Restatement (Second) of Torts sec. 265
REST 2d TORTS s 265
Restatement (Second) of Torts s 265 (1963-1964 Main Vol.)
Restatement of the Law Second
Division 1. Intentional Harms to Persons, Land, and Chattels
Chapter 10. Privileges Intentionally to Invade Interests in Present and Future
Possession of Chattels
Topic 2. Privileges Arising Irrespective of Consent
Copyright (c) 1965 The American Law Institute
s 265. DUTY OR AUTHORITY BASED UPON PUBLIC INTEREST
One is privileged to commit an act which would otherwise be a
trespass to a chattel or a conversion if he is acting in discharge
of a duty or authority created by law to preserve the public safety,
health, peace, or other public interest, and his act is reasonably
necessary to the performance of his duty or the exercise of his
See Reporter's Notes.
a. The rule stated in this Section is applicable whether the authority or duty is created by a statute or whether it is created by the common law. In the exercise of such duty or authority, the actor must act for the purpose of discharging his duty or for the purpose for which the authority is conferred, and he must exercise it in a reasonable manner, causing no unnecessary harm.
It is beyond the scope of this Restatement to state when an officer or a private citizen is under a duty to act, or is authorized to act. Particular statutes may authorize him to act when he reasonably believes it to be necessary. Other statutes may be construed to give him the authority only when there is actual necessity. If he is found to be authorized, the rule stated in this Section applies.
b. Abatement of public nuisance. A public officer who, by virtue of his office or by a statute, is authorized to abate a public nuisance, is privileged under the rule stated in this Section to deal with a chattel in the possession of another, which by reason of its position or use, constitutes a public nuisance. In this respect, the rule stated in this Section is analogous to the privilege of a public officer to enter land in the possession of another for the purpose of abating a public nuisance as stated in s 202. The Comments to that Section, therefore, are applicable here in so far as they are pertinent.
c. The rule stated in this Section is applicable to an inspector,
surveyor, or other administrative officer acting under authority
of a statute in the discharge of his official duties.
1. A, a cattle inspector, is authorized to test all cattle suspected of having tuberculosis, and to kill all cattle reasonably believed to have the disease. While making tests on B's cattle, A without negligence causes a steer to fall down and break its leg. A is not liable to B.
d. Arrest. The rule stated in this Section is applicable to an
intermeddling with a chattel in the possession of another by a
public officer or private citizen making a lawful arrest, whether
with or without warrant, in which respect it is analogous to the
similar privilege to enter land in the possession of another for
such a purpose as stated in s 204. Therefore, the Comments on
that Section are applicable here in so far as they are pertinent.
2. A, a peace officer, having reasonable ground to believe that B is transporting stolen goods in his automobile, arrests B. In searching the car A, without negligence, damages some valuable property in the rear seat. A is not liable for the harm thus caused.
e. Recapture and prevention of crime. The rule stated in this
Section is applicable to one making a privileged recapture of
a person previously arrested or a convicted prisoner, or to one
acting in a reasonable effort to prevent the commission of a crime
or to detain a dangerous lunatic, where the intermeddling is reasonably
necessary to effect the exercise of such privilege, duty, or authority,
and in this respect is analogous to the privilege to enter land
in the possession of another for any similar purpose as stated
in s 205.
3. A, a peace officer, shoots to prevent the escape of B, a convicted felon who is fleeing in a stolen automobile belonging to C. The bullet punctures a tire. A is not liable to C for the harm thus caused.
4. A, a police officer, commandeers B's automobile to pursue an escaping felon. A is not liable to B unless he has other adequate means of pursuing the criminal.
REST 2d TORTS s 265