Widow sues homeowner in husband's death

Buffalo News ^ | January 15, 2011 | Dan Herbeck

[seton89]

The widow of David W. Park, an Albany teacher who was shot and killed as an intruder in an Amherst home, has filed a wrongful death lawsuit against the homeowner who pulled the trigger.
The lawsuit accuses David D'Amico of the "willful, intentional, malicious" slaying of Park, and acting "without just cause [or] provocation."
Deanna Ripstein, Park's widow, filed the State Supreme Court lawsuit eight months after an Erie County grand jury -- following an extensive Amherst Police investigation -- decided not to file criminal charges against D'Amico.

[ltc8k6]

Well, he came in the back door...at 10PM

That’s enough right there...

[kcvl]

I read somewhere that he had a sleepwalking problem.

[csense]

Somebody too drunk to know where he was or that he was in the wrong house would be pretty hard to view as dangerous.

But you have the advantage of knowing he was intoxicated through a formal investigation, after the fact. The home owner had no such advantage. Keep that in mind while you judge this man...

[OrangeHoof]

Park, who was intoxicated, according to prosecutors, had gone into D'Amico's home after leaving a party next door.

Although no criminal charges were filed, attorneys for the Park family allege under civil law that D'Amico was negligent and acted wrongfully by killing Park.

"[The incident] occurred as a result of the fault, negligence and carelessness of D'Amico, without any negligence on the part of Park contributing thereto," attorney David H. Elibol said in court papers.

Had Mr. Park gotten behind the wheel and killed somebody on his way home, he'd have been guilty of negligence because he was drunk. So, why is he not negligent when he drunkenly enters someone's home and refuses to leave when ordered?

Your honor, move to dismiss...

[peeps36]

If a noise woke me up at 1:30am and I found an intruder coming toward my bedroom, I wouldn't be thinking he's a lost drunk. I would be thinking about protecting my family from a criminal who wanted to do us harm.

[paul51]

someone over twice the legal limit is not borderline

[ryderann]

“Somebody too drunk to know where he was or that he was in the wrong house would be pretty hard to view as dangerous.”

My former husband was a mean, violent drunk no matter whose house he was in, somebody was going to catch hell.

[Neanderthal]

How's this for a theory? Park was drunk and for some reason went out the back door and into the back yard to take a leak. It was dark and he was drunk, so he headed back into the neighbor's house by mistake instead of the one he had just exited.

Usually there are no fences to separate the back yards of houses in the Buffalo suburbs, so this really is plausible. This theory does not explain what happened after he got into the wrong house, just how he did get into the wrong house.

[sargon]

In Texas, there would be no case.

There won't be any case in any other state of the USA, either. This reeking bullshit of a case will be tossed out sooner or later, or the jury will award 1 penny as a judgment against the defendant, just to illustrate the absurdity of the complaint...

[cydcharisse]

Don’t shoot, I’m an award winning elementary school teacher.

[muawiyah]

We did have a thread on a case like that and the homeowner was being booked on murder or something. I don’t know what finally happened there ~ maybe somebody knows.

[muawiyah]

So, you are awakened at 1:30 AM and your elderly mother has gotten confused and begun wandering around the house. So, to protect yourself and your mother you shoot the intruder in the hallway bathroom.

Then you turn on the light.

There will be questions and they'll start right away as the EMT's haul away your mother's body.

This will happen in every state ~ even Texas.

[muawiyah]

I would presume you would make sure you locked your doors so a passing bear or a drunk neighbor didn't accidentally come in your otherwise "identical to thousands" home.

We have to remember, the bears have learned how to open doors and they do so. They go from house to house until they find an open one and then they go inside.

[muawiyah]

THE DOOR WAS OPEN!

[Celtic Conservative]

Somebody too drunk to know where he was or that he was in the wrong house would be pretty hard to view as dangerous.

Not entirely germane. The legal standard is the homeowners "reasonable perception of danger". If the homeowner reasonably believes he is in danger and can articulate that perception to the satisfaction of the court, his actions will constitute lawful killing in self defense. That is what happened in this case. It doesn't matter what you or I think or feel about this case, only the homeowners perceptions and actions.

CC

[SIDENET]

SUE DARWIN.

[CAluvdubya]

THE DOOR WAS OPEN!

[CAluvdubya]

Rest of my post got messed up....should have been:

So what if the homeowners left their door unlocked. If you leave your keys in your car by mistake, is it still a crime if someone steals it? Yep.

[muawiyah]

Is it still a crime actionable in court if somebody steps in and takes your car?

Well, of course, but around here it's a crime to leave your keys in your car where a young child might take off with it and get hurt.

In almost every jurisdiction in the country if you leave your keys in your car and a child does take the car and get hurt your insurance company will help you out with the civil suit but not to the extent you imagined.

What we have here is a guy left his door open and shot the first person to come through the door. It may well have been a legal act but I wouldn't let the guy oversee my cash register!

[Graybeard58]

In Texas, there would be no case.

This is a civil suit, not criminal. Don't they have dumb ass civil suit lawyers in Texas too?