The question I address here is what happens when a co participant in an outdoor sporting activity injuries or kills someone while engaged in that activity? An accident can occur in a vast array of activities such as golfing, dirt bike riding, skiing or hunting.
The lead case concerning recovery for outdoor sporting activities in Michigan was decided in 1999. In that case, the court granted leave to consider the appropriate standard of care for those involved in recreational activities. The court ruled that co participants in recreational activities owe each other a duty not to act recklessly.
Hypothetically, let's consider the case where someone is injured while skating. The Midwest contains numerous ice rinks open to the public for skating. The question is what is the liability of someone who is inexperienced and knocks down while skating backwards causing serious injury to the innocent victim. The victim in this situation could would allege that the defendant was skating backwards in a “careless, reckless, and negligent manner” at the time of the collision.
The Michigan Courts will have to consider the appropriate standard of care for those involved in the specific recreational activity. In this case it is open public skating. Consequently, under Michigan Law co participants in skating activities owe each other a duty not to act recklessly.So, we are left with a valid argument that an inexperience skater in a crowded public rink should not be skating backwards under any circumstances. Therefore the defendant is acting recklessly. The defendant could easily counter that while inexperienced she is practicing and learning in a reasonable manner. Obviously this creates a question of fact after all the information and fact are developed in discovery.
The Michigan courts supply little guidelines where individuals engage in recreational or sports activities. The case law generally assumes there is an ordinary risk in each activity and that plaintiffs cannot recover for any injury unless it can be shown that the other participant's actions were either ‘reckless' or ‘intentional'. In other states where assumption of the risk has been abolished, some courts have held that a participant “consents” to conduct normally associated with the activity. In that case an injured party must look very closely at the expectations of the parties to each activity.
The Michigan Courts adopted a reckless misconduct as the minimum standard of care for co participants in recreational activities. The court found that this standard most accurately reflects the actual expectations of participants in recreational activities. However, in this writers opinion, the only way to apply this standard is to go into the intricacies of each sporting activity. Thus, each sport will have different standards and rules. Additionally there is an issue of the relative experience of each person involve in the activity.
The Michigan courts have stated they believe that participants in recreational activities do not expect to sue or be sued for mere carelessness. Although that is true to an extent, you also don't expect to go out for some sporting fun and come home disabled or seriously injured.
The Michigan courts further conclude that a recklessness standard somehow encourage vigorous participation in recreational activities, while still providing protection from egregious conduct. Finally the Michigan court concludes this standard lends itself to common-sense application by both judges and juries.
I believe this decision is wrong and somewhat disturbing. I do not agree with the court. Consider the case of an injured hunter. I believe that if people knew the law on hunting in Michigan they may choose not to participate in a multiple group hunting event. A co participant could easily be shot by an inexperienced hunter in their group. The inexperienced hunter could be violating a basic rule of hunting such as swinging on game. There are several basic rules of firearm hunting that could be violated causing serious injury. The question is whether this should be considered negligence or reckless conduct for purposes of civil liability.
Additionally what happens when a hunter is injured by a hunter that is not in the same party of the victim? Is this random hunter considered a co participant even though they are not in the same group of hunters. What is the standard of care of this random hunter?
Thus, when confronted with the question of a serious injury or wrongful death of a co participant hunter, the question is how do you prove that the shooter was reckless in his behavior versus just negligent? In other words, what is the conduct in Michigan and other jurisdictions that is normally acceptable and associated with hunting. Conversely, what is considered reckless and unacceptable conduct while hunting.
In considering the facts of a hunting accident or a wrongful death, what conduct would be considered an accident and what would be considered reckless? If the hunter injures or kills a co participant because he mistakes him for an animal, is his conduct negligent or reckless? What was the shooters position when he fired the shot? What is the shooters level of experience? Should the training and experience of the hunter be a factor in determine the ultimate issue of liability?
The answer to all these questions is that the jury will have to decide for themselves based upon the facts of the hunting accident as presented by both the remaining co participants and the accident reconstruction by the police and retained experts. Certainly an argument could be made that anyone who is shot or killed by another hunter was the victim of reckless conduct.
In a hunting accident, what if the hunter becomes confused or forgets about the location of the victim when he fired the wayward shot. Consequently, the victim can argue it is always the responsibility of every hunter to know the location of his co participants before he or she fires a shot. Certainly there is a forceful argument that this is reckless conduct.
An expert witness in firearms and forensics would be an important witness in proving your case. Every case will have multiple moving parts as well issues related to gun safely and DNR regulations. In other words, did the hunter violate any safety principles established by the State of Michigan Hunter Education Program? Specifically, was there a lack of establishing or coordinating a safe zone of fire in this case? That is, the area in which a hunter can shoot safely. For instance, did the hunter fail to maintain the whereabouts of co participants placing them at risk of injury or death. In my opinion, it is reckless to fire a weapon at stationary or moving target when standing behind another co participant while shooting at game.
The conclusion of the expert in a hunting accident case is critical. The expert will base their conclusion upon years of experience and forensic scientific testing. The expert should have extensive understanding of “terminal ballistics” (the point from which a projectile makes contact with an object).
For instance, what is the path of a bullets flight? Was the shot and view un-obstructed prior to striking the victim? What is the type of ammunition used when it struck the victim? What is the muzzle velocity in terms of traveling feet per second? What was the condition of the bullet when it was retrieved from the victim. Was it a disfigured entry shape while entering the victim or was it an unobstructed shot?
What happens when a shooter is suffering from a sickness? In other words, what is the hunters general physical condition? Should that hunter be precluded from participating in dangerous sport like hunting because of his physical condition?
A jury would have to look at this evidence and determine whether this was a contributing factor to the hunting accident. Did the hunter make a mistake in participating in the trip? Is that participation alone enough to be considered reckless or merely negligent.
Was the at fault hunter taking medication? What are the known effects of the medication? The question is whether the shooter should have been hunting at all that day? If he was on medication that affects his judgment or makes him drowsy then he had no business handling firearms and hunting. The drugs may explain a hunters confusion about the location of the victim at the time he fired the lethal shot. Alternatively, the drugs may alter the hunters perception of his surroundings.
You can argue they failed to establish and coordinate a safe zone of fire. Another rule they violated is never shoot unless you know exactly what your shot is going to strike. Also, before you fire you must be sure that your bullet will not injure anyone or anything beyond his target. Also, it is imperative that you are know the position of your co participants before you shoot.
The expert witness you choose should conduct scientific testing to determine the angle of the shot and the safety factors. A safe direction means a direction in which a bullet cannot possibly strike anyone, taking into account that bullets can penetrate walls and ceilings. The safe direction may be “up” on some occasions or “down” on others, but never at anyone or anything not intended as a target.
Conversely, there could be hunting accidents that result from negligence of the injured party and not reckless conduct. This could result from the co participants jointly agreeing to hunt in dangerous proximity to each other. Additionally the hunters could agree to stay out after dark or hunt in a rugged and rocky area. A gun could be innocently misfired as a result of a defect.
The bottom line is that the court may very well apply the ordinary negligence standard based on the facts of your case. Here is how I would make my argument in the case of a hunter injured by a co participant. I would explain to the court it cannot reasonably be argued that part of the inherent risk of hunting is that your co participant will shoot you, right. Hunting accidents can occur if someone drops a gun or accidentally pulls the trigger, but you do not take the inherent risk that a co participant intentionally stands behind you and fires at game in your direction. If that was the case, no reasonable person would ever go hunting.
It is easy to argue that a hunter violated numerous basic rules of hunting that leads to the conclusion his conduct was reckless when he or she shoots a co participant. It may be much more difficult to argue a different sporting activity such as baseball requires a negligence standard. Thus, each sport should be viewed in the context and goals of that specific activity.
My review of most factors in a hunting accident case, but not all cases, lead me to believe that the negligence standard should be applied instead of recklessness.
In a recent case concerning a golf cart injury the Michigan opened the door to consider factors other than applying just a strict recklessness standard. The Michigan courts ruled the standard of care for the operation of a golf cart is not reckless misconduct but it is ordinary negligence.This makes sense because a co participant in a golf match does not expect to get run over by a golf cart. Arguably, golf carts are not part of the game. This is despite the fact that golf carts are certainly part of the operation of the course and players.
Consider the case where a co participant takes a shot to get his ball on the green, then inadvertently drives his golf cart in the direction of a co participant thinking that they are heading in the other direction. The golf cart driver then strikes and injures his co participant. the driver of the cart will claim his action is only a reasonable mistake or accident. Certainly the driver looked to see if there was anyone in front of the cart and he saw no one.
The golf cart accident resulting in injuries presents an issue of first impression in Michigan. Obviously, the parties were, without dispute, co participants in a recreational activity. Thus, the Michigan courts should find co participants in recreational activities owe each other a duty not to act recklessly.
So under the previous rulings the golf cart accident resulted in co participant conduct that causes injury during a recreational activity must meet the reckless misconduct standard.
Likewise, even though numerous golf-related cases in Michigan and other jurisdictions have applied the reckless misconduct standard to a participant who was injured by a golf ball or a club, it appears the court is now softening it position. The Michigan court is now saying that a driver of an injury-causing golf cart during a game of golf can be held to any standard other than ordinary negligence.
The logic is that the rules of the game of golf, and secondary sources, allows the court to conclude that golf-cart injuries are not a risk inherent in the game of golf. Consequently, they should not be held to a reckless misconduct standard, instead of an ordinary negligence standard, applies in this case.
Additionally, the rationale for this position seems to indicate that a reckless misconduct standard shall be applied in all cases that seem to involve conduct arising from a recreational activity. However, the court is not supplying the standard broadly as applying to all ‘recreational activities.' However, the precise scope of this rule is best established by allowing it to emerge on a case-by-case basis, so that we might carefully consider the application of the recklessness standard in various factual contexts.”
The courts must look at the definition of Inherent risk which is defined similarly by both legal and lay dictionaries:
1. A risk that is necessarily entailed in a given activity and involves dealing with a situation that carries a probability of loss unless action is taken to control or correct it. 2. A fairly common risk that people normally bear whenever they decide to engage in a certain activity.
A risk is inherent in an activity if the ordinary participant would reasonably consent to the risk, and the risk cannot be tailored to satisfy the idiosyncratic needs of any particular participant like the plaintiff.
There seems to be an opening to argue that negligence standard may apply in the case of a hunting accident. Although hunters have guns I do not believe for one minute that a co participant assumes there is a natural risk he will be shot by the other hunter. However, I still am of the opinion that when one hunter shoots a co participant that hunter acted recklessly.
Based on the rationale behind the Michigan courts recent findings, there is a possibility that the jury may be instructed on the ordinary care standard under the circumstances of certain cases. That is to say the standard of care of a reasonable hunter under the circumstances or a skater or skier in Michigan.
So, the question is how to present the argument that the standard of care in your outdoor co participant sporting activity should be negligence instead of recklessness to the court?
Whether it is the reckless standard or negligence standard it is a question of fact for the jury.The burden of proof of either standard is by a preponderance of the evidence in either case. A jury will likely find a hunter that shoots a co participant reckless rather than negligent.
