Mb civil suit rulings 11/15/2022

[lazaret]

Wrongful death doesn’t have the same prongs of substantiation that negligence has.

Negligence is a dereliction of duty. If there is no duty, there cannot be a dereliction.

By asking her to leave, he well may have met his standard to take reasonable measures to avoid her injury. By choosing not to leave, she may well have waived his duty to her.

A duty is not presumed to exist nor does it survive any and all attempts to circumvent it.

Let us use a real life example. Two individuals get into a verbal confrontation over the perceived driving skills of one of the individuals. They speak verbally and one of the individuals repeatedly moves away from the other individual. At a point in the confrontation, one individual slaps an object out of the hand of the other individual (the individual who had been moving away from him). The slapped individual immediately punches the slapper in the jaw, the punched person strikes their head on the pavement and sustains a brain injury that leads to their permanent incapacitation.

The person who punched had a duty not to injure the other individual until the moment that the individual struck him. At that point, the duty to that person ended by the actions of the person who ended up injured. The injured party knew that their action could incite the reaction from the striker.

A jury held that the striker was not liable for the injury to the other individual because he did not have a duty to breach at the moment he struck him, and a breach of duty is required for a negligence claim.

[hut-ho78]

@eggbutt

It has not been proven beyond a reasonable doubt that Michael Barisone shot anyone.

That really is the definition of NGRI, that the prosecutor met the burden of proof beyond a reasonable doubt, the highest standard, that the defendant committed the Act that otherwise would be a crime except the defense proved by a Preponderance of Evidence that MB was insane at the time.

In the civil trial, if the criminal trial results don’t stand, then the burden of proof that he shot her is the preponderance of evidence.

[hut-ho78]

@Sdel

@eggbutt

It has not been proven beyond a reasonable doubt that Michael Barisone shot anyone.

No it hasn’t. And nothing about the verdicts indicates that they felt Michael was responsible for anything. In fact, the expert testimony they relied on was exclusively about how LK mentally terrorized MB.

It was that MB suffered from a delusion that LK was dangerous and out to get him.

[CurrentlyHorseless]

@lazaret

Wrongful death doesn’t have the same prongs of substantiation that negligence has.

Negligence is a dereliction of duty. If there is no duty, there cannot be a dereliction.

By asking her to leave, he well may have met his standard to take reasonable measures to avoid her injury. By choosing not to leave, she may well have waived his duty to her.

Is she suing him for negligence?

Re bolded: If he had explicitly warned her on Aug 5th that if she was still there after noon on Aug 7th, he would or might then shoot her, and she nevertheless stayed beyond noon on Aug 7, by staying would she have “waived his duty” not to shoot her?

That sounds absurd.

[hut-ho78]

@lazaret

Wrongful death doesn’t have the same prongs of substantiation that negligence has.

Negligence is a dereliction of duty. If there is no duty, there cannot be a dereliction.

By asking her to leave, he well may have met his standard to take reasonable measures to avoid her injury. By choosing not to leave, she may well have waived his duty to her.

A duty is not presumed to exist nor does it survive any and all attempts to circumvent it.

Let us use a real life example. Two individuals get into a verbal confrontation over the perceived driving skills of one of the individuals. They speak verbally and one of the individuals repeatedly moves away from the other individual. At a point in the confrontation, one individual slaps an object out of the hand of the other individual (the individual who had been moving away from him). The slapped individual immediately punches the slapper in the jaw, the punched person strikes their head on the pavement and sustains a brain injury that leads to their permanent incapacitation.

The person who punched had a duty not to injure the other individual until the moment that the individual struck him. At that point, the duty to that person ended by the actions of the person who ended up injured. The injured party knew that their action could incite the reaction from the striker.

A jury held that the striker was not liable for the injury to the other individual because he did not have a duty to breach at the moment he struck him, and a breach of duty is required for a negligence claim.

That is quite a stretch. There was no evidence of self defense presented at trial. MB was known to have control of the gun. He told his mental health expert witnesses he retrieved and toted the gun to the scene (hearsay per the judge’s instructions).

[hut-ho78]

What has not been proven beyond a reasonable doubt is that recordings were illegal or were distributed illegally.

That will be interesting.

[hut-ho78]

@Sdel if the jury wanted nullification, they might have just as well declared MB NG on every count. That they did not speaks to their following the judge’s instructions.

[lazaret]

I don’t have the time today to explain the entirety of a torts course in the space of a few paragraphs. Suffice it to say that the understanding of duty conveyed here is still wrong but regardless, there’s still 3 other standards that have to be met.

Real law isn’t like it is on Law and Order.

[Sdel]

If we are throwing the jury instructions out of consideration, then it is possible they simply wanted to make sure he got a mental health evaluation.

How do you account for the fact that he was found straight up NG for RG as opposed to NGRI on those charges as well?

[Warmblood1]

It wouldn’t matter if you spent hours explaining law accurately. Your comments would still be quoted but entirely misconstrued by CH.

On a different note, what some people fail to understand is that just because self defense wasn’t approached in the criminal trial, does not mean it won’t be in the civil trial. Mb’s legal team has already referenced self defense for the civil case.

[Sdel]

@hut-ho78

@Sdel

@eggbutt

It has not been proven beyond a reasonable doubt that Michael Barisone shot anyone.

No it hasn’t. And nothing about the verdicts indicates that they felt Michael was responsible for anything. In fact, the expert testimony they relied on was exclusively about how LK mentally terrorized MB.

It was that MB suffered from a delusion that LK was dangerous and out to get him.

You forget that the state expert agreed that her SM posts did contain coded messages and were designed to scare him. And that she also admitted during her testimony to the same….”the queen must be sacrificed”….and all. And he testified that a reasonable person would be justified in being afraid of that behavior.

[lazaret]

technically, self defense was approached in the criminal trial. The defense raised the two affirmative defenses and cited the statute that says they must be tried together. Since most of their evidence was excluded for various reasons, the outcome leaned in the mental health direction. But both were raised, the only change in position I see so far is that they added the counterclaim for illegal recording which was permitted in the leave to amend.

[CurrentlyHorseless]

@Warmblood1

It wouldn’t matter if you spent hours explaining law accurately. Your comments would still be quoted but entirely misconstrued by CH.

On a different note, what some people fail to understand is that just because self defense wasn’t approached in the criminal trial, does not mean it won’t be in the civil trial. Mb’s legal team has already referenced self defense for the civil case.

I understand and agree with Lazaret’s statement that Barisone’s countersuit regarding the recordings is not a defense against LKs suit against MB tor shooting her.

I was shocked by Lazaret’s statement that by staying after MB asked her to leave, LK may have waived MBs duty to her to refrain from shooting her. I doubt that Tarshis counseled Barisone that having notified her on Aug 5 that they wanted her out, that MB no longer had “a duty to refrain from shooting her” with a hand gun.

Self defense was one of the pleas in the criminal trial. It did not go anywhere in the criminal trial because the defense provided no evidence of self defense. The defense is asserting both insanity and self defense in the civil trial, just as they did in the criminal trial.

[CurrentlyHorseless]

@lazaret

technically, self defense was approached in the criminal trial. The defense raised the two affirmative defenses and cited the statute that says they must be tried together. Since most of their evidence was excluded for various reasons, the outcome leaned in the mental health direction. But both were raised, the only change in position I see so far is that they added the counterclaim for illegal recording which was permitted in the leave to amend.

What evidence of self defense “was excluded”?

[Knights_Mom]

@CurrentlyHorseless

Self defense was one of the pleas in the criminal trial. It did not go anywhere in the criminal trial because the defense provided no evidence of self defense.

MB could not aid in that defense solely because he had no recollection of the event. Had he remembered what happened self defense would have been admittable without being a bar to insanity.

[Warmblood1]

@CurrentlyHorseless

I was shocked by Lazaret’s statement that by staying after MB asked her to leave, LK may have waived MBs duty to her to refrain from shooting her.

You and I both know Lazaret never stated this. You just continue to have no problem misconstruing someone’s words even though you’ve been asked to stop.

You really are not being as clever as you think you are with your posts.

[Jealoushe]

@Knights_Mom

You would think trauma plays a role. I was told the emotional trauma was not mine legally but rather my dad’s accounting for how long he suffered. Nice, huh?

That’s awful. Your trauma is certainly valid. I just lost my grandmother and can understand how stressful and scary those times are.

[Scribbler]

All I’ll add is that it’s going to be hard to prove decline in the psychological or trauma related quality of life for a plaintiff who is a 40 year old opiate addict with a history of behavior that suggests borderline personality disorder or worse, if there isn’t a clear physical disability.

[CurrentlyHorseless]

@lazaret

By asking her to leave, he well may have met his standard to take reasonable measures to avoid her injury. By choosing not to leave, she may well have waived his duty to her.

@Warmblood1

Here is the exact wording from @lazaret.

I found this shocking, but it’s what Lazaret said.

[Warmblood1]

LK held several mental health diagnoses prior to her encounter with MB, those being much more severe in nature than MB’s depression, yet MB’s depression is constantly harped upon and presented as an indication that MB would lose sanity despite LK. Not realistic at all.

What I also find interesting is that the Mustache’s testimony states that MB was not delusional because MB’s fearfulness of LK was a rational response. Even if the mental health diagnosis for MB was conflicting amongst experts, the experts acknowledge LK’s campaign against him and why that would provoke someone in the way MB was provoked. I think this contributes to LK’s own negligence and lack of duty to escape the situation as well as her direct contribution to the escalation of the situation.

I could go play in traffic on the interstate and sue someone for hitting me with their car, but a jury would see that I held responsibility in the event and that my own actions were negligent.