Problem 2

[Jeff White]

Anyone can be sued by anyone else for anything. I don't know what California law says about immunity in a case like this.


http://www.insidebayarea.com/news/ci_21843732/marin-county-suspected-burglar-sues-90-year-old

Marin County: Suspected burglar sues 90-year-old man who shot him
By Gary Klien, Marin Independent Journal
Posted: 10/24/2012 07:35:08 AM PDT

MARIN COUNTY -- A 90-year-old Greenbrae man who was shot in the head during an alleged burglary has been sued by the alleged burglar.

Samuel Cutrufelli, who was also shot during the incident, claims Jay Leone "negligently shot" him during the confrontation inside Leone's home.

Cutrufelli, 31, claims Leone caused him "great bodily injury, and other financial damage, including loss of Mr. Cutrufelli's home, and also the dissolution of Mr. Cutrufelli's marriage."

Cutrufelli shot Leone once in the face during the alleged burglary, and Leone returned fire, hitting Cutrufelli several times. Both men were hospitalized for an extended period after the gun battle.

Cutrufelli, whose charges include two counts of attempted murder against Leone, is near the end of his criminal trial. The negligence lawsuit was filed on his behalf by his father and his criminal defense attorney........Read the rest at the link

 

[Fred_G]

Wow. That is crazy.

 

[Jeff H]

Unbelievable.

 

[KMcCoy]

Didn't read the link but I know it has been a trend to go after a victims homeowners insurance claiming negligence or accidental shooting in circumstances like this because most of us have insurance exceeding our worth.

So if you break in and I shoot you on purpose, and you go along with that premise, you can attempt to sue me for all I'm worth but my insurance isn't in the picture. "All I'm worth" will leave you rather disappointed.

On the other hand, if you claim I shot you negligently or accidentally you can sue me for all my insurance is worth, a lot more money.

 

[TimeRegained]

That's just American law in practice.

Anyone can be sued for anything despite contracts, signatures, etc.

The case may not go anywhere but the lawsuit remains until dismissed.

It's sad. No, I believe it's tragic but it's the American legal thoroughfare.

 

[Godsgunman]

Really, REALLY? First off what kind of dead beat lawyer even represents something this moronic? Second I hope a judge with any form of common sense laughs in his face and orders these morons out of the court room. Better yet disbarment for the lawyer for wasting the judges time. No wonder we are where we are in this country.

 

[Ehtereon11B]

Gideon v Wainright is the reason for the lawyer representation.

Regardless there have been very few civil lawsuit cases that have been beneficial to society in the last 2 decades. Most just cause prices of medicine and medical procedures to go up, and companies left and right playing CYA. The state (any 50) really can't do much as a whole because it would violate equal protection under the law to allow "legitimate" civil lawsuits while blocking useless ones like this one.

 

[Deanimator]

In Ohio, the aggressor in a justifiable shooting, BY LAW, cannot recover a PENNY from the victim.

In practice, it's proved to be quite difficult to find attorneys willing to take contingent cases which they cannot win, from which they cannot recover anything, and for which they can expect to be paid NOTHING.

Here in Ohio, we don't believe that an incompetent criminal should be able to profit from his own incompetence.

I would no more live in California than I'd live in North Korea.

 

[9mmepiphany]

The ability to file a lawsuit is much like paying the lottery...to have any chance of winning, you have to buy a ticket.

It doesn't mean it will go anywhere, but what does the father have to lose...it isn't likely he has a lot of pride in his son's actions

 

[Old Fuff]

Well it is California.... :banghead:

 

[Fred_G]

I think I am safe in Louisiana.

"§2800.19. Limitation of liability for use of force in defense of certain crimes

A. A person who uses reasonable and apparently necessary or deadly force or violence for the purpose of preventing a forcible offense against the person or his property in accordance with R.S. 14:19 or 20 is immune from civil action for the use of reasonable and apparently necessary or deadly force or violence.

B. The court shall award reasonable attorney fees, court costs, compensation for loss of income, and all expenses to the defendant in any civil action if the court finds that the defendant is immune from suit in accordance with Subsection A of this Section.

Acts 2006, No. 786, §1."

http://www.legis.state.la.us/lss/lss.asp?doc=408383

I like part B.

 

[mljdeckard]

You can think you are safe, but all it takes is a lawyer looking to make a name for himself and a judge who has been sleeping on the couch for a couple of weeks, and you will be putting your lawyer's kids through college anyway. Regardless of the inevitable outcome.

I would say; "This is insane. It needs to go to a jury to let them see how absurd this is." But what's going on here, the homeowner has some asserts and/or insurance, and the bad guy is fishing for a settlement to help with his legal expenses in the criminal trial. He knows they will toss him $10k to go away.

 

[Frank Ettin]

This is always a risk. 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, allege negligence.

This probably isn't going to get anywhere. These suits often don't. But the reality is that the risk of litigation is a fact of modern life.

 

[hermannr]

It has been my experience that what they really wnat is for you to settle out of court so they can walk away with some money, rather than going through the expense of a trial.

The one time I was sued, the outcome was I spent 10k (actually cheap for discovery) and the judge asked why the person suing me was wasting the courts time...Then he awarded me costs, even though we had not asked for them...because, as my dad said..."you can't get blood out of a turnip".

Being awarded court costs and collecting are two completely different things when the person suing you has no assets or income.

 

[Fred_G]

There is something to be said for controlled pairs in a true self defense situation. Just saying.

 

[mgkdrgn]

The first Judge that looks at this will toss it into the trash bin where it belongs ... once he stops laughing that is.

 

[CoRoMo]

From the Article:
...Leone returned fire, hitting Cutrufelli several times.

...no bullets were left in the gun.

So much for the meme that you won't have to fire but once, maybe twice before the threat vacates the premises.

 

[mhuxtable]

If I got shot in the head/faced I'd probably empty my gun into him too.

 

[Jon_Snow]

California, as well as a number of States, has no immunity law.

I don't think that's true. I'm having a hard time finding a link, but my understanding was that in Ca you are immune from civil suits resulting from the injury or death of a person you shot in self defense-once you're been tried and found found not guilty by reason of self-defense. In this case, it sounds like the burglar hasn't even been tried yet, so I don't think the civil immunity has set in yet. I also don't know if you are protected if the DA decides not to prosecute.

 

[Frank Ettin]

I don't think that's true. I'm having a hard time finding a link, but my understanding was that in Ca you are immune from civil suits resulting from the injury or death of a person you shot in self defense-once you're been tried and found found not guilty by reason of self-defense....

Well, I've practiced law in California for over 30 years and know of nothing of the sort.

So unless you come up with a valid citation, I'll need to consider that you are wrong.

 

[Jon_Snow]

Ok, I found the citation, but I was wrong. It only protects you from the family of a person killed by you as the result of a justifiable homicide. Gilmore vs. Superior Court: http://law.justia.com/cases/california/calapp3d/230/416.html

It's not applicable here because the burglar survived the encounter and there's been no trial yet and thus no finding that the shooting was justified.

 

[Frank Ettin]

Ok, I found the citation, but I was wrong. It only protects you from the family of a person killed by you as the result of a justifiable homicide. Gilmore vs. Superior Court: http://law.justia.com/cases/california/calapp3d/230/416.html

It's not applicable here because the burglar survived the encounter and there's been no trial yet and thus no finding that the shooting was justified.

Gilmore is not about immunity. It is about establishing a good defense to a tort claim. The real key in Gilmore was the actual finding that as a matter of law that use of lethal force was justified. Justification is as much a defense to a tort action as to a criminal charge.

Here's what happened in Gilmore:

1. Alice Schmidt brought a civil suit against Gilmore for wrongful death based the the fact that Gilmore had shot and killed her son.
   
   
2. Apparently after some initial discovery, Gilmore filed a motion for summary judgment. Summary judgment is a way to dispose of a civil claim before a trial. The basis of a motion for summary judgment is (1) there is no dispute as to the material facts; and (2) based on the material fact thus established to be true, the party moving for the summary judgment is entitled to a judgment in his favor as a matter of law.
   
   
3. A key element to Gilmore's motion for summary judgment was that in a preceding criminal prosecution arising out the same incident Gilmore was (1) convicted of manslaughter; but (2) that conviction was overturned by the court of appeal on the grounds that the undisputed evidence in the criminal trial demonstrated that as a matter of law Gilmore's act was justifiable homicide; and (3) therefore Gilmore was entitled to an acquittal as a matter of law.
   
   
4. The finding of the court of appeals in connection with the criminal prosecution established for all purposes that Gilmore's use of lethal force in the incident was justified.
   
   
5. Justification is a defense to the tort claim brought by Schmidt. Since justification has been established, Gilmore was entitled to a judgment in his favor. In the lawsuit brought by Schmidt, Gilmore won at the summary judgment stage; and Schmidt lost.

There are a variety of ways to challenge a civil suit or to try to dispose of a civil suit without going all the way through a trial. Summary judgment is one of those ways. Hopefully Mr. Leone will be able to take advantage of available summary procedures and get this monkey off his back.

 

[Sheepdog1968]

I live in CA and have taken classes which usually have an hour or two dedicated to the legal aspects. You can be sued just like you see in the original post.

 

[Jon_Snow]

Frank, I stand corrected. Thanks for the legal lesson.

 

[Cosmoline]

Gideon v Wainright is the reason for the lawyer representation.

That has nothing to do with civil suits. If he's represented, it's because he's in California. That state's tort law has long favored the plaintiffs. The Marin county jury pool is liable to be rich, but that can be a bad thing. Rich jurors tend to be unduly sympathetic, anti-gun and give overly generous awards.

The solution to this nonsense, or at least a good way to limit its effect, would simply be to adopt Alaska's loser-pays system and Rule 68 offer of judgment scheme. If plaintiffs gamble wrong, then end up owing tens of thousands or more in legal fees.