Barth v. Massa

558 N.E.2d 528, 201 Ill. App. 3d 19, 146 Ill. Dec. 565, 1990 Ill. App. LEXIS 1063
CourtAppellate Court of Illinois
DecidedJuly 17, 1990
Docket5-88-0185
StatusPublished
Cited by31 cases

This text of 558 N.E.2d 528 (Barth v. Massa) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barth v. Massa, 558 N.E.2d 528, 201 Ill. App. 3d 19, 146 Ill. Dec. 565, 1990 Ill. App. LEXIS 1063 (Ill. Ct. App. 1990).

Opinion

JUSTICE CHAPMAN

delivered the opinion of the court:

On October 3, 1981, plaintiff Robert C. Barth, a Fairview Heights police officer, was shot and wounded in the right leg after responding to a burglary alarm at a sporting goods store. A little more than one year later defendant Michael Lee Massa, who was 15 years old at the time of the incident, confessed to the shooting.

Plaintiff filed suit seeking recovery for his injuries, and his third amended complaint named Michael’s parents, Maynard and Sara Massa, as defendants in count I, while counts II and III were directed against Michael for negligence and willful and wanton misconduct. At the close of plaintiff’s case, defendants Maynard and Sara Massa’s motion for a directed verdict was denied, as was a subsequent motion made at the close of all the evidence. The court did, however, enter a directed verdict in favor of the plaintiff against Michael Massa on counts II and III of the complaint after presentation of the defendants’ evidence. The jury returned a general verdict in favor of the plaintiff and against all three defendants in the amount of $130,000. The defendants’ post-trial motions were denied and they now appeal. For the reasons stated below, we reverse the judgment against the defendants Maynard and Sara Massa and affirm the judgment against defendant Michael Massa.

The testimony at trial established that the plaintiff responded to a burglar alarm at a sporting goods store at approximately 9:30 p.m. Sergeant Prindable, a fellow officer of the Fairview Heights police department, arrived on the scene at about the same time as the plaintiff. The officers observed a hole knocked through concrete blocks in the back wall of the store. The officers then heard a crashing noise coming from the front of the store and ran along opposite sides of the store toward the front. Plaintiff observed two figures running westbound and ordered them to halt. Plaintiff testified that one of them turned, lowered a gun over his left arm, and fired at plaintiff; plaintiff then fired one shot in return. The suspect, subsequently identified as defendant Michael Massa, fired a second shot which struck plaintiff in the leg. Plaintiff fell to the ground and heard, but did not see, a third shot. Sergeant Prindable testified that he heard the shots as he came around the side of the building and, upon seeing the plaintiff on the ground, fired six shots at the fleeing suspects, but both escaped.

Michael Massa testified that the gun used in the shooting was a Browning .9 millimeter handgun. Michael had purchased the gun, along with a shotgun and four rifles, one to two weeks before the shooting from a friend named Jeffrey Robb. The guns had been stolen, and Michael was aware of that fact when he bought them. Michael paid for the guns by withdrawing some money from his savings account — “maybe $100” — as a down payment and he paid the balance in installments from money he earned by working for his father as a veterinary assistant. Michael testified that he never told his parents about the stolen guns, and that he kept them hidden in the house. He stated that he never took the stolen guns out to show anyone, and to the best of his knowledge, his parents never knew that he had them.

Michael admitted that he and another boy broke into the sporting goods store to steal ammunition and other items. When the police arrived the boys ran out of the store through a front window and began running down the highway. Michael testified that as they were running away one of the officers fired at them and after the second or third shot he “jerked and the gun starting firing.” Michael also stated that he did not aim his gun at the plaintiff and he did not intend to shoot him.

Additional testimony by Michael and other witnesses established that prior to October 3, 1981, Michael owned three pellet or BB guns with his parents’ knowledge and permission. These included a C02 pellet revolver, a .177 caliber BB pistol, and a .22 caliber pellet-type air rifle. Pellets could not be fired out of the air rifle because the bolt was damaged. Michael also stated that he did not have C02 cartridges for the pellet revolver. Michael further testified that he possessed a firearm owner’s identification (FOID) card. He obtained the card so that he could go hunting with his father at his grandfather’s farm. His grandfather owned a 12-gauge shotgun, a pump rifle, and a bolt-action rifle which Michael would be permitted to use while hunting with adults. Michael also testified that he was a member of a target shooting club as well as a member of the National Rifle Association.

Several witnesses testified concerning an incident involving Michael and another boy, Paul Black, shooting BB’s or pellets at a group of boys from Michael’s backyard. Kathy Rosen testified that she went to the Massa home sometime in September 1981 and questioned Michael about an incident in which some of the neighborhood children, including Rosen’s two sons, were shot at by a pellet gun. She stated that Michael told her he was shooting at birds. Mrs. Rosen further testified that Sara Massa came to her home later that day to discuss the incident, and Rosen told Sara that the children had indicated that Michael had been shooting at them.

Robert Hansen, a former Fairview Heights policeman, testified that he received a report on September 22, 1981, of children being shot at with a pellet or BB gun. Eric Nystrom had reported that he had been struck in the thigh by a BB fired by Paul Black, who was with Michael in the Massa’s yard. Hansen spoke to Michael and his mother at their house, and Michael stated that he and Black were shooting at the trees and they were not aware that anyone had been hit by the BB’s. Hansen stated that he told Sara Massa that the matter would be referred to the youth services coordinator. Hansen also testified, over objection, that he told Sara that Eric Nystrom’s father had indicated that this was not the first such occurrence.

Bob Fendwald, youth counselor for the Fairview Heights police department, testified that he received a referral from Officer Hansen regarding Michael Massa in September of 1981. Fendwald testified that he spoke to Sara Massa on the telephone and informed her that counseling services were available, and that it appeared that this was not the first time that such a shooting incident had occurred. He stated that Mrs. Massa was told to call back if she desired counseling for Michael, but she did not do so.

Sara Massa testified that she recalled the visit from Officer Hansen in 1981, and that she talked to Kathy Rosen and Eric Nystrom’s father concerning the shooting incident on the same day. She denied, however, that anyone had ever suggested that her son needed counseling. Sara stated that she did not take Michael’s pellet rifle away from him following the incident because she knew that it did not work. Sara further testified that she was unaware that Michael had any rifles or other firearms in his possession at any time prior to his arrest.

Maynard Massa, Michael’s father, testified that he was aware of Michael’s interest in guns, but he was not aware of the presence of the stolen guns in his home until Michael was arrested for shooting Officer Barth. Maynard also testified that on occasion his father’s rifles and shotguns would be stored in his house after a hunting trip.

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Cite This Page — Counsel Stack

Bluebook (online)
558 N.E.2d 528, 201 Ill. App. 3d 19, 146 Ill. Dec. 565, 1990 Ill. App. LEXIS 1063, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barth-v-massa-illappct-1990.