Brown v. Martinez

Supreme Court of New Mexico · 1961 · Torts

361 P.2d 152 (N.M. 1961)

Updated July 23, 2026

Tortsdefense of propertytrespassbatterydeadly forcetrespassersmisdemeanortransferred intent

Facts

The 15-year-old appellant and other boys twice went onto appellee's farm to steal watermelons, and on the second night appellant stood near the fence while other boys entered the melon patch. Hearing the boys, appellee came out of his house with a rifle, yelled for them to leave, and fired toward the southeast to scare them rather than to hit anyone. The bullet struck appellant in the back of the left leg, breaking the bones and exiting through the front. The trial court found the boys had trespassed, damaged the fence, and taken or destroyed melons, and concluded appellee used only reasonably necessary force to eject them.

Issue

Whether a landowner may lawfully use a rifle to scare away or stop trespassers who are stealing watermelons and thereby avoid civil liability when one of the boys is shot. Also, whether liability exists even though the landowner did not intend to hit the particular boy who was injured.

Rule

As a matter of law, the use of a gun or other force calculated to cause death or serious bodily injury is not permissible merely to prevent trespass or protect property from unlawful acts not amounting to a felony, absent a threat to the actor's personal safety. When a person intentionally acts to put another in apprehension of harmful or offensive contact, and that act causes harmful contact to someone else, the actor is liable for the resulting battery even if he did not intend to injure that particular person.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Late one evening outside Roswell, New Mexico, Owen Paredes saw two teenagers climbing over his orchard fence and stuffing peaches into backpacks. From his porch, Owen fired a handgun into the ground near them to scare them off, and a fragment struck one teen in the face, causing serious injury.

In the teen's battery action against Owen, which is the strongest argument for liability?

Explanation. The majority rule is that a landowner has no privilege to use a gun or similarly dangerous force merely to prevent trespass or protect property from nonfelonious misconduct when no threat to personal safety is shown. Liability does not depend on an intent to hit the particular victim, and the trespass does not justify deadly or seriously harmful force.