Payne v. Payne

338 Mich.App. 265

979 N.W.2d 706

Jeff PAYNE, Plaintiff-Appellant,

v.David PAYNE, Defendant-Appellee.

No. 354057

Court of Appeals of Michigan.

Submitted May 4, 2021, at Detroit.

Decided July 29, 2021, 9:20 a.m.

David F. Zuppke, PLC, Southfield (by David F. Zuppke ) and James G. Gross, PLC, Detroit (by James G. Gross ) for plaintiff.

Gault Davison, PC (by Gregory A. Nave, Farmington Hills, Edward B. Davison, Grand Blanc, and Michael W. Edmunds ) for defendant.

Before: Markey, P.J., and M. J. Kelly and Swartzle, JJ.

Swartzle, J. Hunting injuries are not new to the courts of Michigan. Hunting has a long, rich tradition in the state, but as with any sport or recreational activity, injuries will happen, sometimes with devastating consequences. To encourage participation in sports and recreational activities and provide certainty in the law, our Supreme Court adopted a framework governing the standard of care that a participant owes to a coparticipant. Where a risk of injury is inherent to the sport or recreational activity, the standard of care is reckless misconduct; where a risk is not inherent, the standard of care is ordinary negligence.

In this case, we conclude that there remains a question of fact on whether there was an inherent risk that a hunter would be shot by a fellow hunter in the same blind during a European-style pheasant hunt. Accordingly, we affirm in part and reverse in part, and we remand the matter back to the trial court for further proceedings.

I. BACKGROUND

European-Style Pheasant Hunt. Defendant is plaintiff's father. According to plaintiff, both he and his father are active, experienced outdoorsmen. The two frequently hunt together, approximately 20 times a year.

In the fall of 2015, the two men participated in a European-style pheasant hunt (sometimes called a "pheasant shoot"). This type of hunt involves several two-person blinds arranged in a circle around a tower from which pheasants are released into the air. Each blind is approximately four feet front to back and eight feet in width. A blind is designed to accommodate two hunters, standing side-by-side. The following diagram and photograph were included in the trial court record to illustrate the layout of the hunt:

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Once the hunters are in their respective blinds, a horn signals, pheasants are released from the tower, and hunters shoot at the wildfowl. After a set time limit, a second horn signals, the hunters cease fire, and they rotate to another blind.

Before beginning the hunt, the organizer instructed the hunters on the applicable rules. These included: (1) no shooting while walking from blind to blind; (2) no shooting until the horn sounds; (3) stop shooting when the horn sounds a second time; (4) no loading of shotguns until arriving at a blind; (5) hunters must wear "hunter orange" clothing; (6) no shooting directly to the left or right; and (7) no low shooting—a hunter must see sky around the pheasant before shooting at it.

According to plaintiff, his father did not have any problems handling his shotgun during the first circuit around the tower. Weather conditions were good, and the ground was not slippery. At some point during the second circuit, plaintiff and defendant were standing next to each other in a blind; plaintiff was to the left of defendant as the two faced the tower. When the first horn sounded, the men raised their shotguns to shoot at a pheasant that was heading toward them at "12 o'clock." Plaintiff took just a single shot because, by the time he tracked the pheasant, the bird was directly above him, and he believed that it would not be safe to take a second shot. Defendant took three shots at the pheasant but did not hit the bird. After the third shot, defendant lowered his shotgun; he did not engage the safety or take his finger off the trigger. Defendant's shotgun suddenly discharged, and the birdshot struck plaintiff's hand, resulting in the loss of two of plaintiff's fingers.

The Lawsuit. Plaintiff sued defendant, alleging ordinary negligence, gross negligence, and reckless misconduct. Defendant answered, denying many of plaintiff's allegations and asserting that plaintiff's ordinary-negligence claim was barred by the standard-of-care framework set forth in Ritchie-Gamester v. Berkley , 461 Mich. 73, 597 N.W.2d 517 (1999).

During discovery, a key issue explored by the parties was defendant's state of mind and physical condition during the pheasant hunt. Defendant testified during his deposition that he has hunted for decades, and he knows the basic safety rules of hunting and firearms. On the day of the hunt, he had forgotten his regular hunting gloves, and instead he had to use thicker gloves that had less "feel" to them. Defendant testified that he suffers from Raynaud's syndrome, a condition that causes temporary discoloration, tingling, and numbness in his hands, and he further has difficulty gripping with his right hand because of a partially missing middle finger. Defendant admitted that, when his shotgun discharged and the birdshot hit his son's hand, his shotgun was not pointed in a safe direction, his finger should not have been on the trigger, and he did not have control of the firearm, all of which violated the basic hunting and firearm safety rules.

For his part, plaintiff admitted during his deposition that, over the years, he would sometimes be concerned about how defendant handled his firearm. Defendant would, for example, occasionally swing his firearm in such a way that the muzzle would cross plaintiff's body. This might happen when defendant entered or exited a vehicle or at the shooting range, but not out in the field, according to plaintiff.

Both parties moved for summary disposition under MCR 2.116(C)(10). Defendant argued that Ritchie-Gamester limited his liability to injuries caused by reckless misconduct and the record was clear that he did not act recklessly. Plaintiff argued to the contrary that there was no genuine issue of material fact that defendant had breached the standard of care for an ordinary-negligence claim.

The trial court denied both motions. With respect to the applicable standard of care, the trial court held that the pheasant hunt fell within the scope of recreational activities contemplated by Ritchie-Gamester , and, as a result, defendant's conduct was measured by the standard of recklessness, not ordinary negligence. The trial court further concluded that reasonable minds could differ on whether defendant's conduct amounted to reckless misconduct.

First Application for Leave to Appeal. Plaintiff filed a delayed application for leave to appeal from the trial court's ruling, arguing that the trial court erred in finding that the pheasant hunt was within the scope of Ritchie-Gamester . This Court denied plaintiff's application "for failure to persuade the Court of the need for immediate appellate review." Payne v. Payne , unpublished order of the Court of Appeals, entered March 10, 2017 (Docket No. 335952). Plaintiff then sought leave to appeal to our Supreme Court, which also denied leave to appeal. Payne v. Payne , 501 Mich. 863, 900 N.W.2d 648 (2017).

After plaintiff's unsuccessful appeal, the trial court entered a stipulated order staying proceedings, pending the Supreme Court's decision in Bertin v. Mann , 502 Mich. 603, 918 N.W.2d 707 (2018). After the Court decided Bertin , plaintiff moved for relief from judgment, arguing that the trial court's denial of summary disposition essentially dismissed plaintiff's ordinary-negligence claim and that its ruling should be reversed under Bertin .

The trial court denied plaintiff's motion, stating that it was "not persuaded that extraordinary circumstances exist that would require setting aside the judgment to achieve justice." The trial court recognized the distinction made in Bertin "that coparticipants in a recreational activity owe each other a duty not to act recklessly, but that the standard only applies to injuries that arise from risk inherent to the activity." Analyzing plaintiff's claim under Bertin , the trial court concluded:

In this European Shoot, 18 two-person shooting blinds were situated in a circle. Pheasants were then released from a central point to be shot. A horn signaled shooters to cease firing and rotate to the next blind. At some point, defendant fired his shotgun at a pheasant. As he lowered his gun, it discharged, and plaintiff was shot in the left hand. A reasonable person would have foreseen this inherent risk while participating in such an activity.

Second Application for Leave to Appeal. Plaintiff filed a second delayed application for leave to appeal, arguing that Ritchie-Gamester did not apply to his claim. This Court denied the second application, Payne v. Payne , unpublished order of the Court of Appeals, entered May 8, 2019 (Docket No. 346694), as did the Supreme Court, Payne v. Payne , 505 Mich. 974, 937 N.W.2d 653 (2020).

Back in the trial court, defendant filed a renewed motion for summary disposition, arguing that there was not sufficient evidence to show that he acted recklessly. The trial court denied the motion, explaining:

Although all the testimony indicates that the gun discharged suddenly and accidentally, this same testimony could support a finding of reckless misconduct. There is evidence that defendant wore thick gloves, kept his finger on the trigger without being ready to shoot, and pointed his loaded gun directly at the plaintiff's hand. Reasonable minds could differ as to whether this amounted to reckless misconduct. Accordingly this question should go to a jury.

After denying defendant's motion, the trial court entered a consent order that dismissed plaintiff's "gross negligence claim with prejudice, which will free [p]laintiff to pursue an appeal challenging the [c]ourt's dismissal of his ordinary negligence claim."

II. ANALYSIS

On appeal, plaintiff argues that the trial court erred by holding that (a) the European-style pheasant hunt was a recreational activity under Ritchi...