Katherine R. Moore, of the Law Office of Katherine R. Moore obtained a defense judgment on January 19, 2016 after a 5 day court trial in favor of her client in a personal injury action in San Mateo County. 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. 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 4:20a.m., the defendant was awoken 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 the plaintiff failed to gain entry through the front door, he scaled a 6’ 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. In fear for their lives, the defendant instructed his wife to call 911 and gathered his wife, mother and child in a room behind him. From the garage, the plaintiff walked through the kitchen to the dining room and was 15’ 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 the plaintiff fell to the floor.
The plaintiff had spent the evening consuming at least 12 alcoholic drinks with friends including tequila cocktails, Jaeger 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. He claimed he mistook the defendant’s parents’ home for his friends home 3 houses away on the same side of the street though the two houses look 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 he or his family. He further claimed the defendant used excessive force in failing to fire a warning shot or aim for the lower part of the body.
The defendant’s homeowner’s carrier refused to indemnify and defend on the basis this was an intentional act.