When keeping it real goes wrong

Killon v Parrotta, 2012 NY Slip Op 06095 [3d Dept 2012] [available here]

You can't start a fight, and then claim you were acting in self-defense and therefore not liable for the other guy's injuries. Case in point, from the Third Department, is Killon v Parrotta. The defendant in Parrotta allegedly beat the plaintiff with a baseball bat, and when sued for battery claimed that he only did so in self-defense.

Small problem: the defendant admitted that he was "upset and angry when he received two threatening phone calls from plaintiff shortly after midnight," hopped in his pick-up truck, drove to the plaintiff's house "with the intention of settling their ongoing dispute 'man to man,'" parked his truck in the plaintiff's driveway with the headlights "shining on plaintiff's front door," and got out to confront the plaintiff.

The plaintiff armed himself with a "maul handle," so the defendant retrieved a baseball bat from his truck. Undeterred, the defendant escalated things further by walking towards the house. The plaintiff "yelled to his chained dog to 'sic'(#1) defendant as he approached the house," but defendant (in his one half-way clever act that night) simply "skirted the limited range of the dog's chain and continued to advance on the porch with the bat in his hand as each man yelled taunts and challenges at the other." (Killon, *2.) The Third Department explains what happened next:

When defendant reached the porch steps and was almost face to face with plaintiff, more angry words were exchanged and defendant again challenged plaintiff to drop his weapon and come down from the porch for a fist fight. Instead, plaintiff remained on his porch, told defendant to get off his property and swung the maul handle. In response, defendant struck plaintiff with the bat.

(Id.)

A jury found that the defendant acted in self-defense. The Third Department reversed, first noting that the "defense of justification is not available to the initial aggressor," and concluding that "there is no dispute that defendant drove to plaintiff's home and then advanced on plaintiff's front porch with a bat in his hand demanding a fist fight." (Id. at 2-3.) On those facts, the Court concluded that "the jury's conclusion that defendant was not the first to threaten the immediate use of physical force is unreachable on any fair interpretation of the evidence." (Id..)

It is interesting to note that this was a civil case for damages. If the defendant had been convicted of assault for beating the plaintiff, there would have been no need for a trial; the result from the criminal case would have simply been carried over to the civil side, as the criminal courts hew to a much greater standard of proof and defendant would have been prevented from re-litigating the liability question in civil court. That means the defendant was not prosecuted at all, or if he was, that the jury in the criminal case bought the self-defense argument.

#1 It is unclear whether the correct spelling is "sic", or "sick," but I am guessing the Third Department just punted rather than going with "sic (sic)" for the quote from the record. One thing is clear: if you are going to sic or sick your dog on an intruder, make sure the mutt is unleashed.