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§6.4 Defense – Defense of Property

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 defense of property.

The Bottom Line:

  • "Property owners may use as much force as is reasonably necessary to prevent another from unlawfully coming onto their property or to remove another who is trespassing on their property. Tenn. Code Ann. § 39-11-614(a) (1997); Brookside-Pratt Mining Co. v. Booth, 100 So. 240, 242 (Ala. 1924); Hamilton v. Howard, 28 S.W.2d 7, 10 (Ky. 1930); Bailey v. Ferguson, 183 S.E. 275, 275 (N.C. 1936)." 2002 WL 31109737 at *5.
  • "To raise the defense of property defense, a property 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)." Id.

After an accident, many injury victims and their families want more information on the accident and their legal rights. Consequently, many of them have found their way to these pages. While we are happy you are here, please understand Day on Torts: Leading Cases in Tennessee Tort Law was written to be a quick, invaluable reference for Tennessee tort lawyers. While the book provides the leading case for more than 300 tort law subjects and thousands of related case citations, it is not a substitute for personalized legal advice from a qualified lawyer.

Rather than researching these legal issues alone, we urge you to contact one of our award-winning lawyers who can sit down with you, review your case, answer your questions and clearly explain your rights and your options in a no-cost, no-obligation consultation. Our experienced attorneys handle all personal injury and wrongful death cases on a contingency basis, so we only get paid if we win. If for any reason you are unable to come to our office, we will gladly come to you.

To schedule an appointment, contact us online or call us at 615-742-4880 or toll-free at 866.812.8787.

The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

To order a copy of the book, visit John also blogs regularly on key issues for tort lawyers. To subscribe to the Day on Torts blog, visit

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