§6.5 Defense – Provocation

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 provocation.

The Bottom Line:

  • "In Tennessee, provocation is a theory used to mitigate damages rather than an affirmative defense. Dent v. Holt, 1994 WL 503891, at *2. It does not completely absolve a defendant from liability like the defense of self-defense does. Instead, it enables defendants to reduce the amount of damages a plaintiff receives by demonstrating that the plaintiff provoked the defendant into the injury-causing conduct. Daniel v. Giles, [66 S.W. 1128, 1128 (Tenn. 1901)]; Jacaway v. Dula, 15 Tenn. (7 Yer.) 82, 83 (1834)." 2002 WL 31109737 at *4.
  • "The theory of provocation stems from the belief that persons should not be permitted to benefit from their own wrongful conduct. Dent v. Holt, 1994 WL 503891, at *1. It arises in circumstances where the plaintiff's conduct is so provocative that it 'heat[s] the blood or arouse[s] the passion of a reasonable man.' Daniels v. Giles, [66 S.W. at 1129]. However, a person attempting to mitigate damages by asserting that he or she was provoked must demonstrate (1) that the plaintiff's conduct was truly provocative, (2) that his or her response to the provocation was not wholly disproportionate to the offense offered, Jenkins v. Hankins, [41 S.W. 1028, 1030 (Tenn. 1897)];Chambers v. Porter, 45 Tenn. (5 Cold.) 273, 282 (1868), and (3) that not enough time had elapsed for the effect of the provocative conduct to dissipate. Lovelace v. Miller, 43 So. 734, 736 (Ala. 1907); Bond v. Williams, 214 S.W. 202, 204 (Mo. 1919)." Id.
  • "The courts have not laid down a definitive test for determining whether a plaintiff's actions are sufficiently provocative to mitigate a defendant's forceful reactions to them. These inquiries are fact-specific. Thus, whether the plaintiff's conduct was truly provocative and whether the defendant's response was disproportionate must be determined on a case-by-case basis in light of all the circumstances." Id. at *5.

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 www.dayontortsbook.com. John also blogs regularly on key issues for tort lawyers. To subscribe to the Day on Torts blog, visit www.dayontorts.com.

Client Reviews
  • Everything was great. You guys are a great representative. I was satisfied with everything. Truly appreciate John Day and his hard-working staff.
    ★★★★★
  • We thought that you did an excellent job in representing us in our lawsuit. We would recommend you to anyone.
    ★★★★★
  • The Law Offices of John Day is, without a doubt, the best in Nashville! They treated me with the utmost respect and tended to my every need. No question went unanswered. I was always kept informed of every step in the process. I received phenomenal results; I couldn't ask for more. I would definitely hire the Law Offices of John Day again.
    ★★★★★
  • I would definitely recommend to anyone to hire John Day's law firm because everyone was helpful, made everything clear and got the job done. I am satisfied with how my case was handled.
    ★★★★★
  • It's been a long battle but this firm has been very efficient and has done a remarkable job for me! I highly recommend them to anyone needing legal assistance. Everyone has always been very kind and kept me informed of all actions promptly.
    ★★★★★
  • I had a great experience with the Law Offices of John Day. The staff was very accommodating, and my phone calls/emails were always responded to in a timely manner. They made the entire process very easy and stress-free for me, and I had confidence that my case was in good hands. I am very happy with the results, and I highly recommend!
    ★★★★★