Montgomery v. Remsburg

810 A.2d 14

147 Md. App. 564

Charles MONTGOMERY, et al., v. James R. REMSBURG, Sr.

No. 1524, Sept. Term, 2001.

Court of Special Appeals of Maryland.

November 1, 2002.

Philip J. McNutt (Hughes & Bentzen, PLLC, on the brief), Washington, DC, for appellants.

Paul Finamore (Brett A. Buckwalter and Niles, Barton & Wilmer, LLP, on the brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and ADKINS, JOHN J. BISHOP, JR. (Retired, Specially Assigned) JJ. ADKINS, Judge.

At 6:00 a.m. on November 28, just before daybreak on the opening day of the 1998 deer hunting season, Charles Montgomery waited quietly in the underbrush, near the northern boundary of the Montgomery family farm in Ijamsville. It was to be Charles's first deer hunt. He and his adult son Brian, an experienced hunter, had arrived in darkness to avoid disturbing deer that might come into their range.

As they awaited the official start of the hunting season—at 6:34 a.m., 30 minutes before sunrise—the Montgomerys were surprised to hear other hunters approach the area from the neighboring property. One hunter climbed into a tree stand that had been located for many years on the Montgomery property, just next to where both Montgomerys remained hidden. At approximately 6:15, the Montgomerys decided to leave the area due to the newly arrived hunters. Before leaving, however, Charles Montgomery reached down to massage a leg cramp.

Immediately, a shot reported. A shotgun shell grazed Brian's neck, then pierced Charles' right arm and entered his side. The shooter was 27 year old James Remsburg, Jr. ("Remsburg Jr."), an experienced hunter. At the first sight of movement from the brush, he had taken aim and fired a single shot from his position in the tree stand.

When he realized his mistake, Remsburg Jr. called to his father, appellee James Remsburg, Sr. ("Remsburg Sr."), who left his post in a tree stand on the neighboring property. Along with others in his hunting party, Remsburg Sr. arrived to find Charles Montgomery bleeding profusely. Upon seeing the injured Montgomerys, Remsburg Sr. commented, "I guess that rules out telling Jamie to shoot at the first thing that moves."

As a result of Remsburg Jr.'s shot, Charles Montgomery has almost no use of his right arm and shoulder, and only limited use of his right hand. Charles, his wife Ruth Ellen, and Brian Montgomery, appellants, sued Remsburg Sr. and Remsburg Jr. for negligence and trespass. After they settled with Remsburg Jr., the Montgomerys continued to pursue their claims against Remsburg Sr.

The Circuit Court for Frederick County granted summary judgment in favor of Remsburg Sr., finding that (1) he could not be liable for negligence because he had no duty to warn Charles Montgomery that they would be hunting in the area that day, or to prevent his son from shooting the Montgomerys on their own property; and (2) he could not be liable for trespass because he was not hunting on the Montgomery property. The Montgomerys contend that both rulings are erroneous.

This appeal presents an issue of first impression in Maryland, regarding the negligence liability of a hunter for his hunting companion's mistaken shooting of another hunter. Generally, hunters are not liable for the negligent and illegal acts of their hunting companions. In the circumstances presented here, however, we shall hold that there were factual disputes material to determining whether Remsburg Sr. owed the Montgomerys a special duty to take preventive measures, either by informing them that they intended to hunt in that area, or by giving Remsburg Jr. enough information to alert him to the possibility that other hunters might be present that morning. Because the trial court premised its grant of summary judgment solely on its "no duty" holding, we shall reverse the judgment on the negligence count, and remand for further proceedings.

Finding no error in the judgment on the trespass count, however, we shall affirm it.

FACTS AND LEGAL PROCEEDINGS

Our review of the summary judgment record necessarily reflects the facts and inferences that are most favorable to the Montgomerys. See Heat & Power Corp. v. Air Prods. & Chems., Inc., 320 Md. 584, 591, 578 A.2d 1202 (1990).

When Remsburg Jr. fired at the Montgomerys, he was standing and shooting on their property. In contrast, his father, Remsburg Sr., was not. Instead, he was positioned in a tree stand located on the adjacent Payne property, near its boundary with the Montgomery property, but about 250 to 400 yards from his son. The other members of the Remsburgs' hunting party also were on the Payne property.

On the morning of November 28, 1998, the Montgomerys and Remsburgs were not strangers. Remsburg Sr. had a long working relationship with Charles Montgomery's late father, James O. Montgomery, as well as years of hunting experience on the Montgomery property. James Montgomery allegedly leased hunting rights to a number of different hunters, designating particular portions of the Montgomery property for each. In 1989, Remsburg Sr. and James Montgomery entered into a written lease giving Remsburg Sr. hunting rights for five years, for the annual sum of $500. Remsburg Sr. paid in work that he performed on the Montgomery property, which was credited against the rent.

According to the Montgomerys, when the Remsburgs' lease expired in 1994, Charles Montgomery had assumed his father's role as the decision maker regarding hunting rights. Charles verbally granted Remsburg Sr. hunting rights in each of the ensuing years, through 1997, and Remsburg Sr. continued to pay with his work.

During these years, Remsburg Sr. often brought his son and others to hunt on the Montgomery property. In fact, while Remsburg Jr. was still a minor, he and his father built the tree stand from which he eventually shot at the Montgomerys. This stand was located, at the suggestion of James Montgomery, near the northern boundary of the Montgomery property.

According to Charles Montgomery, however, as the 1998 deer hunting season approached, he had decided not to give Remsburg Sr. permission to hunt on the Montgomery property. He claimed that he made the decision, in part, because there had been reports of hunting altercations involving Remsburg Sr. Remsburg Sr., however, never spoke with Charles Montgomery about hunting rights for the 1998 deer season. Remsburg Sr. instead had entered into a written lease for hunting rights on the adjacent Payne property, which covered the 1998 deer season.

Whether, in addition to his right to hunt on the Payne property, Remsburg Sr. also had a right to hunt on the Montgomery property is disputed. In his answers to interrogatories,¹ Remsburg Jr. asserted a right to hunt from the tree stand on the Montgomery property that was derived from his father's hunting rights under the 1989 lease, which, he alleged, had been renewed for another five years:

Mr. Remsburg was on the property in question with the permission of his father, James Remsburg, Sr. The [Montgomerys], either directly or through a predecessor, expressly consented to the presence of Mr. Remsburg on their property, for purposes of hunting, pursuant to the written Agreement of Lease, dated January 7, 1989, and subsequently renewed for an additional five year term commencing January 7, 1994[.] (Emphasis added.)

The Montgomerys deny that the 1989 lease was renewed, and that Remsburg, Sr. ever paid any rent for such a renewal. In addition, they contend that, even if the lease had been renewed, it never covered the portion of their property where Remsburg Jr.'s tree stand is located. The 1989 lease limits hunting rights to a specific portion of the Montgomery property, which, it states, is identified in an exhibit incorporated into the lease. But that exhibit is missing, and the parties dispute which portion of the Montgomery property it referred to.

The Montgomerys assert that the 1989 lease did not give Remsburg Sr. hunting rights on the property located to the north of Ball Road, which bisects the Montgomery property.² In "commonsensical" support, they point out that there are three residences of various Montgomery family members north of Ball Road, as well as dairy livestock that would be disturbed by hunting activity.

Remsburg Sr. counters that the renewed 1989 lease gave them permission to hunt anywhere north of Ball Road. He points to Charles Montgomery's deposition testimony that he knew that Remsburg Sr. was hunting north of Ball Road on the Montgomery property, and that he was asserting to other hunters that he had a right to do so, until shortly before November 28, 1998. In additional "commonsensical" support, he notes the longstanding presence of the tree stand near the northern boundary of the property, and the fact that it was built where James Montgomery told them to put it.

The Montgomerys also point to other evidence that Remsburg Sr. appreciated the potential for trouble if his hunting party hunted out of the tree stand that morning. They point to evidence that earlier that fall, before this accident, another hunter to whom Charles had given hunting rights, reported to Charles Montgomery that he had encountered Remsburg Sr. on the Montgomery property while he was hunting, to argue that Remsburg Sr. knew he had not been given exclusive hunting rights for the 1998 deer season.

The Montgomerys also argue that Remsburg Sr. understood that the Montgomerys would not anticipate his hunting party's presence on opening day. They contend that on the evening of November 27, 1998, the night before deer season opened, Remsburg Sr. telephoned Charles Montgomery's house, but no one was home.³ The Montgomerys claim that Remsburg Sr. was calling to ask for the permission to hunt that he knew he needed but did not have, or at least to advise Charles that his hunting party intended to hunt there under a claim of right.

The Montgomerys also alleged that there is evidence that the Remsburgs were competing...