there is no
corresponding defense in English law.[2]
For example, a drunk driver might contend that he drove his car to get away from a kidnap (cf.
North by Northwest). Most common law and civil law jurisdictions recognize this defense, but
only under limited circumstances. Generally, the defendant must affirmatively show (i.e.,
introduce some evidence) that (a) the harm he sought to avoid outweighs the danger of the
prohibited conduct he is charged with; (b) he had no reasonable alternative; (c) he ceased to
engage in the prohibited conduct as soon as the danger passed; and (d) he did not himself create
the danger he sought to avoid. Thus, with the "drunk driver" example cited above, the necessity
defense will not be recognized if the defendant drove further than was reasonably necessary to
get away from the kidnapper, or if some other reasonable alternative was available to him.
However case law suggests necessity is narrowed to medical cases.
The political necessity defense saw its demise in the case of United States v. Schoon.[3] In that
case, thirty people, including appellants, gained admittance to the IRS office in Tucson, where
they chanted "keep America's tax dollars out of El Salvador," splashed simulated blood on the
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counters, walls, and carpeting, and generally obstructed the office's operation. The court ruled
that the elements of necessity did not exist in this case.[4]
Contents
• 1 General discussion
• 2 Specific jurisdictions
o 2.1 International Law
2.1.1 Customary Int'l Law
o 2.2 United States
2.2.1 In specific states
• 3 See also
• 4 References
NECESSITY ( TORT)
In tort common law, the defense of necessity gives the State or an individual a privilege to take
or use the property of another. A defendant typically invokes the defense of necessity only
against the intentional torts of trespass to chattels, trespass to land, or conversion. The Latin
phrase from common law is necessitas inducit privilegium quod jura privata, "Necessity induces
a privilege because of a private right." A court will grant this privilege to a trespasser when the
risk of harm to an individual or society is apparently and reasonably greater than the harm to the
property. Unlike the privilege of self-defense, those who are harmed by individuals invoking the
necessity privilege are usually free from any wrongdoing. Generally, an individual invoking this
privilege is obligated to pay any actual damages caused in the use of the property but not
punitive or nominal damages.
Contents
• 1 Private Necessity
o 1.1 Vincent v. Lake Erie Transportation Co.
• 2 Public Necessity
o 2.1 Surocco v. Geary
o 2.2 Wegner v. Milwaukee Mutual Ins. Co.
• 3 See also
• 4 External links
• 5 Sources
A strong wind blows a parachuting skydiver off course from his intended landing zone.
He must land in a nearby farmer's field. The skydiver tramples on the farmer's prized
roses, and the farmer hits the skydiver on the head with a pitchfork. The skydiver can
invoke the privilege of private necessity for trespassing in the farmer's fields but will
have to pay for the damage caused to the roses. The farmer will be liable for battery
because the use of force in defense of property is not privileged against an individual who
successfully claims private necessity.
In American law, the case most often cited to explain the privilege of private necessity is Vincent
v. Lake Erie Transp. Co., 109 Minn. 456, 124 N.W. 221 (1910).
• Facts
Defendant Lake Erie was at the dock of plaintiff Vincent to unload cargo from Reynolds,
the steamship owned by the defendant. An unusually violent storm developed. Lake Erie
was unable to leave the dock safely and deckhands for the steamship instead tied the
Reynolds to the dock, continually changing ropes as they began to wear and break. A
sudden fierce wind threw the ship against the dock significantly damaging it.
• Issue
• Decision
(Judge O'Brien) Yes. A private necessity may require one to take or damage another's
property, but compensation is required. If the Reynolds had entered the harbor at the time
the storm began, and the wind knocked her against the dock, this force of nature would
not have allowed Vincent to recover. The defendant, Lake Erie, deliberately kept the
Reynolds tied to the dock. If they had not done so, the ship could have been lost creating
a far greater damage than what was caused to the dock. Although this was a prudent thing
to do, Lake Erie is still liable to Vincent for the damage caused.
• Dissent
(Judge Lewis) One who constructs a dock and conducts business assumes a risk of
damage that may occur from storms. For this reason, Judge Lewis did not agree with the
majority and believed that Vincent had assumed the risk of damage caused by Lake Erie.
To invoke the private necessity privilege, the defendant must have been actually threatened or
have reasonably thought that a significant harm were about to occur. The ruling in Vincent v.
Lake Erie assures private citizens from a public policy stand point that they will be compensated
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for their loss. Vincent will be compensated for repairs and Lake Erie can rest assured that their
ship will not sink.
• Facts
San Francisco was hit by a major fire. The plaintiff, Surocco, was attempting to remove
goods from his home while the fire raged nearby. The defendant and mayor of San
Francisco, Geary, authorized that the plaintiff's home be demolished to stop the progress
of the fire and to prevent its spread to nearby buildings. Surocco sued the mayor claiming
he could have recovered more of his possessions had his house not been blown up.
• Issue
Is a person liable for the private property of another if destroying that property would
prevent an imminent public disaster?
• Decision
No. The right of necessity falls under natural law and exists independent of society and
government. Individual rights must give way to the higher law of impending necessity. A
house on fire or about to catch on fire is a public nuisance which is lawful to abate.
Otherwise one stubborn person could destroy an entire city. If property is destroyed
without an apparent necessity, the destroying person would be liable to the property
owner for trespass. Here, blowing up Surocco's house was necessary to stop the fire. Any
delay in blowing up the house to allow him to remove more of his possessions would
have made blowing up the house too late.
The decision in Surocco v. Geary differs from the private necessity doctrine that a trespasser
must compensate a property owner for any damage she may cause. The next case coincides with
the private necessity doctrine and shows that American courts are conflicted on the issue of
compensation for damage.
• Facts
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• Issue
Must a city compensate a homeowner whose property was damaged in the apprehension
by police of a suspect?
• Decision
It is an issue of public policy to determine if either private individuals or the public at large
through taxes should bear the loss for damages caused through public necessity. Wegner v.
Milwaukee allocates the loss that benefits the public to the public rather than to Wegner, the
innocent citizen. Cases with similar facts to Wegner have used the public necessity doctrine
under Surocco, and the individual must bear the cost of the greater public good. Courts
determine this issue as a matter of public policy.
Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856
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http://jonathanturley.org
The DUI Necessity Defense: Montana Supreme Court Rules That
Woman Can Claim Necessity Defense in Driving Drunk to
Avoid Fight
Necessity defenses in tort and criminal law are always somewhat controversial and rarely successful in
criminal prosecutions. However, Lisa Marie Leprowse has secured a reversal of her DUI conviction
from the Montana Supreme Court, which ruled that the trial court erred in not allowing her to argue
Here is how the Montana Supreme Court described the underlying facts in Montana v. Leprowse:
On May 12, 2008, Leprowse was charged in District Court with assault with a weapon and DUI. The
assault charge was later dismissed. The allegations in support of these charges are as follows. On April
27, 2008, dispatch advised officers in Missoula County that someone had pointed a gun at another
individual at the Other Place, a bar in Turah, Montana. Dispatch further advised that the suspect left
the Other Place westbound on I-90 in a white SUV heading to a trailer park near the Cross Roads
Truck Stop. Dispatch advised the officers that the vehicle was being driven by Leprowse.
Deputy Tillman stopped and processed Leprowse for a DUI. According to the charging documents,
Leprowse was cooperative with Deputy Tillman, told the deputy how much she had to drink, and
admitted she was intoxicated. Meanwhile, Deputy Schmill went to the Other Place to speak with the
victims and witnesses. An individual named Jim Meixner (Meixner) told Deputy Schmill that Leprowse
and Stephanie Wahl (Wahl) had been in a physical altercation in the women’s bathroom at the Other
Place. Meixner stated that he broke up the fight and separated the women. Meixner and Leprowse
were subsequently talking outside the bar on the back patio when Leprowse asked Meixner for her
hand gun back. Meixner had been keeping Leprowse’s hand gun at his house. Pursuant to her request,
Meixner went to his house and retrieved the gun and brought it to Leprowse.
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Meixner told officers that Wahl then came “out of nowhere” and knocked both of them to the ground.
Leprowse and Wahl then started calling each other names. Meixner helped Leprowse to her vehicle
and she drove away. Meixner told officers that Leprowse did not point the gun at anybody during this
time.
Wahl told officers a different story. Wahl claimed that she came out of the bar after her altercation
with Leprowse, and saw Meixner and Leprowse kissing on the back patio. When she confronted them,
she claimed that Leprowse pulled out her hand gun, pointed it at her head and twice threatened to
Leprowse asked to present an affirmative defense that she was trying to avoid the fight when she
drove 14 miles. The prosecution objected and said that she should have stayed in her car and called
911. The trial court barred the defense. However, under MCA § 45-2-212, that state recognizes an
affirmative defense:
A person is not guilty of an offense, other than an offense punishable with death, by reason of conduct
which he performs under the compulsion of threat or menace of the imminent infliction of death or
serious bodily harm if he reasonably believes that death or serious bodily harm will be inflicted upon
We hold that the District Court incorrectly concluded prior to trial that Leprowse could not present
evidence in support of the affirmative defense of compulsion. Leprowse alleged the required elements
for the compulsion defense. She claimed she was compelled to drive away from the bar due to an
imminent threat of serious bodily injury, and that her belief was reasonable. Whether Leprowse was
actually compelled to drive the distance of 14 miles, and ostensibly commit a DUI, is at its essence a
Leprowse should be given the opportunity to present evidence which, if accepted by a rational trier of
fact, would show that her belief was reasonable and that she was compelled to take the actions that
she did. After Leprowse has had an opportunity to present such evidence to the jury, whether she is
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entitled to receive a jury instruction on her affirmative defense may be decided by the District Court
The question now is how many Montana drunks will claim bar fights as the cause for their driving.
What is Tort?:
• Negligence
• Duty
• Breach of Duty
• Statutory Duty
• Human Rights Act 1998
• Duty
• Breach of Duty
Negligence:
• Trespass to Land
• Private Nuisance
• Public Nuisance
• Strict Liability
• Liability for Animals
Protection of Reputation:
• Liability
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• Defamation
• Absolute Defences
• Qualified Defences
• Other Torts
• Vicarious Liability
• Joint & Several Liability
• Contribution
Remedies:
• Injunctions
• Types of Damage
• Compensatory Damages
• Personal Injury Damages
• Consent
• Exclusion of Liability
• Contributory Negligence
• Illegality
• Limitation
• Necessity