By Doyice Cotten

Anthony Wimmer went on a hunting trip hosted by defendant Top Gun (Wimmer v. Top Gun Guide Service, Inc., 2019). Prior to going on the trip, Wimmer read and signed a waiver purporting to release Top Gun from liability arising from the hunting trip. Mr. Wimmer also agreed in his deposition that hunting and fishing is a dangerous activity. The waiver read in part:

 

I acknowledge that hunting and fishing entails known and unanticipated risks which could result in physical or emotional injury, paralysis, death, or damage to myself, … I understand that such risks are essential qualities of the activity. The risks include, among other things: Accidental shootings, or falls to myself … trip or fall accidents to myself … medical problems from preexisting conditions … to myself … I expressly agree and promise to accept and assume all of the risks existing in this activity. My participation in this activity is purely voluntary, and I elect to participate in spite of the risks to others and myself, I fully understand that hunting and fishing is a dangerous activity. I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless [Top Gun] from any and all claims, demands, or causes of action, which are in any way connected with my participation in this activity or my use of [Top Gun] equipment or facilities, including any such claims which allege negligent acts or omissions of [Top gun]. [Emphasis added.]

 

Well before daylight, Mr. Wimmer arrived at the hunting site and began setting up hunting decoys. When he finished and while standing in a field waiting for the hunt to begin, he was struck from behind “by either an ATV or sled.” The sled was being towed behind the ATV by a Top Gun guide. He was seriously injured.

Top Gun argued that the waiver is unambiguous and does not contravene public policy; hence, the claim should be dismissed. They said  the waiver released Top Gun from all liability in relation to the ATV accident. So, Top Gun’s argument relied on the liability waiver being found to encompass the incident.

Wimmer gave several arguments against the waiver.

• First, was that the incident was outside the scope of the waiver.
• Also, that he had no meaningful opportunity to negotiate the terms of the waiver, therefore the contract was one of adhesion in which any ambiguities should be construed against the drafter.
• Further, that the waiver, by its terms, only applies to the limited activities of hunting and fishing. He claims that he was not hunting at the time – having finished setting up the decoys and was merely standing in the field waiting to be told what he should do next. Plaintiff urges that such activity should not be considered hunting.
• In addition, that even if he was hunting at the time of the accident, the release is contrary to South Dakota law as it purports to waive liability for acts of gross negligence and, so, enforcing it would be against South Dakota’s public policy.
• Plaintiff also argues that provisions of South Dakota law related to motor vehicle liability preclude enforcement of the waiver as against the state’s public policy.

Top Gun replied:

• That plaintiff’s reading of the waiver is too narrow, the terms of the waiver are broad enough to cover any injury “in any way connected with” the activity of hunting. He contended that the terms of the waiver apply to plaintiff’s injury whether or not he was actively shooting or pursuing birds at the time of the injury.
• That setting up decoys is a part of pursuing birds, which is within the definition of hunting adopted in South Dakota’s laws.
• That enforcing the release against plaintiff would not violate South Dakota public policy because plaintiff only claims ordinary negligence, liability for which may be waived.
• That plaintiff produced no evidence that defendant’s agent operated the ATV in a reckless or willfully negligent manner.
• That there was no disparity in bargaining power that would warrant this waiver being viewed as a contract of adhesion.
• That the waiver does not allow Top Gun to circumvent South Dakota’s motor vehicle insurance laws, as plaintiff has claimed, and enforcing the waiver would not be contrary to the public policy those laws espouse.

So, while many issues were addressed, the major issue in this case was whether Wimmer was injured while hunting or not. If it occurred while hunting, the waiver would protect Top Gun from liability. If not, then Top Gun would be liable. So when does hunting begin?

 

You be the Judge!

This is an interesting issue. When does hunting begin? The waiver is excellent; but is the incident beyond the scope of the waiver? Was Wimmer hunting at the time? What is the meaning of the phrase “in any way connected with my participation in this activity?”

Think about these questions and decide whether the waiver should protect Top Gun from liability. If you have a couple of minutes after finishing the post, send me an email ([email protected]) with your decision and reasoning.   Now, Scroll Down …

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DISCUSSION

The law of the forum state, South Dakota, was applied.

Under South Dakota law, a waiver of liability is contractual in nature and is governed by contract law which requires that the mutual intent of the parties is carried out.  Courts are to look to the language of the contract to determine the intent; terms are afforded their plain and ordinary meaning.

The court stated that “a contract is not rendered ambiguous merely because the parties now disagree as to their intent at the time of contracting.” It held that the waiver at issue in the instant case is not ambiguous. It stated that its terms cover “all claims, demands, or causes of action, which are in any way connected with [plaintiff’s] participation in this activity or [plaintiff’s] use of [Top Gun] equipment…”

The court noted that Top Gun argues that:

At the time of injury, plaintiff was in the process of pursuing birds, that is, plaintiff was on a hunting trip, in a hunting field regardless of whether he was actively shooting or preparing to shoot at the time. Because plaintiff was pursuing birds at the time he was injured, defendant argues that his injury is “connected with” the activity of hunting. Plaintiff argues that he was done setting up decoys at the time he was injured and, as a result, he was not pursuing birds at the time of the harm—he was merely a man standing in a field. As a matter of law, plaintiff could not have legally been pursuing waterfowl because the accident happened long before legal shooting time. Thus, both parties focused their arguments on what the plaintiff was doing at the time of the accident.

This accident could not, as a matter of law, have been a part of legal hunting. In South Dakota, a hunter may not shoot waterfowl until one half hour before sunrise. At the time of the accident, all preparations for hunting had been completed. The parties were in a waiting period. Instead, plaintiff was struck by a motor vehicle. The fact that plaintiff is claimed to be hunting at the time he was struck by the ATV is irrelevant because being struck by an ATV is not a harm arising out of hunting, especially long before sunrise. In addition, the release makes no mention of a motor vehicle accident.

The court did not agree that the incident was “in any way connected with [plaintiff’s] participation in this activity.”  It said “In any way connected” is too broad, saying at some point it is absurd to find an activity distantly connected to be covered by the waiver.

Ruling

The court ruled that the injury did not arise from his participation in the hunt. It felt the hunt had not yet begun and that the waiver was for injuries arising from the activities of hunting; it did not apply to standing in a field while waiting to be told what to do next.

The court added that it was unnecessary to address the issues of insurance law, public policy, and gross negligence.

Worth Noting

The court noted two lines of reasoning regarding the enforcement of waivers in South Dakota:

• The more inherently dangerous or risky the recreational activity, the more likely that a waiver will be held valid.
• Waivers are deemed more acceptable when they are written on a separate sheet of paper.

My Opinion

You might have guessed, I thought the waiver should have been enforced. To me, the hunting trip began when he left the hotel and the tour company took him to the site. He signed an unambiguous waiver which released Top Gun of a duty of ordinary care. Wimmer knew that “hunting and fishing entails known and unanticipated risks” and he expressly assumed them.  Granted, Top Gun committed a negligent act, but Top Gun was absolved of the duty of ordinary care by the waiver. Send me your thoughts.

Photo Credit: Thanks to USFWS Midwest Region via Flickr.