Miller v. Kennedy

Roy Miller, plaintiff in the trial court, appeals from a judgment entered on a jury verdict finding defendant/respondent Police Officer Gregory Kennedy (Kennedy) not negligent in accidentally shooting appellant. Appellant does not contend that the verdict is unsupported by the evidence. His sole argument on appeal is prejudicial error by the trial court in giving one jury instruction and failing to give another one. We affirm.

Viewing the evidence in the light most favorable to the judgment (Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 60 [ 148 Cal.Rptr. 596 , 583 P.2d 121 ]), appellant and his friend, Ralph Castellanos, went barhopping during the evening hours of June 2 and early morning hours of June 3, 1983. The last place appellant and Castellanos visited was a bar and disco called Peppers. About 1 a.m., they were asked to leave the bar after appellant harassed some female customers and Castellanos challenged the bartender to a fight for not serving him a drink. While both men were being escorted out of the bar by Peppers’s bouncers, profanities were exchanged and Castellanos stated that he would come back with a gun. Appellant and Castellanos then walked…