Austin v. U-Tote-M of Broward
241 So. 2d 186, 1970 Fla. App. LEXIS 5411 (1970)
Rule of Law:
A person acting in self-defense may be held liable for assault and battery if they use force exceeding that which is reasonably necessary to prevent impending injury, particularly when employing deadly force against an unarmed assailant without first attempting to retreat.
Facts:
- The plaintiff and his brother entered a U-Tote-M store managed by defendant Tarzan Arwood in the late afternoon.
- After selecting and paying for a six-pack of beer, the plaintiff began to direct vile and abusive language toward Tarzan's nineteen-year-old son and another young man behind the counter.
- Tarzan Arwood, hearing the commotion, came inside, joined his son, and was included in the verbal altercation, eventually telling the plaintiff to leave.
- The plaintiff responded by threatening to kill Tarzan and the two young men behind the counter.
- Despite no overt attempts by the plaintiff to carry out the threat at that moment, Tarzan proceeded to the back of the store, retrieved a twenty-gauge, single-barrel shotgun, and returned to the counter while holding it.
- Tarzan again told the plaintiff to leave, while the plaintiff's brother, standing nearby, urged the plaintiff to comply.
- The plaintiff then stated he would take the shotgun away from Tarzan and use it on him, simultaneously putting his left leg on the counter as if to go across it and throwing his beer.
- Tarzan immediately shot the plaintiff, inflicting a wound in his left hip.
Procedural Posture:
- The plaintiff filed a complaint against Tarzan Arwood and the corporate defendant for an “unprovoked assault.”
- The case proceeded to a non-jury trial in a trial court (court of first instance).
- The trial judge entered final judgment for the defendants as to liability, finding that Tarzan Arwood acted reasonably and in self-defense.
- The plaintiff (appellant) appealed the trial court’s judgment to the Florida District Court of Appeal, where Tarzan Arwood and the corporate defendant were the appellees.
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Issue:
Does a store manager act reasonably and in self-defense, or does he use excessive force, when he shoots an unarmed, verbally abusive customer who threatens violence and makes a hostile physical gesture, without attempting to retreat?
Opinions:
Majority - McCAIN, Judge
No, Tarzan Arwood did not act reasonably in self-defense, but rather used excessive force, rendering him liable for assault and battery. The court found that while the plaintiff's language was vile and threatening, he took no overt acts to carry out these threats until after Tarzan had already armed himself with a shotgun. The court reiterated that one who uses force exceeding that privileged to use, even in self-defense, is liable for the excessive force. It cited precedent stating that self-defense requires avoiding deadly force when possible and retreating if necessary, consistent with one's own safety, and that deadly force is only consistent with a reasonable belief of imminent danger of death or great personal injury. The court noted that mere words or epithets are generally not a justification for assault. It concluded that Tarzan's actions, from arming himself to shooting the unarmed plaintiff in response to a hostile gesture rather than an actual physical assault with a deadly weapon, constituted excessive force. The age, sex, and physical condition of the parties also established the impropriety of the shooting, suggesting other ways the situation could have been handled.
Dissenting - REED, Judge
Yes, the trial judge's finding that Tarzan Arwood acted reasonably and in self-defense was supported by competent substantial evidence and should be affirmed. The dissent argued that the appellate court's task is not to re-determine facts but to ascertain whether the trial judge, as the trier of fact, had competent substantial evidence to reach his conclusion. The dissent emphasized that a person is privileged to use force, including deadly force, if they reasonably believe they are in peril of death or serious bodily harm that can only be safely prevented by such force. While acknowledging the duty to retreat before using deadly force when possible, the dissent contended that the facts, when viewed most favorably to the prevailing party (defendants), reasonably justified the trial judge's decision. The plaintiff was not alone, as his brother was present and backing him up; the plaintiff had threatened to kill Tarzan; and despite being unarmed, he had stated an intent to appropriate Tarzan's own shotgun for use against him, and made a move toward the counter. The dissent concluded that the majority improperly re-tried the issue of liability based on a written record and substituted its judgment for that of the trial judge.
Analysis:
This case significantly clarifies the limits of self-defense in civil assault and battery claims, particularly concerning the use of deadly force. It reinforces the principle that even in the face of verbal provocation and threats, the force used must be proportionate to the perceived threat, and deadly force is generally unwarranted against an unarmed assailant unless there is an imminent danger of death or great bodily harm. The ruling highlights the duty to retreat when possible before resorting to deadly force, and emphasizes that arming oneself and then escalating a verbal altercation into a shooting constitutes excessive force, even if the aggressor makes a hostile gesture. This decision serves as a reminder that self-defense is not a license for disproportionate retaliation and places a high bar on justifying deadly force in Florida.
