A defendant accused of shooting a man in the face while he was sitting in his Bethalto home filed a memorandum of law arguing that there is no cause of action as the plaintiff cannot verify who fired the errant bullet from a field a mile away in Cottage Hills.
According to the complaint filed in April in Madison County, Clifford Spickerman claims he was in his home on the 500 block of Stroheck Lane in July 2011 when his face was allegedly grazed by a bullet from a Mosin Nagant rifle. At the time of the incident, defendants Brent M. Masiero, David M. Chenot, Brandon J. Gibbons and Frankie L. Zarantonello were target shooting in a field at the corner of 80 Street and Walnut Drive in Cottage Hills, which is about a mile from Spickerman’s home.
Spickerman alleges one of the four defendants fired a round from the rifle, which can travel great distances.
The plaintiff accuses the men of negligence for reckless discharge of a firearm without a suitable barrier to prevent bullets from leaving the area.
The defendants claim they are unable to determine who fired the bullet that injured Spickerman, which prevents the plaintiff from having a cause of action.
According to the memorandum of law in reply to the plaintiff’s opposition, Masiero pointed out that the plaintiff admitted that he is also unable to determine who pulled the trigger.
“He therefore attempts to state a cause of action in negligence by alleging that defendant Masiero ‘individually or in connection with others’ recklessly discharged a firearm, or failed to establish that a populated area was within reachable distance of the firearm being discharged, or failed to have a suitable backstop," the memorandum states.
It further counters Spickerman's argument of equal liability for alleged negligent acts that produced a single indivisible injury. Masiero's memorandum states that the defendants must be found negligent before they can be held liable.
Masiero claims in his memorandum that he is never specifically accused of any of the allegations and requests Count I be dismissed.
“Plaintiff fails to allege facts indicating that Masiero himself acted in a tortuous manner,” the memorandum states, “or that Masiero gave substantial assistance to someone acting in a tortuous manner, or that Masiero gave substantial assistance to another in accomplishing a tortuous result.
Spickerman also fails to state allegations indicating the group as a whole acted in accordance with a common plan to commit a tortuous act, the memorandum states.
Spickerman filed an opposition to Masiero’s previous motion to dismiss on July 29 through his attorney Lanny Darr in Alton, requesting the court to deny the motion. Darr argues the motion fails to satisfy the burden of proving “whether the allegations of the complaint, when construed in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief may be granted.”
He further argues that even though he cannot prove who shot the bullet, the entire group is jointly and severally liable because their negligent acts combined to produce the injury.
“’In legal contemplation,’” the opposition states, “’there is a joint enterprise, and a mutual agency, so that the act of one is the act of all, and liability for all that is done is visited upon each.’”
Madison County Chief Judge David Hylla is presiding.
Stephen C. Mudge of Reed, Armstrong, Gorman, Mudge & Morrissey represents Maseiro.
Madison County Circuit Court case number 13-L-534
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