As If One Has To Ask...
So a guy breaks into your home while you and your family are sleeping and after ignoring your instructions to leave, he heads toward the part of the house where your children are sleeping. What do you do?
In this particular example, the homeowner perforated the backside of the goblin, sending him to the hospital, and subsequently, prison.
So, naturally, the goblin sued the guy.
Prochaska sued for damages, simultaneously claiming:
-- Negligence: With badly shaking hands, Rainiero “negligently fired a shot and accidentally hit the plaintiff.”
-- Assault and battery: Prochaska agreed that the defendant, confronted by a burglar, had the right to use force to protect himself, his family and his property. But Prochaska contended that the defendant’s use of a gun was excessive force.
"Accidentally" hitting the plaintiff? Well, that's one way of looking at it, I suppose. And, it's possible that's what the homeowner told the police, so as to avoid being labeled as the aggressor by an over-zealous D.A.'s office.
I give the guy bonus points for scoring a hit on the target in less than optimal shooting conditions and under considerable duress.
But, here's the best part of the story. From the judge who
“There is no doubt that the jury would find for the defendant,” Judge James Welker wrote in his memorandum decision. “In fact, it is likely that the jury would prefer the option of throwing the plaintiff down the steps of the courthouse.”
But, wait, it gets better.
On the negligence claim, a jury would have to weigh Prochaska’s negligence against Rainiero’s, Welker wrote.
Prochaska’s negligence consisted of crawling into a house in the middle of the night with intent to commit a felony and “with the knowledge that startled and confused homeowners may take some action to protect themselves, their families and their property,” Welker wrote, adding:
“Certainly he could not expect that the startled homeowner confronted at night by an intruder will calmly ask the burglar to sit down at the kitchen table, drink a cup of herbal tea and join in a chorus of ‘Kum Bay Yah.’”
Judge Welker should start a blog. The guy's got chops.