383 S.E.2d 381 (N.C. Ct. App. 1989)
PROCEDURAL HISTORY: Plaintiff estate administrator appealed from the decision of the court (North Carolina), which entered a final judgment denying any recovery on a wrongful death action against defendant shooter.
-The estate administrator sought to recover against the shooter of the decedent.
-The superior court denied recovery and the administrator appealed.
FACTS:-D shot and killed "Young" in close range into his back.
-D pled guilty to involuntary manslaughter.
-Prior to shooting, Young was with girlfriend (D's daughter).
-When young reached daughter's home, Young threw wood at glass, broke in, and argued with daughter, jerking her arm.
-D arrived with shotgun and shot Young.
-Neighbor heard what was going on, heard screaming and saw young standing inside the door.
-D claimed that he prodded Young with the gun, told him to get out, and then the gun went off.
-The determinative issue was whether the superior court erred in submitting the defense of family issue to the jury.
The court held that procedurally, no grounds existed for placing the issue before the jury where the shooter had not pleaded defense of family as an affirmative defense. Additionally, the record contained no evidence that the shooter reasonably believed that his daughter was, at the time of the shooting of the decedent, in peril of death or serious bodily harm. Therefore, the court ordered a new trial.
CONCLUSION: The court reversed the decision of the superior court, which entered a final judgment denying the administrator any recovery on his wrongful death action against the shooter, and ordered a new trial.
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