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Old October 25, 2012, 09:09 AM   #1
jmortimer
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Defendant sues 90-year-old man who was shot

Greenbrae shooting defendant sues 90-year-old man who was shot
By Gary Klien
Marin Independent Journal
Posted: 10/23/2012 02:26:10 PM PDT
http://www.marinij.com/rosskentfield...ce=most_viewed

The slip and fall lawyers are at it again. Dude looks good for 90 and the "Defendant" is as stupid as his attorney. Multiple gun placement always a good idea for home protection. Firing all your ammunition at bad guy was a great idea in this case.
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Old October 25, 2012, 09:34 AM   #2
Glenn E. Meyer
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Oh, so you don't have legal problems after a 'good shoot'? How many times have we heard that.

Maybe Frank can explain the nuances. I could offer an outraged opinion worth nothing as I don't have the expertise. So can we avoid just that?
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Old October 25, 2012, 09:39 AM   #3
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The issue you allude to have been discussed in relation to using reloaded ammunition for self-defense and the potential for criminal prosecution and the potential that using reloads will handicap your defense. That is a non-issue here. As for a civil case, as we have here, I have always maintained that I would rather have a client who was shot with factory ammunition, that has a record of advertising and testing data used to validate and market factory ammunition that is more destructive. And better yet, a client who was shot with a 10mm or shot by a defendant who took tactical training classes. I have long pointed out that it is the civil case that may bite you in the arse, not the reload, but we digress.

Last edited by jmortimer; October 25, 2012 at 09:50 AM.
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Old October 25, 2012, 09:50 AM   #4
Glenn E. Meyer
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No, that issue has been raised with an entire host of factors that influence court decisions. Not just the ammo and reloads.

But we shouldn't digress - it is also the case that many posters in T and T have said they would do X, Y and Z and told this is questionable, said they don't have to worry about a good shoot.
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Old October 25, 2012, 09:56 AM   #5
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There are as many slip and fall lawyers as there are stars in the sky. Virtually any activity, even criminal enterprise, can be the basis of an idiotic law suit. That this 90 year old victim is a defendant in a civil law suit is an outrage. Tort reform would be a good solution but the "trial lawyers" have serious lobby power on both state and national levels.
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Old October 25, 2012, 10:00 AM   #6
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The Meth addict put a gun to the 90 year’s head and pulled the trigger, but the gun was empty because because the Meth head had emptied it shooting at the home owner .

And the Meth addict gets to sue the home owner!

It just shows the illegitimacy of our legal system when a Methamphetamine user can break into your house, tie you up, shoot you, and sue you if he gets shot during the commission of his crime.
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Old October 25, 2012, 10:25 AM   #7
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Samuel Cutrufelli, who was also shot during the incident, claims Jay Leone "negligently shot" him during the confrontation inside Leone's home.
How does one "negligently" shoot someone that they intended to shoot?

Negligence implies an act due to carelessness
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Old October 25, 2012, 12:15 PM   #8
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The word for the day is "methamphibian".
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Old October 25, 2012, 12:48 PM   #9
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Can't the judge throw out a suit like this? Even if the judge can't/won't throw out the suit, does the victim really have anything to lose here, besides time and being inconvenienced? There's no way the robber would win... right?
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Old October 25, 2012, 01:03 PM   #10
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Thank god even in ILLINOIS we have laws protecting home owners from being sued by scum bag criminals who are shot during a home invasion/burglury.
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Old October 25, 2012, 02:55 PM   #11
Frank Ettin
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Quote:
Originally Posted by Glenn E. Meyer
Oh, so you don't have legal problems after a 'good shoot'? How many times have we heard that.

Maybe Frank can explain the nuances. I could offer an outraged opinion worth nothing as I don't have the expertise....
Not much to say with the minimal information available. But a civil action like this is basically a variation on the disagreement about whether or not it was a "good shoot." You might think it was a good shoot, and you might be right. But yours is not the final say. If the DA disagrees, you'll be charged and tried for a crime. If the guy you shot disagrees, you'll have to fight it out in civil court.

California, as well as a number of States, has no immunity law. Even in States with immunity laws, it's always possible to litigate whether the threshold conditions for protection have been satisfied.

And even immunity laws protect one only in the case of justified use of force in self defense. The wrinkle is that the use of force in self defense is necessarily an intentional act. This lawsuit, as most of this type, appears to allege negligence.

I doubt this will get anywhere, but a risk of litigation is part of life in the modern world.

Quote:
Originally Posted by Stressfire
It just shows the illegitimacy of our legal system...
Our legal system of necessity involves some compromises and tradeoffs.

The civil legal system exists to provide a peaceable way of resolving disputes. If procedures make it too difficult to sue, some meritorious claims will be foreclosed. If it's too easy to sue, there will be bogus and worthless claims that will need to be dealt with. Our system does offer a variety of ways to deal with merit-less claims at early stages.

As with anything that involves a balancing of interests, folks will disagree about where the balance point should be. Anyone who feels strongly enough that the current balance point is in the wrong place can get politically active and try to push for legislative change.

Quote:
Originally Posted by Stressfire
...How does one "negligently" shoot someone that they intended to shoot?

Negligence implies an act due to carelessness
Negligence is more complex than simple carelessness. But in any event, whether the shooting was negligent or intentional is probably at the core of the dispute.
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Old October 25, 2012, 03:11 PM   #12
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@Stressfire,

You asked,
Quote:
How does one "negligently" shoot someone that they intended to shoot?
The answer is that homeowner's insurance covers negligent and not intentional acts. Simply winning a case isn't any good if you cannot collect the judgment. That's why the Plaintiff's lawyer pleaded negiigence; so he might be able to collect from the insurance company.

On the other hand, it means the homeowner Defendant gets a lawyer paid for by the insurance company. That beats paying for your lawyer yourself.

As to the civil suit, Texas has a law supplementing its Castle Doctrine. Basically, if you can prove the facts that invoke the Castle Doctrine (in this case entering the home by force most likely) that will preclude a civil suit like this. Oh, it can still be filed, but it can be thrown out fairly easily.
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Old October 25, 2012, 09:43 PM   #13
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Quote:
How does one "negligently" shoot someone that they intended to shoot?
Woody summed it up very well. I know someone who was the subject of an unprovoked carjacking attempt. The detectives and DA agreed that it was a justified shoot. He even got his gun back.

So, he was left to deal with the nightmares.

Until about six months later, when the "victim's" family decided to bring a wrongful death suit on the grounds of negligence. Bear in mind, this was in a state with a "stand your ground" law.

Fortunately, he was able to tell the judge that negligence was not a factor, since he did in fact mean to shoot his aggressor, and the whole thing was thrown out.

Nonetheless, that was his time, stress, and money on top of all the other issues he was working through.
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Old October 25, 2012, 09:56 PM   #14
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Quote:
The answer is that homeowner's insurance covers negligent and not intentional acts. Simply winning a case isn't any good if you cannot collect the judgment. That's why the Plaintiff's lawyer pleaded negiigence; so he might be able to collect from the insurance company.
This is EXACTLY why it's so important to be sure no one can support a claim that you may have fired your gun accidentally in a self-defense situation.

If such a claim can be supported that means your homeowner's insurance policy will pay and the insurance company has deep enough pockets to make it worthwhile.
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Old October 25, 2012, 10:59 PM   #15
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Quote:
Originally Posted by JohnKSa
This is EXACTLY why it's so important to be sure no one can support a claim that you may have fired your gun accidentally in a self-defense situation.
EDIT: Sorry, John. I misread your statement. As you were.
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Last edited by Frank Ettin; October 25, 2012 at 11:04 PM. Reason: Oops
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Old October 26, 2012, 08:22 AM   #16
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Quote:
The answer is that homeowner's insurance covers negligent and not intentional acts. Simply winning a case isn't any good if you cannot collect the judgment. That's why the Plaintiff's lawyer pleaded negiigence; so he might be able to collect from the insurance company.

On the other hand, it means the homeowner Defendant gets a lawyer paid for by the insurance company. That beats paying for your lawyer yourself.
All makes perfect sense...and yet...

Since it's really all the man can do at this point, I hope his counter-suit works out
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Old October 26, 2012, 04:34 PM   #17
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I think Woody55 is on the right track with the insurance angle. This is a nuisance suit. Some insurance companies are willing to pay a few thousand dollars early in litigation because it's cheaper than actually litigating the case to conclusion. Some are not. Yet, if there is no basis in fact to claim Leone negligently shot Cutrufelli, then it seems to me Cutrufelli's attorney can possibly have some liability, depending on state laws and the willingness to pursue the attorney.

Federal Rule of Civil Procedure 11 (and many state rules) allow sanctions against attorneys in certain circumstances. FRCP 11 states, in part:
Quote:
(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: . . .

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; . . .

(c) Sanctions.

(1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee. . . .
http://www.law.cornell.edu/rules/frcp/rule_11

Most courts only begrudgingly enforce Rule 11 because they do not want to encourage a cottage industry of Rule 11 litigation. Yet, they sometimes do so. I do not know if California has a state counterpart to Federal Rule 11.
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Old October 26, 2012, 07:00 PM   #18
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IMHO: KyJim is correct..been on the "defendent" end of that exact idea myself. Done to me, done to my BIL.

To prove there was no merit in the suit, the judge in my case stated "why is this wasting my time" well your honor, I just refuse to pay for something I am not responsible for. Was awarded my costs...never got a penny back...as my dad said "you can't get blood out of a turnip" Plaintive had no assets or income...no recovery. BTW: The guy that sued me made his living doing this sort of stuff. He had no real job...left WA for MT shortly after loosing to me.
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Old October 30, 2012, 11:24 AM   #19
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More on this HERE. Even the New York papers are all over this outrage.

I work at Walmart and one day this guy booked it out the fire door with an $800 computer. I was on break and when I got back it was all over. I told my manager "If I had been here I would have grabbed the computer."

He told me "If you did and got in a wrestling match for it and he slipped and hurt his knee he would sue us and win. Running is an important part of his chosen vocation as a shoplifter and if he can't run he can't work. That $800 computer would become a $50,000 computer."

<sigh>

Quote:
Cutrufelli allegedly fired his gun, hitting Leone in the jaw area, and Leone fired back. Cutrufelli then wrestled his gun away, put it to Leone's head and pulled the trigger, but no bullets were left in the gun.
This is why I recommend a double action small frame (5 shot) .38 or .357 revolver for home protection. If you miss with all five shots, or they don't stop the person, and they take it away you have presented them with a club. A double action revolver also does not require anything other than pulling the trigger -- no safety, slide, or cocking.
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Old October 30, 2012, 11:38 AM   #20
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This is a case of shot placment bigtime. Both the homeowner and the BG in this case were shot but continued the fight.

In regards to using a gun as a club, even if the bad guy was still armed I think you would be in legal trouble in most states for clubbing someone to death with a gun. Its screwed up but often times you have greater legal protections when shooting someone than if you stabbed, beat, or otherwise dispatched a bad guy.
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Old November 1, 2012, 02:56 PM   #21
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If the plaintiff claims the decision to shoot was made with negligence, then the homeowner's insurance would attach.
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Old November 1, 2012, 10:38 PM   #22
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Right, and that's a point many never consider. I see a lot of folks making statements that it's ridiculous that their opponent would try to prove that the homeowner's gun went off accidentally in a self-defense encounter. What they don't understand is that there's a potentially significant payoff for making and being able to support such a claim.
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Old November 2, 2012, 08:50 PM   #23
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Here, I'll make this easy for y'all. Yesterday the intruder was convicted of felony attempted murder (Two counts( and other related crimes. Under Cakifornia Code section 847, (a) an owenr,..., of any estate or any other interest in real property, whether possessory or nonpossessory, shall not b4e liable to any person for any injury or death that occurs upon that property during the course of or after the commission of any of the felonies set forth in subdivision (b) by the injured or deceased party. Subdivision (b) includes (8) any other felony in which the defendnat inflicts great bodily injuryon any person, other than an accomplice, or any felony in which the defendant uses a firearm; (9) attempted murder, (etc etc etc)

An owner is not immune for willful, wanton, or criminal conduct.

The case is essentialy dead in the water.
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Old November 2, 2012, 10:21 PM   #24
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Quote:
Originally Posted by 62coltnavy
...Yesterday the intruder was convicted of felony attempted murder (Two counts( and other related crimes. Under Cakifornia Code section 847, ...

The case is essentialy dead in the water.
Excellent information and new information to me. And I suspect that you're probably correct that the civil case should now be dead.

However, Cutrufelli could still probably amend his civil complaint to allege that Mr. Leone's conduct resulting in Cutrufelli being shot was willful or wanton. I doubt that Cutrufelli could get anywhere with that, but it might take some discovery and a summary judgment motion for Leone to finally dispose of the civil suit.

And just for clarification, the correct citation is California Civil Code 847.
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Old November 2, 2012, 10:31 PM   #25
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Good news - good ending. Thanks for the information and the clarification.
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