Andino

Andino v. Tamarack Steakhouse & Saloon

Good Law
133 F. App'x 390
United States Court of Appeals for the Ninth CircuitMay 19, 2005No. 03-35106California347 words

Opinion

Lead Opinion

MEMORANDUM **

Plaintiff Julio Andino was shot in the face during an altercation with another *391 patron at Defendant Tamarack Steakhouse and Saloon. Andino sued Tamarack for negligently failing to protect him. Tamarack named the shooter, Jay Curtis Reese, as third-party defendant. After trial, the jury returned a verdict in favor of Andino and, as instructed by the verdict form, apportioned fault among the parties according to their respective degrees of culpability. Specifically, the jury found Andino 1% at fault, Reese 95% at fault and Tamarack 4% at fault. Over Andino’s objection, the district court entered judgment accordingly, limiting the award against Tamarack to 4% of the total damages.

On appeal, Andino challenged the apportionment of fault among the parties. Andino maintained that Oregon Revised Statutes § 18.470, renumbered as § 31.600, did not allow apportionment of the separate fault of intentional tortfeasors. We deferred submission of the case pending a decision in Shin v. Sunriver Preparatory School, No. A114805, which was then on appeal to the Oregon Court of Appeals.

On April 27, 2005, the state court resolved Shin by published opinion. Shin v. Sunriver…

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