Drunken plaintiff breaks into defendant's home, thinking it belonged to a friend. He is shot inside the home and sues the shooter.
- Case Name: Patrick O'Neil v. Giovanni Balistreri, et. al.
- Court and Case Number: San Mateo County Superior Court / CIV 522806
- Date of Verdict or Judgment: Tuesday, January 19, 2016
- Date Action was Filed: Friday, July 12, 2013
- Type of Case: Negligence
- Judge or Arbitrator(s): Gerald J Buchwald
Plaintiffs: Patrick O'Neil
Defendants: Joseph Balistreri
- Type of Result: Bench Verdict
- Gross Verdict or Award: Defense Judgment
- Net Verdict or Award: Defense Judgment
- Trial or Arbitration Time: 5 days trial
- Post Trial Motions & Post-Verdict Settlements: Plaintiff's attorney notes that final judgment has not yet been entered.
Attorney for the Plaintiff:
The Cartwright Law Firm, Inc. by Robert E. Cartwright, Jr. and John Bollier, San Francisco.
Attorney for the Defendant:
Law Office of Katherine R Moore, PC by Katherine R. Moore, Redwood City.
Plaintiff’s Medical Experts: None.
Defendant's Medical Experts: None.
Plaintiff's Technical Experts: None.
Defendant's Technical Experts: None.
Facts and Background
Facts and Background:
The parties stipulated to the damages, waived a jury and tried the issue of liability only. The plaintiff sued the defendant for gunshot wounds after he made an unauthorized entry into the home of the defendant’s elderly parents in the early morning hours of March 25, 2012.
The defendant, his wife, and his 12-year-old child had spent the night at the home of the defendant’s parents after a surprise birthday party for the defendant’s wife the evening before. At approximately 4:20 a.m., the defendant was wakened by the sounds of someone trying to break into the house through the front door. The defendant woke his elderly parents and obtained his father’s .357 magnum.
After plaintiff failed to gain entry through the front door, he scaled a 6-foot locked wooden gate on the side of the house and trespassed around the perimeter of the house before entering through an exterior doorway into the garage on the opposite side. The defendant instructed his wife to call 911 and gathered his wife, mother and child in a room behind him.
From the garage, plaintiff walked through the kitchen to the dining room and was 15 feet away from the defendant when the first shot was fired. Rather than stop, the plaintiff continued advancing on the defendant and closing the distance. The defendant fired two more shots before plaintiff fell to the floor.
Plaintiff had spent the evening consuming at least 12 alcoholic drinks with friends including tequila cocktails, Jager bombs, beer and other mixed drinks. He was unable to get out of the car after the night of partying and was left in a parked car in front of his friend’s house.
Defendant’s homeowner’s carrier refused to indemnify and defend on the basis this was an intentional act.
Plaintiff claimed he mistook the defendant’s parents’ home for his friend's home 3 houses away on the same side of the street though the two houses looked nothing alike. He claimed the defendant was negligent in failing to figure out that he was simply drunk and that he meant no harm to defendant or his family. He further claimed that defendant used excessive force in failing to fire a warning shot or aim for the lower part of the body.
That defendant was in fear of his life and those of his family. That he acted in self defense and was inside his parents' home.
Injuries and Other Damages
Physical Injuries claimed by Plaintiff:
Gunshot wounds to the shoulder, biceps and chest; coma; comminuted fracture to the left clavicle resulting in bone spur; fracture of the left anterior 2nd rib; comminuted fractures of the left lateral 6yh, 7th, 8th, and 9th ribs; severed/lacerated brachial artery; left upper extremity nerve injury/median nerve dysfunction; punctured lung causing bilateral hemopneumothoraces; bilateral lung contusions; acute respiratory failure; severe never damage; and deep vein thrombosis
- Special Damages Claimed - Past Medical: $512,905.93
- Special Damages Claimed - Future Medical: None.
- Special Damages Claimed - Past Lost Earnings: $62,640