Affirmative Defenses (self defense, defense of property, etc.) in Rhode Island

What Are Affirmative Defenses (Self Defense, Defense Of Property, Etc.)?


“Rule 8(c) of the Superior Court Rules of Civil Procedure requires a party to set forth in a responsive pleading the affirmative defenses he intends to raise.” (See Tucker v. Mammoth Mart Inc. (1982) 446 A.2d 760, 762.)

“The failure to raise an affirmative defense in a timely manner constitutes a waiver of that defense.” (See Sweredoski v. Alfa Laval, Inc., C.A. No. PC 2011-1544, at *1 (R.I. Super. May 22, 2013).)

“In Rhode Island, a party seeking to add an omitted affirmative defense to a responsive pleading may move to amend that pleading pursuant to Super. R. Civ. P. 15(a).” (See id.)

“There is no requirement that an affirmative defense be specifically labeled as such, and the defense may be pleaded in general terms so long as it gives the [plaintiff] fair notice of the defense." (See Tucker v. Mammoth Mart Inc. (1982) 446 A.2d 760, 762.)

Self Defense

“The law of self-defense proclaims that a person who reasonably believes that he is in imminent danger of harm at the hands of another may defend himself.” (See Martin v. Estrella (1970) 107 R.I. 247, 253.)

“He does not have to wait for the first blow to land. However, if such person strikes first, he may use only such force as is reasonably necessary for his own protection.” (See id.)

“The permissible degree of force used in self-defense depends on that which is necessary, under all the circumstances, to prevent an impending injury. A person is to be held accountable if he uses excessive force in resisting an assault.” (See id.)

“If excessive force is used, a defendant may not excuse his conduct under the plea of self-defense.” (See id.)

Defense of Others

“An intervenor is justified in using reasonable force to defend another as long as the intervenor reasonably believes that the other is being unlawfully attacked.” (See In re David Victor B (1997) 692 A.2d 695.)

“This Court adopted the Model Penal Code in determining whether the use of force in the defense of another is justified.” (See id.)

"First, the force must be such as the actor could use in defending himself or herself from the harm that he or she believes to be threatened to the third person.” (See id.)

“Second, the third person must be justified in using such protective force in the circumstances as the actor believes them to be.” (See id.)

“Finally, the actor must believe that his or her intervention is necessary for the protection of the third party." (See id.)

Defense of Property

“Unquestionably, if one takes another's property from his possession without right and against his will, the owner or person in charge may protect his possession, or retake the property, by the use of necessary force.” (See Kirby v. Foster (1891) 17 R.I. 437, 438.)

“He is not bound to stand by and submit to wrongful dispossession or larceny when he can stop it, and he is not guilty of assault in thus defending his right, by using force to prevent his property from being carried away.” (See id.)

“But this right of defense and recapture involves two things: first, possession by the owner, and, second, a purely wrongful taking or conversion, without a claim of right.” (See id.)

“A defense to the intentional torts of assault and battery inures to one who is acting in reasonable defense of his or her property.” (See Groff v. David Maurice, 86-3808 (1993), C.A. No. 86-3808, at *1 (R.I. Super. Apr. 7, 1993).)

“The force used must be of a kind appropriate to the defense of the property.” (See id.)

“The reasonableness of the force used is a question of fact for the Court to decide.” (See id.)

Standard of Review and Burdens of Proof

“On a motion for summary judgment, the judgment sought shall be rendered if — when viewed in the light most favorable to the non-moving party — the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there are no genuine issues of material fact.” (See Rhode Island Economic Development v. Parking Co., Nos. KM04-0665, PB04-4189, at *1 (R.I. Super. July 31, 2006).)

"The party opposing the motion for summary judgment carries the burden of proving by competent evidence the existence of a disputed material issue of fact and cannot rest on allegations or denials in the pleadings or on conclusions or legal opinions.” (See id.)

"The court's purpose during summary judgment procedure is issue finding, not issue determination; therefore, if there are issues of fact in dispute the motion for summary judgment must be denied.” (See id)

The Court’s Decisions

It is well settled that “justification is an affirmative defense that connotes a lawful excuse or reason for performing an act.” (See Moody v. McElroy (1986) 513 A.2d 5, 8 n.4.)

It is also well settled that “generally, a party asserting the affirmative defense of laches bears the burden of proof with respect to that defense.” (See Rule 8(c) Superior Court Rules of Civil Procedure [listing laches as an affirmative defense]; Raso v. Wall (2005) 884 A.2d 391, 396 n.12.)

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