Day On Torts : Tennessee Injury Lawyer & Attorney : John Day : Personal Injury, Accidents : Serving Memphis, Nashville, Knoxville

This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Tennessee Tort Cases.  The book will be available about May 1, 2010.  To order the book go here.

§ 6.6       Defense – Self-Defense

The Case:  Poliak v. Adcock, No. M2000-02325-COA-R3-CV, 2002 WL 31109737 (Tenn. Ct. App. Sept. 24, 2002).

The Basic Facts: Defendant got into a fight with his daughter’s live in boyfriend. He raised several defenses, including self-defense. 

The Bottom Line: 

• “Self-defense is a complete defense to a civil action for battery. Dent v. Holt, No. 01A01-9302-CV-00072, 1994 WL 503891, at *1 (Tenn. Ct. App. Sept. 16, 1994) (No Tenn. R. App. P. 11 application filed). Thus, persons who can prove that they were acting in self-defense when they assaulted another person will be absolved from liability for the injuries they may have caused.” 2002 WL 31109737 at *3.

• “The elements of the defense are essentially the same in civil and criminal cases. Shelby Ins. Co. v. Mathes, No. E2000-00186-COA-R3-CV, 2000 WL 1035949, at *2 (Tenn. Ct. App. July 27, 2000) (No Tenn. R. App. P. 11 application filed); [Restatement (Second) of Torts § 63 (1965)]. The defense reflects the principle that persons are entitled to defend themselves when they reasonably believe they are about to be seriously injured. [Restatement (Second) of Torts §§ 63, 65 (1965)]; Tenn. Code Ann. § 39-11-611(a) (1997). However, persons are entitled to use force to defend themselves only as long as the threat of injury continues, Sneed v. Englert, Hamilton Law, 1984 Tenn. App. LEXIS 2657, at *3-4 (Tenn. Ct. App. Feb. 7, 1984) (No Tenn. R. App. P. 11 application filed), and may use only as much force as is necessary to defend themselves. McLemore v. Moore, 2 Tenn. Cas. (Shannon) 142, 143 (1876); McCain v. Vaughn, No. 02A01-9707-CV-00154, 1999 WL 95974, at *2 (Tenn. Ct. App. Feb, 26, 1999) (No Tenn. R. App. P. 11 application filed); Dent v. Holt, 1994 WL 503891, at *2.” Id.

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Lawyer Mark Lambert , an attorney with the Cochran Firm in Memphis, has been sued by Greg Herbers, a Memphis hair stylist, over injuries Herbers says he received in an alteration with Lambert in the bathroom of a Memphis bar.

According to the story in the Commercial Appeal, Herbers

entered the restroom around 9 p.m. and noticed the one stall was occupied by two men "performing some activity other than going to the bathroom." Herbers said that when he told the men he needed to use the toilet, Lambert, who was standing at the urinal but appeared to know the men in the stall, became aggressive. Lambert allegedly approached Herbers in a "menacing" fashion and jumped on him, grabbing his head and clawing at his neck.  Herbers said the next thing he felt was excruciating pain.  He heard teeth crunch and noticed blood pouring from his left nostril.  

The newspaper article reports that Lambert and the two men in the stall fled the bathroom and the scene.

In a phone interview with Action News 5, a Memphis television station,  Lambert said he only acted in self-defense after Herbers physically assaulted him for no reason.  Lambert admitted to biting off part of Herbers' nose, but says he spit it out  and didn't swallow it.   You can see the news report and photographs of the injuries here.

As a warning to those who might be inclined for whatever reason to bite another person, I am quite sure that Lambert was surprised to learn that Herbers is HIV-positive. Friendly medical advice from a person who is not a doctor:  do not bite and draw blood from someone who is HIV-positive.

The Dish in Cooper-Young is the bar where the incident occurred.   Cooper- Young is a neighborhood in the Midtown section of Memphis.

I cannot put my hands on a copy of the complaint but it certainly alleges the tort of battery at the very least.  A battery is an intentional act that causes an unpermitted, harmful or offensive bodily contact. Doe v. Mama Taori's Premium Pizza, LLC, No. M1998-00992-COA-R9-CV, 2001 WL 327906 (Tenn. Ct. App. April 5, 2001).  Biting someone certainly qualifies as battery.

Self-defense is a complete defense to a civil action for battery in Tennessee.  Persons are entitled to use force to defend themselves only as long as the threat of injury exists and may use only such force as is necessary to defend themselves.  Poliak v. Adcock, No. M2000-02325-COA-R3-CV, 2002 WL 31109737 (Tenn. Ct. App. Sept. 24, 2002).  In this case, the burden of proving that defense will be on Mr. Lambert.

For reasons unknown to me, these cases are not available on Google Scholar.  The cited  cases and other cases are discussed in Chapter 5 of my book, Day on Torts:  A Handbook for Tennessee Tort Lawyers 2009.

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Nashville is mourning the death of Steve McNair, former quarterback of the Tennessee Titans.

McNair was murdered during the early morning hours of Saturday, July 4.  It is not completely certain who murdered him, but news reports indicate that the police are not looking for suspects and appear to be exploring whether McNair's 20-year old girlfriend, Sahel Kazemi, killed McNair and then shot herself in the head.  Apparently, the gun was found under Kazemi's body.

USA Today has reported that the handgun recovered at the scene was recently purchased by Kazemi.  The Tennessean has a similar story.  Federal law prohibits those under 21 from purchasing a handgun from a licensed dealer.  The identity of the gun seller has not been released to the public (if it is even known).

Is there a tort case here?  Yes - whoever killed McNair committed battery under Tennessee law.  Battery is an intentional act that causes an unpermitted, harmful or offensive bodily contact.   Murder definitely qualifies.

So, whoever killed McNair can be sued for battery.  The problem with lawsuits in intentional torts cases is the collectability issue - murderers frequently don't have assets and liability insurance (from homeowner's or apartment dweller's policies) does not cover intentional acts.  It would be a challenge to prove that the four shots into Steve's body were the result of a negligent act (unless the murder weapon was an automatic -which is highly unlikely).

Is there a cause of action against the seller of the handgun?  Perhaps.  A violation of federal law may give rise to negligence per se.  Many years ago my mentor and I sued a company that sold a rifle to a woman who went home and killed herself.  The seller violated federal law by selling the gun to a person who had been in a mental institution (she checked the have-you-been-in-a-mental-institution box on the form you must complete when you buy a gun, but the store sold the gun to her anyway).  (Here is an example of  ATF Form 4473.)  We won the case at a trial in federal court, but the damages were relatively small. 

The sale of a handgun ammunition to a minor who later killed himself was held not to give rise to liability of the seller in Rains v. Bend of the River, 124 S.W.3d 580 (Tenn. Ct. App. 2003).  The Rains court did not decide the issue of whether it would apply negligence per se,  dismissing the case instead on causation grounds.

Thus,  (a) if a gun was illegally sold to a minor in Tennessee; (b) if a minor used that gun to commit a murder in Tennessee;  and (c) if a wrongful death suit was filed in Tennessee arising out of that murder Tennessee law would be examined to determine whether the sale of the handgun to the minor was negligence per se.   According to Rains, the factors taken into account include 

(a) whether the plaintiff belongs to the class of persons the statute was designed to protect; ... (b) whether the plaintiff's injury is of the type that the statute was designed to prevent.  ... [c] whether the statute is the sole source of the defendant's duty to the plaintiff; [d] whether the statute clearly defines the prohibited or required conduct; [e] whether the statute would impose liability without fault; [f] whether invoking the negligence per se doctrine would result in damage awards disproportionate to the statutory violation; and [g] whether the plaintiff's injury is a direct or indirect result of the violation of the statute.  [Citations omitted.]

If the gun was sold to a minor by someone other than a licensed dealer a cause of action for negligent entrustment should be evaluated.

In summary, there is much to be learned about how Steve McNair came to be shot and who shot him before one can evaluate what civil liability, if any, arises from the death.

UPDATE ON JULY 6, 2009 AT 9:30 P.M.

The Metropolitan Police Department has now revealed that Ms. Kazemi bought the handgun found at the scene on Thursday night before the Saturday murder.   The gun was purchased from a private owner.  The identity of the private seller has not been released.

It is not illegal for a private citizen to sell a weapon to a 20 year old in Tennessee unless the purchaser is intoxicated.  T.C.A. Sec. 39-17-1303.

UPDATE #2 ON JULY 7 AT 4:55 A.M.

There is a more complete story today about Ms. Kazemi purchasing the weapon.  The story indicates that '[t]he woman was not old enough to legally carry a handgun or purchase one from a gun dealer. The person who sold the gun to Kazemi is not in custody and may not be charged because the seller may not have known Kazemi was under 21, police said."   The statements about the law are not quite correct.

T.C.A. 37-17-1303 prohibits the sale of handguns to minors.  It is also illegal to sell a gun to someone who is intoxicated.

However, under Tennessee law, a minor is someone who is under 18 (except in cases involving  alcohol).  T.C.A. 1-3-105(16).  Similarly, it is legal for a person age 18 and over to possess a handgun in Tennessee.  T.C.A. Sec. 9-17-1319, although they cannot obtain a handgun carry permit.   T.C.A. Sec. 39-17-1351. 

Thus,  it is legal for a private individual to sell a handgun to a person between the age of 18 and 21.   No background check is required for the private sale.  T.C.A. Sec. 39-17-1316(m)(3).

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