Premises owners and retailers are often faced with cases involving detention of shoplifters or activities to remove unruly patrons from the premises. When the party to be removed is injured in the altercation, a lawsuit often follows, alleging negligence against the premises owners’ employees. Often times, the Defendants will argue that their actions were taken in reaction to provocation from the Plaintiff. The claim of self-defense may be asserted, but has not often been recognized by the Courts.
The Ohio Supreme Court recently weighed in on the issue and has now stated that the affirmative defense of self-defense may apply to negligence actions. In Niskanen v. Giant Eagle, Inc., 122 Ohio St. 3d 486, 2009 – Ohio – 3626, the Ohio Supreme Court held that the issue of whether self-defense applies to a particular tort claim is to be determined on a case-by-case basis by examining whether the evidence supports the defense; there is no per se rule against asserting self-defense in negligence actions.
Niskanen involved the death of a patron at Giant Eagle, who left the store without paying for his groceries. The manager followed the decedent out of the store, and shouted to another employee to stop him from leaving. The employee, who was in the parking lot at the time, approached the decedent, who subsequently punched the employee in the face, knocking him to the ground. The manager then ran out in defense of his employee, and was likewise punched and knocked to the ground.
Others proceeded to restrain decedent. He was held on the ground until authorities arrived. When authorities arrived, the decedent was found to have no pulse.
The estate filed suit on his behalf, alleging multiple claims. Several intentional tort claims were alleged, but dismissed on the morning of trial. The Defendants asserted, among other defenses, self-defense, and a jury found that the decedent was 60% liable for his own death, thus absolving the Defendants from any blame under Ohio law. The estate then appealed, asserting that a jury instruction on self-defense was improper in this case.
The Court, relying upon two earlier cases, Goldfuss v. Davidson and State v. Poole, affirmed that a Defendant may be relieved of liability for tortuous conduct by proving that such conduct was in self-defense. The Court reasoned that self-defense is a “justification defense”, which, when relevant, functions as an excuse for an otherwise wrongful act, not as a denial or contradiction of the evidence establishing that the act was committed. As such, the Court held that there was no reason to limit this defense to one particular type of case so long as the Defendants actions can fairly be said to have been committed in self-defense.
The Court further explained that the issue of self-defense must be determined on a case by case basis. The Court noted that it found self-defense was not applicable in the Goldfuss case, because the Defendant was not in danger of death or serious bodily harm at the time of the Defendant’s acts.
In Niskanen, the Court found that the defense of self-defense was applicable to the Plaintiff’s claim for undue restraint. Merchants with probable cause may detain a suspect under R.C. Section 2935.041(A) in a reasonable manner and for a reasonable length of time. The Court found in Niskanen that the actions of the decedent, in punching two employees, created a sufficient factual basis for a self-defense assertion.
Plaintiff attempted to assert that the use of self-defense is only applicable in cases where a Defendant intentionally uses deadly force. The Court rejected the argument, acknowledging that self-defense is typically asserted when a Defendant admits to intentionally using force to repel a danger, but has never held that a Defendant must admit its intent to cause a specific injury in order to assert the defense. The Defendant in Niskanen was only required to admit that its employees intentionally held down the decedent to subdue him, not that it intended to hold him to the ground until he died.
The important factor to consider before asserting self-defense as an affirmative defense is the activity of the Plaintiff in precipitating an event. It does not appear that the Court will favor the assertion of self-defense when a Defendant initiates violent activity. If the Defendant is acting lawfully, and a Plaintiff reacts violently, reasonable activity to defend ones self may provide a full defense.
Should you desire full text of this decision and opinion, or have any other questions in general, that are specific to these issues, please contact one of our general casualty practice group members.