## Facts

- Frank Abbott and the Scarano family were neighbors who shared a common driveway.
- A dispute arose after the Scaranos paved their portion of the driveway and Abbott used extra asphalt to make a small doorstop near his garage.
- Nicholas Scarano objected; an altercation began with a fistfight in which Abbott threw the first punch, though the jury could find Nicholas was the aggressor.
- The incident escalated when Michael Scarano approached with a hatchet; Abbott claimed Mary Scarano also advanced with a knife and fork.
- The hatchet caused injuries to the Scaranos, and Nicholas sustained severe head injuries; Abbott claimed he was also cut.
- Abbott admitted he obtained control of the hatchet but denied using it offensively, asserting the injuries occurred during a struggle for the tool.
- A jury acquitted Abbott of assaults on Michael and Mary but convicted him of atrocious assault and battery on Nicholas.
- The Appellate Division affirmed; the New Jersey Supreme Court granted review focused on the self-defense instructions, especially retreat.

## Issues

1. When, under New Jersey self-defense law, does a non-aggressor have a duty to retreat rather than use force.
2. Whether the duty to retreat applies to non-deadly force, or only when the defendant is about to use deadly force.
3. Whether the trial court’s retreat instruction was legally correct and sufficiently clear to permit a valid verdict.

## Decision

- The Supreme Court reversed the conviction and remanded for a new trial.
- The Court held that a duty to retreat exists only when the defendant is about to use deadly force and knows he can withdraw with complete safety.
- The Court concluded the trial court’s charge failed to confine retreat to deadly-force situations and failed to convey the knowledge-and-complete-safety limits, risking a conviction on an incorrect retreat theory.

## Legal Principles

- A non-aggressor has no duty to retreat before using non-deadly force in self-defense.
- A person may not use deadly force in self-defense if he knows he can avoid the need for deadly force with complete safety by retreating.
- Retreat analysis must track the phase of the confrontation and the kind of force at that time; a generalized retreat instruction can mislead the jury.
- The defendant’s actual awareness of safe retreat, assessed in light of the immediacy and stress of the encounter, is central to the retreat inquiry.

## Conclusion

The court adopted a limited retreat rule for self-defense in New Jersey: retreat is required only before deadly force and only when the defendant knows withdrawal can be made with complete safety. Because the jury instructions did not state these limits with adequate clarity, the conviction was reversed for a new trial.


State v. Abbott, 36 N.J. 63, 174 A.2d 881 (N.J. 1961)