Jeff Payne v. David Payne

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

JEFF PAYNE, FOR PUBLICATION
July 29, 2021
Plaintiff-Appellant, 9:20 a.m.

v No. 354057
Alpena Circuit Court
DAVID PAYNE, LC No. 2016-007043-NI

Defendant-Appellee.

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,

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standing side-by-side. The following diagram and photograph were included in the trial-court
record to illustrate the layout of the hunt:

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 NW2d 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

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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 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 NW2d 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 NW2d
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:

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 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 NW2d
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 Ritchie-Gamester, and (b) plaintiff’s injury was a
reasonably foreseeable risk of the pheasant hunt, which subjected plaintiff’s claim to a reckless-
misconduct standard of care. For the following reasons, we reject plaintiff’s first claim but
conclude that there is a genuine issue of material fact on the second one.

A. STANDARD OF REVIEW

We review de novo a trial court’s decision on a motion for summary disposition under
MCR 2.116(C)(10). Ritchie-Gamester, 461 Mich at 76-77. When deciding a motion for summary
disposition under MCR 2.116(C)(10), we consider the evidence submitted in a light most favorable
to the nonmoving party. Id. at 75. Summary disposition is appropriate when “there is no genuine
issue regarding any material fact and the moving party is entitled to judgment as a matter of law.”
West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).

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 B. RECREATIONAL ACTIVITY

Plaintiff first argues that the trial court erred in concluding that a European-style pheasant
hunt is a recreational activity subject to the framework first set forth by our Supreme Court in
Ritchie-Gamester and subsequently developed by the Court in Bertin. Plaintiff concedes that
hunting is, broadly speaking, a recreational activity, but he argues that our Supreme Court did not
intend to subject hunting to the Ritchie-Gamester/Bertin framework. We begin by analyzing the
framework generally, and then take up the question of hunting specifically.

The Ritchie-Gamester Court Adopts the Reckless-Misconduct Standard. Under the
common law of tort, many interpersonal interactions are governed by the ordinary negligence
standard of care. If the common law provides that a person owes a duty to another person, then
that duty is usually to exercise ordinary care commensurate with the particular circumstances of
the situation. Up through the 1970s and 1980s, courts of this state imposed an ordinary-negligence
standard on hunters when they interacted with members of their own hunting party, Nagy v
McEachern, 28 Mich App 439; 184 NW2d 556 (1970), members of another hunting party, Clark
v Braham, 386 Mich 53; 191 NW2d 352 (1971), and non-hunters generally, Walters v Sargent, 46
Mich App 379; 208 NW2d 207 (1973), aff’d in part, rev’d in part, 390 Mich 775 (1973). But in
1999, our Supreme Court pivoted away from the ordinary-negligence standard in a narrow
category of cases—those cases involving coparticipants who are engaged in a sport or recreational
activity.

In Ritchie-Gamester, an ice skater collided with another skater. The plaintiff asked the
Court to apply the standard of ordinary negligence to her common-law claim, while the defendant
argued that a reckless-misconduct standard should apply. Ritchie-Gamester, 461 Mich at 75-76.

The Court started its analysis by reviewing the then-current state of the common law for
sports and recreational activities. Id. at 77-85. The first and second published opinions it analyzed
involved parties who were fishing and duck hunting, respectively. Id. at 77-78 (discussing
Williams v Wood, 260 Mich 322; 244 NW 490 (1932) (fishing), and Felgner v Anderson, 375 Mich
23; 133 NW2d 136 (1965) (duck hunting)). In both of the earlier cases, the courts applied the
standard of ordinary negligence to the plaintiffs’ claims, and in Felgner, the assumption-of-risk
doctrine was abolished in cases involving sports and recreational activities. Id. at 78.

The Court then observed that, post-Felgner, courts of this state “began to move away from
the ‘ordinary care’ standard” in sports and recreational-activity cases. Id. This movement reflected
the presumption that coparticipants in a sport or recreational activity voluntarily consent to the risk
of injury inherent in that activity, and in the absence of the assumption-of-risk doctrine, the
standard itself needed to adjust to reflect this presumption. The movement was uneven, however,
as some courts continued to apply a straight ordinary-negligence standard, see, e.g., Schmidt v
Youngs, 215 Mich App 222; 544 NW2d 743 (1996), while others applied less-stringent standards
of various description, see, e.g., Higgins v Pfeiffer, 215 Mich App 423; 546 NW2d 645 (1996).

Looking outside of Michigan, the Supreme Court observed that other jurisdictions were
basically split into two camps. A minority of jurisdictions applied an ordinary-negligence
standard, while a majority of jurisdictions applied “a ‘reckless or intentional conduct’ or a ‘willful
and wanton or intentional misconduct’ standard.” Ritchie-Gamester, 461 Mich at 81-82. For those

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courts that applied a less-stringent standard, some justified the standard on the risk assumed or
consented to by coparticipants, and almost every court “recognized that a fear of litigation could
alter the nature of recreational activities and sports.” Id. at 84. As the Court observed, “Fear of
civil liability stemming from negligent acts occurring in an athletic event could curtail the proper
fervor with which the game should be played and discourage individual participation.” Id.
(cleaned up).

With this background in mind, the Court took as a basic premise that “[w]hen people
engage in a recreational activity, they have voluntarily subjected themselves to certain risks
inherent in that activity. When one of those risks results in injury, the participant has no ground
for complaint.” Id. at 87. In light of this understanding, the Court joined the majority of other
jurisdictions in adopting “reckless misconduct as the minimum standard of care for coparticipants
in recreational activities.” Id. at 89.

The adoption of the reckless-misconduct standard did not mean, however, that ordinary
negligence had no place in recreational activities. The Supreme Court made clear that the reckless-
misconduct standard applied only to risks that were inherent in the recreational activity, not those
risks that exceeded “the normal bounds” of the activity. Id. at 94. Moreover, the reckless-
misconduct standard applied only in the context where one participant injured another
coparticipant, not where a participant injured a nonparticipant. In footnote 9 of its opinion, the
Court explained that its holding was both broad and narrow: “We recognize that we have stated
this 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.” Id. at 89, n 9.

The Bertin Court Clarifies How to Identify an “Inherent” Risk. Two decades later, the
Supreme Court considered a question that had come up repeatedly in sports and recreation lawsuits
after Ritchie-Gamester, namely, how to identify whether a particular risk was “inherent” to a
particular activity. In Bertin, the parties had been golfing, and the defendant hit the plaintiff with
a golf cart. Bertin, 502 Mich at 606-607. The Court had to resolve whether the risk of being hit
by a golf cart during a round of golf was an inherent risk of the sport. Id. at 605. If so, then the
defendant “owed a duty only to refrain from reckless misconduct,” but if not, then the defendant
would “be held to the negligence standard of conduct.” Id. at 605-606.

The Bertin Court concluded that the issue came down to one of foreseeability. Specifically,
the Court held “that ‘inherent risks’ under Ritchie-Gamester are those that are reasonably
foreseeable under the circumstances of the case. When an injury arises from such a risk, the
reckless-misconduct standard applies.” Id. at 622. In determining whether a risk is reasonably
foreseeable, the Court stressed several aspects. First, “[t]he foreseeability of the risk is a question
of fact.” Id. at 619. Second, “it is the risk of harm that must be reasonably foreseeable,” not just
the foreseeability of a particular use or act within the recreational activity. Id. at 620. Third, the
test is an objective one, and it “focuses on what risks a reasonable participant, under the
circumstances, would have foreseen.” Id. Fourth, “[t]he risk must be defined by the factual
circumstances of the case—it is not enough that the participant could foresee being injured in
general; the participant must have been able to foresee that the injury could arise through the
‘mechanism’ it resulted from.” Id. at 620-621. And fifth, the Court identified several factual
circumstances that could be relevant, including: (a) “the general characteristics of the participants,

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such as their relationship to each other and to the activity and their experience with the sport”; (b)
“[t]he general rules of the activity”; (c) “any regular departures from the rules or other practices
not accounted for by the rules”; and (d) “any regulations prescribed by the venue at which the
activity is taking place.” Id. at 621-622. As the Court summarized, courts should apply “the usual
approach to reasonable foreseeability” when determining whether a risk is inherent to a sport or
recreational activity. Id. at 622.

Does the Ritchie-Gamester/Bertin Framework Apply to Hunting? Given this framework,
the first question to consider is whether the framework even applies here. More specifically,
plaintiff acknowledges that a European-style pheasant hunt is a “recreational activity,” but he
argues on appeal that his claim remains subject to pre-Ritchie-Gamester/Bertin case law that
applied the ordinary-negligence standard to hunting. Plaintiff maintains that this is justified on
policy grounds because a firearm is a dangerous instrumentality and its use should be subject to a
stricter standard than mere reckless misconduct.

Plaintiff is correct that hunting is a recreational activity. While a European-style pheasant
hunt is a specialized form of hunting, broadly speaking, hunting is a physical activity performed
outdoors for enjoyment, relaxation, and exercise. (This is not to ignore the fact that hunting is
much more than a recreational activity, as hunting can also serve as a vital source of sustenance
for people and as a natural-resource management tool for the state.) Hunting is subject to extensive
official rules and unofficial practices, see, e.g., MCL 324.43501 to MCL 324.43561, and it can be
performed alone or with other hunters. Not surprisingly, hunting has long been recognized by our
Legislature and courts as a recreational activity. See, e.g., MCL 324.73105 (classifying hunting,
fishing, and trapping as recreational activities); DiFranco v Pickard, 427 Mich 32, 86; 398 NW2d
896 (1986) (categorizing hunting as a recreational activity).1

Despite this, plaintiff argues that the Ritchie-Gamester Court did not intend to include
hunting within its new analytical framework, but a review of the decision belies this argument. As
noted earlier, the majority began its analysis by reviewing the then-current “state of Michigan law
regarding the appropriate standard of care in the recreational activity context.” Ritchie-Gamester,
461 Mich at 77 (emphasis added). The first two cases that the majority considered involved fishing
and hunting, id. at 77-78, and, as it subsequently summarized the law of this state, the majority
described the activities it reviewed collectively as “recreational,” id. at 81. At no point did the
majority exempt hunting from its framework or otherwise suggest that its framework did not
encompass the activity.

In fact, in his separate concurring opinion in Ritchie-Gamester, Justice BRICKLEY made
clear that he believed that the majority’s analysis applied to hunting. For instance, Justice
BRICKLEY described the Felgner duck-hunting case as a “sports injury case,” and later he cited
hunting and fishing statistics to support his belief that “recreational sports in Michigan” showed
“no sign of any wane” that might justify a change in the standard of care. Id. at 96, 98 & n 3
(BRICKLEY, J, concurring). The majority offered a lengthy response to various points made by

1
DiFranco was superseded by statute on other grounds, as stated in McCormick v Carrier, 487
Mich 180, 190-191; 795 NW2d 517 (2010).

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Justice BRICKLEY, id. at 90-95 (opinion of the Court), but at no point did the majority suggest that
Justice BRICKLEY was mistaken with regard to whether hunting was a recreational activity subject
to the majority’s reckless-misconduct analytical framework.

Plaintiff insists to the contrary that the majority did, in fact, intend to limit significantly the
reach of its framework. This can be seen, according to plaintiff, by considering footnote 9 of the
majority’s opinion. Based on this footnote, plaintiff concludes that the majority exempted hunting
from the reckless-misconduct framework.

This is, however, a misreading of footnote 9. The majority recognized in this footnote that
the standard it developed was broadly worded to apply to “all ‘recreational activities.’ ” Id. at 89
n 9. At the same time, the majority observed that the “precise scope” of the standard was best left
to emerge on a case-by-case basis. Id. We understand the majority to mean with this footnote
that, when a participant injures a coparticipant in a sport or recreational activity, a court will apply
the analytical framework set forth in Ritchie-Gamester (as subsequently developed in Bertin). The
law will then develop on a case-by-case basis, as each court determines whether, in the context of
the particular activity, it was a reasonably foreseeable risk that a participant could be injured by a
coparticipant in a particular manner. A contrary reading of footnote 9 would suggest that the
Ritchie-Gamester majority violated the old adage that one should not hide an elephant in a mouse-
hole.

In his reply brief, plaintiff further points this Court to MCL 752.861, which criminalizes
the careless, reckless, or negligent use of a firearm that kills or injures a person. While violation
of a statute can be, under certain circumstances, used to support a common-law claim, see Randall
v Mich High Sch Athletic Ass’n, __ Mich App __; __ NW2d __ (2020) (Docket No. 346476),
plaintiff does not argue that defendant violated the criminal statute or, even if defendant did, that
this would support plaintiff’s common-law claim. The statute provides little support here, as it
does not itself create a statutory civil cause of action and, moreover, “recklessness” and
“negligence” in the criminal context are separate and distinct from “recklessness” and
“negligence” in the civil context. See Farmer v Brennan, 51 US 825, 836-837; 114 S Ct 1970;
128 L Ed 2d 811 (1994) (addressing recklessness in both the criminal and civil contexts); People
v Schaefer, 471 Mich 418, 438; 703 NW2d 774 (2005) (addressing gross negligence in the
criminal-law context); Cichewicz v Salesin, 306 Mich App 14, 28-29; 854 NW2d 901 (2014)
(addressing gross negligence in the civil-law context); People v Williams, 244 Mich App 249,
254; 625 NW2d 132 (2001) (“[A] civil action is completely separate and independent from a
criminal action.”); Aetna Cas & Surety Co v Collins, 143 Mich App 661, 663; 373 NW2d 177
(1985) (“Criminal and civil liability are not synonymous.”).

Lastly, plaintiff argues that public policy favors rejection of the Ritchie-Gamester/Bertin
framework in the hunting context because, if the reckless-misconduct standard is applied to
firearm-related recreational activities, participants would be permitted to ignore certain rules of
firearm safety without the fear of litigation. This argument is similar to one made by Justice
BRICKLEY in his separate opinion in Ritchie-Gamester. In response to the majority’s position that
an ordinary-negligence standard would be insufficient to “encourage[] vigorous participation in
recreational activities,” Ritchie-Gamester, 461 Mich at 89 (opinion of the Court), Justice
BRICKLEY countered, “[I]t is just as likely that many would choose not to participate in these
activities because the recklessness standard might encourage dangerous behavior or make it too

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difficult for participants to recover in the event they are injured,” id. at 99-100 (BRICKLEY, J,
concurring). Although both the majority and Justice BRICKLEY made valid points on the question
of which standard best encourages participation in recreational activities, the majority’s position
ultimately won the day.

And regardless, plaintiff’s specific argument is too sweeping in its scope. If the use of a
dangerous instrumentality was alone sufficient to justify carving out hunting from the Ritchie-
Gamester/Bertin framework, then this logic would presumably apply to several other sports and
recreational activities as well, including fencing, archery, javelin throw, and competitive firearm
shooting. Adoption of plaintiff’s position would result in the very “bowdlerization” of the law for
sports and recreational activities against which the majority expressly warned in Ritchie-Gamester,
461 Mich at 91. Cf Konrad v Morant, 89 Ohio App 3d 803, 806; 627 NE2d 1007 (1993)
(explaining that “the focus in determining whether an activity is recreational is not on the
instrument used in the activity but on the expectations of the participants” and holding that a game
of “BB Gun War” was a recreational activity subject to a recklessness standard of care).

With that said, courts cannot ignore the dangerousness of an instrumentality used in a sport
or recreational activity. The instrumentalities used in bowling and basketball, for example, present
much different risks than those used in golf and hunting. Each instrumentality, as it is used in a
specific activity, will present risks that differ in degree and in kind from an instrumentality used
in another activity. The risks posed by an instrumentality in a particular activity are too fact-
specific to make sweeping exemptions from the Ritchie-Gamester/Bertin framework. Instead, the
risks are best considered at the next stage of the analysis—i.e., whether a particular risk of injury
was reasonably foreseeable under the circumstances.

It is to this question that we now turn.

C. QUESTION OF FACT ON REASONABLE FORESEEABILITY

Although the Ritchie-Gamester/Bertin framework applies, we must consider whether the
particular risk that gave rise to plaintiff’s injury was inherent to the recreational activity. Father
and son were experienced hunters, well-versed in hunter-safety rules, standing shoulder-to-
shoulder in the same blind, and shooting away from each other. Plaintiff concedes that there was
an inherent risk that he could have been shot by a hunter in a blind directly across from him, but
he argues that being shot by defendant did not present the same type of risk.

As the Bertin Court made clear, whether a particular risk of harm was inherent to a
recreational activity is a question of fact. The test is an objective one, i.e., it is based on “what
risks a reasonable participant, under the circumstances, would have foreseen,” Bertin, 502 Mich
at 621, so a party’s subjective evaluation of the circumstances and tolerance for risk are irrelevant.
This does not mean, however, that the parties’ observations are likewise irrelevant and can be
ignored—rather, the observations must be considered from the viewpoint of the common law’s
“reasonable participant.”

Like other sports and recreational activities, hunting in general poses known risks to the
participants. While it would be unexpected in everyday life for a person to discharge a firearm

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near another person, a hunter that is participating in a pheasant hunt with other hunters is on notice
that firearm activity is taking place in close physical proximity.

And yet, on review of this record, we conclude that there remains a genuine issue of
material fact on whether the risk of being shot by defendant was reasonably foreseeable to someone
in plaintiff’s position. On the one hand, it is well known that, ceteris paribus, the use of a firearm
during hunting poses some risk of harm; it is, after all, a dangerous instrumentality. Hunting in
general and the pheasant hunt in particular had extensive rules in place to reduce the risk of harm
from a firearm. Plaintiff knew that his father could be careless with a firearm, and it can also be
presumed that plaintiff knew that his father had several medical conditions that could affect the
handling of a firearm. This evidence points to a foreseeable risk.

On the other hand, the two men had hunted together regularly over many years, and neither
testified about a prior similar incident. Defendant was well-versed in the rules of hunting,
including this particular style of hunting, and plaintiff knew this. Weather conditions were good,
and there is nothing in the record to suggest that defendant had tingling in his hands at the time of
the incident.

It is also important to consider the specific way in which plaintiff was shot. He was not,
for example, shot by another hunter across the perimeter in another blind. It might very well have
been reasonably foreseeable that plaintiff was at risk of being shot by a hunter from another blind.
We need not decide the issue, however, because that was not the specific risk that unfortunately
became a reality here. Rather, plaintiff was hit by an experienced, knowledgeable hunter, who
plaintiff knew very well, and who stood shoulder to shoulder with plaintiff while they shot outward
from a blind at pheasants flying overhead. On this record, it remains a question of fact whether it
was reasonably foreseeable to plaintiff that there was a risk that defendant would discharge his
shotgun and injure plaintiff.

Accordingly, we affirm in part and reverse in part the trial court’s orders with respect to
the applicable standard of care. On remand, if the finder of fact concludes that the risk was
reasonably foreseeable, then defendant owed a duty only to refrain from reckless misconduct. If
the finder of fact concludes otherwise, then defendant owed a duty to exercise ordinary care.

III. CONCLUSION

Hunting is a recreational activity subject to the standard-of-care framework set forth by our
Supreme Court in Ritchie-Gamester and Bertin. If a particular risk of injury is reasonably
foreseeable (i.e., the risk is “inherent” to hunting), then a hunter will be held to a reckless-
misconduct standard of care when dealing with another hunter in the party; if not, then the hunter
will be held to the ordinary-negligence standard. The inquiry is a factual one, and, on this record,
we conclude that there remains a genuine issue of fact on whether it was reasonably foreseeable
that defendant would shoot and injure plaintiff.

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 Affirmed in part and reversed in part. The matter is remanded to the trial court for further
proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ Brock A. Swartzle
/s/ Jane E. Markey
/s/ Michael J. Kelly

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