Private necessity is a defense in tort law against charges of trespass in situations where defendants have interfered with the plaintiff's property in an emergency to advance or protect their own interests.
In Benamon v. Soo Line Railroad, the Appellate Court of Illinois, First District, Third Division noted that the privilege of private necessity allows a trespasser to enter the property of another without permission in an emergency when such entry is reasonably necessary to avoid serious harm. The privilege of private necessity must be exercised at a reasonable time, in a reasonable manner, and in light of all the circumstances. The property owner owes a duty of reasonable care under the circumstances.
Nevertheless, private necessity does not serve as an absolute defense to liability for trespass. A defendant who commits trespass and invokes the defense of private necessity must still pay for any harm done to the property caused by the trespass. However, the defendant is not liable for nominal or punitive damages. Furthermore, if the emergency which caused the defendant to commit trespass on the plaintiff's property continues, the defendant is entitled to remain on the plaintiff's land and cannot be ejected as long as the emergency continues.
Contrast with public necessity. See also necessity defense.
[Last updated in January of 2024 by the Wex Definitions Team]
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