Wright v. Haffke

Nebraska Supreme Court · Torts

TortsDefense of propertyUse of forcedefense of propertyreasonable forcefirearmrobberyrecapture of property

Facts

Plaintiff and Evans entered defendant's store together, acted in a manner defendant found suspicious, and returned together to the checkout stand after going to the dairy box. When defendant opened the cash register, he was pushed off balance and saw two hands entering the register, one with a light cover and one with a black cover; as the men turned toward the door, defendant drew his gun and fired. The first shot struck plaintiff in the back, and a second shot at Evans missed. Evidence also showed plaintiff gave police a false name and that money was found near where plaintiff fell, supporting defendant's position that plaintiff was participating in the robbery.

Issue

Whether defendant was privileged to use a gun to protect or retain his property during the robbery and whether, on this record, the force was unreasonable as a matter of law. The appeal also raised whether the evidence required a finding that plaintiff was not a participant and whether certain trial rulings required reversal.

Rule

A person may use reasonable force in defense of property. Use of force is privileged when property is tortiously taken from the owner's possession and it reasonably appears that the felon is about to remove the property from the owner's premises; ordinarily, a firearm may be used if reasonably necessary to prevent the commission of a felony or to arrest a felon after a felony has been committed. When a firearm is used, the question whether the force exceeded permissible limits is for the jury under proper instructions.

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

At a neighborhood market in Lincoln, Nebraska, Omar Velasquez opened the register after a customer asked for change. The customer shoved Omar into a shelf while a second man scooped bills from the drawer; as both men pivoted toward the exit with the cash, Omar fired one shot and wounded one of them.

If the wounded man sues Omar for battery, which is the best analysis?

Explanation. The majority held that when property has been tortiously taken from the owner's possession and it reasonably appears the felon is about to remove it from the premises, reasonable force is privileged. In the context of an assaultive robbery, a firearm may ordinarily be used if reasonably necessary. Whether the force exceeded permissible limits is generally a jury question, not something resolved against the defendant as a matter of law. (Derived from Wright v. Haffke (n.d.).)