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Poliak v. Adcock9/24/2002
y owner must prove (1) that the plaintiff was trespassing on his or her property, (2) that he or she reasonably believed that the force used on the trespasser was necessary to get the trespasser off or to keep the trespasser off his or her property, and (3) that he or she first asked the trespasser to leave and that the trespasser refused or that he or she reasonably believed that any such attempt would have been useless or would have caused substantial harm. Restatement (Second) of Torts § 77 (1965). Property owners can never use force that endangers human life or inflicts serious bodily harm. State v. McCombs, 253 S.E.2d 906, 911 (N.C. 1979); see also State v. Buell, No. 01C01-9607-CC-00292, 1997 WL 677947, at *3 n.7 (Tenn. Crim. App. Nov. 3, 1997) (No Tenn. R. App. P. 11 application filed).
Mr. Adcock's testimony in his deposition fails to substantiate any of the ingredients of a defense of property defense. Mr. Poliak was not an uninvited guest in Mr. Adcock's house. He was living there at the invitation of Mr. Adcock's adult daughter, who was a resident of the home. After his daughter invited Mr. Poliak to live with her, Mr. Adcock did not express dissatisfaction about Mr. Poliak's presence. His silence over a period of months, as a matter of law, must reasonably be construed as permission for Mr. Poliak to remain in the house. Restatement (Second) of Torts § 892 (1965) (stating that inaction can be construed as consent if the circumstances would make a reasonable person believe that he or she had consent to be on the property).
Similarly, Mr. Adcock's testimony does not demonstrate that striking Mr. Poliak with a two-by-four was immediately necessary to prevent or terminate Mr. Poliak's trespass or that the assault did not cause serious bodily harm. Months earlier, Mr. Adcock had ordered Mr. Poliak out of the house when he discovered Mr. Poliak in bed with his daughter and granddaughter. Mr. Poliak had complied with this demand making further force or threats of force unnecessary. Accordingly, the record provides no basis for concluding that Mr. Adcock was required to resort to violence on July 11, 1998 to remove Mr. Poliak from his house. There is certainly no factual justification for seriously injuring Mr. Poliak. If Mr. Adcock wanted Mr. Poliak to leave his house on July 11, 1998, he should have asked him to leave. The circumstances as described by Mr. Adcock do not provide a justification for using force to defend his house. Accordingly, the trial court properly concluded that Mr. Adcock would have been unable to substantiate a defense of property defense had this case gone to trial.
IV.
We affirm the partial summary judgment foreclosing Mr. Adcock's affirmative defenses as a matter of law and remand the case to the trial court for further proceedings consistent with this opinion. We tax the costs of this appeal to James H. Adcock and his surety for which execution, if necessary, may issue.
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