At around 4:20 a.m. on March 25, 2012, plaintiff Patrick O’Neil, 24, a loss prevention agent, was intoxicated when he mistook the house of Joseph Balistreri’s parents for O’Neil’s friend’s house, which was three houses away, on the same side of the street, in Foster City. O’Neil had been out drinking with his friends. He consumed at least 12 alcoholic drinks, including tequila cocktails, Jager bombs, beer, and other mixed drinks. After the night of partying, O’Neil was unable, or refused, to get out of his friend’s car and was left in the parked vehicle in front of his friend’s house. The friend, a 19-year-old designated driver, could not physically move O’Neil, parked the car in front of his house, and told O’Neil to come in when he was ready. Despite having been to the friend’s house on at least 30 prior occasions, O’Neil was so intoxicated that he somehow ended up at Balistreri’s parents’ house, located three doors down. Balistreri was staying at his elderly parents’ house with his his wife and 12-year-old son when he awoke to the sounds of someone trying to get in the front door. Balistreri believed that someone was trying to break into the house, so he woke up his parents and obtained his father’s .357 Magnum handgun. When O’Neil failed to gain entry through the front door, he climbed a 6-foot, locked, wooden gate on the side of the house. He then trespassed around the perimeter of the house, before entering through an exterior doorway into the garage on the opposite side. Balistreri held the gun while his father had a butcher knife. Balistreri then gathered his family in a room behind him, and he instructed his wife to call 911. From the garage, O’Neil walked through the kitchen to the dining room, at which point he was 15 feet away from Balistreri, who warned O’Neil that he was armed with a gun. O’Neil allegedly did not acknowledge the warning in anyway, but, instead, continued to silently advance toward Balistreri and his family. As a result, Balistreri fired the first gunshot. Rather than stop, O’Neil continued walking toward Balistreri, who fired two more shots. O’Neil then fell to the floor. O’Neil survived, but he suffered from gunshot wounds to his chest, and left arm and shoulder. Police silently arrived just moments before the shooting. The District Attorney’s Office filed no charges against Balistreri, and Balistreri’s parents chose not to press charges for trespass against O’Neil. O’Neil sued Balistreri’s parents, Giovanni Balistreri and Josephine Balistreri. Joseph Balistreri was later added as a defendant. O’Neil alleged that Joseph Balistreri was negligent for the shooting and that and Giovanni Balistreri and Josephine Balistreri were negligent for failing to prevent the shooting. The parents were ultimately dismissed from the case on a motion for summary judgment. State Farm General Insurance Co. refused to defend or indemnity Joseph Balistreri under his homeowner’s policy or his parents’ homeowner’s policy upon the basis that the incident involved an intentional act. The parties stipulated to damages and waived a jury trial. Thus, the matter proceeded to a bench trial on the issue of liability against Joseph Balistreri only. Plaintiff’s counsel contended that Joseph Balistreri was negligent for failing to figure out that O’Neil was simply drunk and that O’Neil meant no harm to Balistreri or his family. Counsel also contended that Balistreri should have locked his family inside an interior room and waited for the police to arrive and that Balistreri used excessive force in failing to fire a warning shot or aim for the lower part of the body. Defense counsel argued that the two houses looked nothing alike and that Balistreri was in fear of his life and those of his family. Counsel also argued that Balistreri acted in self-defense and was inside his parents’ home., The parties stipulated to damages, so the issue of damages was not before the court. O’Neil sustained gunshot wounds to the chest, and left shoulder and biceps. As a result, he sustained a comminuted fracture of the left clavicle, resulting in a bone spur. He also sustained a fracture of the left, anterior, second rib; comminuted fractures of the left, lateral sixth, seventh, eighth, and ninth ribs; a severed/lacerated brachial artery; a punctured lung, causing bilateral hemopneumothoraxes; and bilateral lung contusions. As a result, he suffered acute respiratory failure. O’Neil was subsequently treated at the scene before being taken to Stanford Hospital, in Stanford. O’Neil claimed that as a result of his , he suffered from a nerve injury/median nerve dysfunction to the left, upper extremity; severe nerve damage; and deep vein thrombosis. He was off of work for 26 months, but he ultimately made a good recovery and returned to gainful employment. Thus, O’Neil sought recovery of approximately $416,000 in (paid) medical costs and $62,640 in past lost wages. He also sought recovery of damages for his pain and suffering.