49ers Player Defends Party Shooting Lawsuit

Posted October 3, 2013 in Personal Injury by

Aldon Smith, a linebacker for the San Francisco 49ers, is defending a lawsuit brought by a man shot at a party at the player’s home last summer by arguing that the man should have known that’s what he’d get at Smith’s party.


One Way to End a Party

Ronndale Esporlas paid his $10 cover (and $5 per drink) to get into Smith’s party at the player’s San Jose, Calif. home in June 2012, according to the complaint.

Once Smith and Delanie Walker, a former 49er who now plays for the Tennessee Titans, were ready for everyone to go home, claims Esporlas, they drunkenly appeared on the balcony with illegally-possessed handguns and started firing them in the air.

Walker, who is also named as a defendant in the suit, then came down to the driveway and started firing into the crowd. More gunfire broke out in response, and Esporlas and his friends were caught in the crossfire. Esporlas was shot twice in the leg and says he sustained “serious, catastrophic and permanent injuries.”

Other gunshot victims, as well as one man who was stabbed, were taken to the hospital, according to a news story. The stabbed man turned out to be Smith.

Esporlas on Sept. 3 sued Smith, Walker and 100 unnamed defendants – presumably the other gun-toting partygoers – for premises liability, negligence, and an intentional tort of firing guns into crowds of people. His lawsuit does not say how much money he wants.


Transferred Intent

While Esporlas has a good chance with his negligence case, the intentional tort presents more of a challenge, says personal injury lawyer Michael Grossman of the Grossman Law Offices in Dallas. That’s because it’s unclear who actually shot the plaintiff.

Attorney Michael Grossman headshot

Michael Grossman

“If the facts and circumstances described in the complaint are even partially true, then I don’t think there is even a question as to whether or not the defendants are negligent,” Grossman says. “Clearly that would be the case.”

“Where things get tricky is that the plaintiff alleges the intentional tort occurred when he was struck by rounds fired ‘by Delanie Walker, or rounds fired directly in response to the rounds fired by Defendants,’” Grossman notes.

“If either named defendant had willfully aimed at the plaintiff and fired, it would be easy to conclude that said defendant had committed an intentional tort. But since it is unknown whose bullet(s) struck the plaintiff, a new question emerges: can a person who intentionally fires a gun at a target be said to have intentionally caused the injury of a third party when the target returns fire and injures the third party?”

If you fire a gun at someone and they return fire and shoot an innocent bystander, are you legally responsible for the bystander’s injuries even if you didn’t shoot him yourself?


If You Roll with Gangsters . . .

Then there’s Smith’s answer to the lawsuit, which presents a disturbing twist on the common defense of “assumption of risk.” Smith is saying that by attending a party at his house, where apparently gunfire had occurred in the past, Esporlas assumed the risk of being injured in a crossfire of bullets: You should have known something like that could happen because I am basically a gangster and everyone knows it, is what Smith appears to be arguing.

If Esporlas had participated in the shoot out, Grossman believes Smith’s argument might hold up. But if Esporlas really was an innocent bystander as his suit alleges, the linebacker may have made a critical error.

If that really is Smith’s argument, Grossman says it may “prove to be a poison pill” because California case law puts a higher duty on a property owner who has a “heightened” level of foreseeability.

“By arguing that the plaintiff assumed risk by attending an event for which he knew there may be a dangerous condition present due to past expressions of violence, the defendants may inadvertently acknowledge that they too were aware that such conditions existed and they may impose a higher duty of care on themselves in doing so,” he says.



Grossman calls Smith’s attempt to use assumption of risk in this case “patently absurd” and says he thinks most juries would agree.

“Just imagine what a jury’s reaction would be if any major retail chain was to defend themselves against a slip and fall case on the basis that ‘Our stores are always so slippery and everyone knows it, so it’s really the customer’s own fault if they slip while shopping in our store.’”

“I think we could all agree that such a defense strategy would run afoul of a jury’s understanding of expectations and responsibilities,” Grossman concludes. “Replace ‘retail store’ with ‘rich athlete’ and ‘slippery floor’ with ‘gunfight’ and, in my estimation, the sentiment remains the same.”

Smith’s legal troubles continue to mount. He was arrested by San Jose police for DUI and marijuana possession on Sept. 20 following a head-on collision with a tree. He played in the 49ers Sept. 22 game against the Indianapolis Colts before reportedly entering a treatment facility for alcohol abuse. The team has placed him on indefinite leave.

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