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MASSEY, HIGGINBOTHAM, VISE, AND PHILLIPS, P.A.

Hunting Club Lawsuits – Could this happen to you?

by Mike Massey on February 1, 2012

Discussed below are several cases which illustrate the types of issues which have given rise to lawsuits concerning hunting clubs, not just in Mississippi but in other states as well.  Ask yourself if things like this could happen at your club and then take measures to make sure it never does.

Hall v Booth, 423 So. 2d 184 (Ala. 1982) – Boy shot during deer hunt

At issue was the liability of an unincorporated club for the death of a 13 year old boy shot during a deer hunt. The family of the boy sued all the members of the club claiming they failed in their duty to conduct a safe hunt.

Two organized hunts were conducted that day, with some members acting as drivers and others as standers on one of the roads in the woods. During the second hunt, one member sent several hunters down a road with instructions to act as drivers. The drivers testified that they were told nobody else would be on the road. When the signal was given to begin the drive, one of the drivers heard a noise, turned and saw movement. He fired twice at what he thought was a deer. Unfortunately, he killed the 13 year old boy.

In this case, the court dismissed the claims against all of the members except the shooter, holding that the proximate cause was not in the planning of the hunt. “When a hunter fires without identifying his target and shoots another person, that irresponsible act is the proximate cause of injury regardless of some negligence on the part of the victim.” To impose liability for negligence, the “injury must be a natural or probable consequence of the negligent act or omission which an ordinarily prudent person ought reasonably to foresee would result in injury.”

Without getting too deeply into the facts, it appears the club members were very lucky to escape liability. What if the organizer of the hunt had said, “Boys, we’ve got to put some meat in the freezer and I don’t care what you shoot.” What if the shooter had been drinking all afternoon yet they let they let him participate in the hunt? Maybe the court would not have been as lenient with the club members.

Orsner v. George, 252 Cal. App. 2d 660 (Cal. 1967) – Hunter shot during target practice

Decedent was shot by one of two men who were target practicing during a weekend cleanup visit. The men were shooting pistols at “frogs and mudhens” over a pond which adjoined the clubhouse and accidentally shot a man who was out of sight across the pond working on some farm equipment.

Five men were staying at the clubhouse that weekend and all had engaged in some form of target practice at one time or another. All the members of the unincorporated club were sued, some of whom were not even present at the time of the shooting.

The court carefully examined the level of participation and encouragement provided by all the defendants. Ultimately, The court found that the non-shooting members encouraged the shooters or participated in the shooting. Fortunately for those not present, the shooting was held not to be a part of the purposes of the club and the shooters were not “acting within the course and scope of their activities as club members.” It was also held that two members who were sued but were not present at the time of the shooting could not have failed to exercise reasonable care “to control” the shooters since they did not even know about the shooting.. However, another member (who was present), was not dismissed since there was triable issue of fact as to whether he failed to exercise reasonable care to control the activities of the shooters.

The lesson seems clear that all club members should take an active role in stopping activities which are dangerous, careless or in violation of a club’s rules. Not permitting target practice next to the clubhouse is a very common rule. If you see a member sighting his rifle close to your clubhouse after missing a deer during the morning hunt will you put a stop to it? Many club members don’t want to be perceived as trouble-makers or hard to get along with. But it is important that all club members take an active role in the enforcing rules and safety guidelines. As this case demonstrates, you could be found to be a participant in a negligent activity by going along with the activity or encouraging it.

Ermert v. Hartford Insurance Co., 559 So. 2d 467 (La. 1990) – Accidental discharge of a gun

During a work day at an unincorporated duck club, one of the members saw a nutria swimming across a canal outside. He quickly began to load his shotgun but while walking through the clubhouse the gun accidentally discharged striking the plaintiff in the foot. The club had club rules years before, but the men had become good friends and were now in “general agreement” on safety matters, adhering to common sense safety guidelines which all hunters should follow, such as no loaded guns in the camp. The plaintiff sued all the members of the club based on the premise that they were all liable for the actions of one of their members, for failing to adhere to any safety rules, and the fact that the shooter was acting with the tacit approval of the other members.

The Louisiana court held that one member is not liable for the actions of another simply because they are both members of an unincorporated association. Instead, members are personable liable only for tortuous acts which they individually commit, participate in, authorize, assent to or approve. In this case, the various individuals were again fortunate to avoid liability for the actions of the careless member. This case underscores the need to have adequate rules, enforce them and not to get caught up in a careless activity.

Lumbley v. The Ten Point Company, Inc., 556 So. 2d 1026 (Miss. 1989) – Injury due to rotting railing

The wife of a club caretaker was injured when she fell through stairway railing on the premises of an incorporated hunting club. The woman was leaning over a rail to hand something to her husband when the railing gave way, resulting in a fall onto a concrete surface. She suffered broken bones, multiple injuries and a 28-day stay in the hospital. Apparently, there was rotting wood around the nails holding the rail to the posts.

This case is important in that it discusses the three types of status one can have upon the land of another, which in turn determines the duty owed by the landowner. One can be a trespasser, licensee or an invitee. An invitee goes upon the premises of another “in answer to the express or implied invitation of the owner or occupant for their mutual advantage.” A licensee enters another’s land “for his own convenience, pleasure or benefit, pursuant to the license or implied permission of the owner.” Members of a hunting club would appear to fit into the category of either an invitee or licensee most often. Property owner owes a licensee a duty to refrain from willfully or wantonly injuring him. A greater duty is owed to a business invitee, that being “the duty to exercise reasonable care not to enter him.”

In this case, the caretaker’s wife was an invitee, there for the benefit of the club. The key legal issue in determining Ten Point’s liability was “whether Ten Point knew, or in the exercise of reasonable care, should have known, the defective condition of the rail and that it constituted a danger and hazard to persons using the stairway.” Ten Point was able to convince the jury that the rotting was a hidden, latent defect that they could not have discovered in the exercise of reasonable care without dismantling the stairway. A property owner is only liable to an invitee for those hidden or latent defects which are known to the owner in the exercise of reasonable care.

A lesson for hunting clubs is to exercise due care to make sure the premises are reasonably safe, to repair obvious and reasonably obvious problems, to place warning signs where you know dangerous conditions exist. Ask yourself what a reasonable person would do about a given situation and proceed accordingly. This does not mean hunting clubs must keep their premises in perfect condition, only reasonable condition. If a deer stand is about to fall out of a tree, fix it or tear it down before it falls with someone in it. If the bridge across the street is about to collapse, either put a warning sign in front of it or repair it.

Dumas v. Pike County,  642 F. Supp. 131 (S.D. Miss. 1986) – Trespasser or not?

Plaintiff had rented an inter-tube to float the Bogue Chitto Water Park with his friends. They eventually came to a clay embankment where swimmers obviously jumped or dived into the river on a regular basis. The land was privately owned. The plaintiff dove into the river from the embankment, struck his head on the river bottom and was rendered a quadriplegic. There were no warning signs. The land owner argued that the plaintiff was a trespasser, to whom he owed no duty except to refrain from willfully and wantonly injuring him. Court pointed out, however, that the law is not so restrictive because the plaintiff’s status could rise to that of a licensee. A licensee is a person privileged to enter onto the land of another by virtue of the consent or permission of the owner. Significant in this case, consent to enter land can be expressed by acts other than words. The condition of the land can be an indication of that consent. In this case, for instance, a land owner supposedly knew people used the land but had posted no warning signs. Also, there was a well worn foot path leading up the embankment and two earthen platforms for diving. If his status rose to that of a licensee, then the landowner would not have a duty to keep the land in a “safe” condition, but would have a duty to “disclose and concealed, dangerous conditions on the premises of which the possessor has knowledge, and to exercise reasonable care to see that the licensee is aware of the danger.” Under the circumstances, the lower court decided to let the matter proceed to trial against the landowner.

Reed v. Employers Mutual Casualty Company, 741 So.2d 1285 (La. 1999) – Fall from tree stand

Reed, a member of the hunting club, was injured when he fell from a movable tree stand that collapsed beneath him. Reed sued the treasurer of the hunting club who installed the stand and his insurance company for negligence in constructing the stand. The hunting club was unincorporated. The member who made the tree stand was found to be at fault for negligence.

LaBorde v. Scottsdale Insurance Company, 704 So.2d 247 (La. 1997)

A non member guest of a hunting club member was shot and injured by a member of the hunting club who accompanied the guest and his friend. The hunting club was organized as a nonprofit corporation. The guest sued the hunting club to recover for his injuries. The guest and his friend were on their 4-wheeler on their way to pick up the second hunting club member. While approaching the stand to pick up the second member, the member fired his rifle at the 4-wheeler hitting the guest. The second member stated he aimed his gun and thought he was shooting at a hog. The jury found the second member 95% responsible and the hunting club 5% negligent. On appeal, the hunting club was absolved of any liability with the court finding that the hunting club could not have done anything to prevent the shooter from actually taking the shot.

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