Or Did Victim Assume the Risk of Accidental Shooting?

On June 8, 2018, Todd Herrington, his son Devin, John Tompkins (Todd’s brother-in-law), and Robert Westcott were in Bearn, Quebec, Canada on a fishing and hunting trip. Each of them had a designated area for hunting that was a significant distance away from the others.

Patricia Harrington, as Administrator of Todd’s estate, sued Tompkins (her brother), for negligently causing Todd’s death. Patricia moved for summary judgment.

The Court found the following facts: In the afternoon of June 8, Tompkins went bear hunting, driving to his hunting location using an all-terrain vehicle that had been having mechanical issues earlier that day. As it approached sunset, Tompkins had not returned to the cabin where the party was staying. Todd Herrington drove his own ATV on a logging road to the area in which Tompkins was hunting and parked his ATV alongside Tompkins’ ATV on the side of the road and waited for Tompkins to exit the woods.

At or around sunset, Tompkins began walking back to his ATV. As he approached the ATVs, he saw a figure near the ATVs. Believing it was a bear, he whistled and waived his hands in the air. Seeing some movement, he discharged his rifle, striking Todd Herrington and killing him instantly.

On June 11, 2018, Tompkins was charged with criminal negligent use of a firearm resulting in death, manslaughter, and careless use of a firearm. The parties disputed what occurred during the Canadian criminal proceedings. Tompkins argued that he was found guilty on November 15, 2019 and was sentenced to probation on August 14, 2020. Patricia Harrington argued that Tompkins pled guilty to the charge of careless use of a firearm and was sentenced on August 14, 2020. But that was immaterial to the issues before the Court because the criminal action terminated with the imposition of sentence on August 14, 2020.

Thus, Patricia met burden in establishing the absence of any material issue of fact and her entitlement to summary judgment on her causes of action. Having done so, the burden shifted to Tompkins, to show, by admissible evidence, the existence of an issue of fact requiring a trial.

Tompkins argued that there was sufficient evidence supporting three of his affirmative defenses that would preclude the granting of summary judgment for Harrington. The first affirmative defense was that Todd Herrington was comparatively negligent. The second affirmative defense was that Todd assumed the risk of his injuries. The eleventh affirmative defense was that the action was barred by the statute of limitations.

But Tompkins failed to address Harrington’s arguments seeking to dismiss the affirmative defense of assumption of the risk, and any such claim was abandoned. To the extent that Tompkins alleged the doctrine of primary assumption of the risk as a defense, arguing that Todd assumed the risk of hunting, the Court found that he failed to submit evidence that rebuts Patricia’s entitlement to summary judgment dismissing that affirmative defense.

It was undisputed that at the time Todd Herrington was shot and killed he was not engaged in the sport of hunting. He was seated or standing next to the ATVs on the side of the road. As he was not engaged in hunting, Todd did not consent to the risk of being negligently shot by Tompkins. By engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. However, there was no reasonable view of the evidence that Todd was engaged in the sport of hunting when he was shot and killed by Tompkins.

Even assuming arguendo that he was engaged in the sport of hunting, although the evidence in the light most favorable to Tompkins established he was not, Todd would not be deemed to have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risks. Tompkins’ actions were unique and created a dangerous condition over and above the usual dangers that were inherent in the sport of hunting. Thus, primary assumption of the risk was, as a matter of law, not available as a defense to Tompkins. That doctrine did not encompass another participant’s negligent play which enhanced the risk.

Summary judgment was also granted to Patricia dismissing Tompkins’ first affirmative defense of comparative negligence. Tompkins argued that Todd was comparatively negligent as he was not wearing an orange vest, citing New York Department of Environmental Conservation Regulations. The regulation states:

Any person hunting deer or bear with a firearm or a person who is accompanying someone hunting deer or bear with a firearm shall wear:

a minimum total of two hundred fifty square inches of solid fluorescent orange or fluorescent pink material worn above the waist and visible from all directions; or a minimum total of two hundred fifty square inches of patterned fluorescent orange or fluorescent pink consisting of no less than fifty percent fluorescent orange or fluorescent pink worn above the waist and visible from all directions; or a hat or cap with no less than fifty percent of the exterior consisting of solid fluorescent orange or fluorescent pink material and visible from all directions.

However, that regulation was not relevant because it was implemented after Todd’s death. To the extent this regulation was adopted in recognition of the risk of accidental injury hunters face while hunting, the evidence clearly established that Todd was not engaged in the sport of hunting at the time he was shot, nor was he in the woods where he knew Tompkins was hunting.

Tompkins was solely negligent in his actions. It is axiomatic that one who discharges a firearm must do so safely, knowing that the intended target is not another human being.  A person who carries a weapon for hunting purposes is bound under the law to see and to distinguish at what he or she shoots. There was no valid line of reasoning or permissible inferences that would allow a determination that Todd was comparatively negligent. Whether the issue is the negligence of the defendant or the contributory negligence of the plaintiff, the test is whether there is a valid line of reasoning and permissible inferences that could possibly lead a rational person to the conclusion of negligence based on the evidence. If no such valid line of reasoning exists, it is proper for the trial court to make a legal determination without resorting to the fact-finding function of the jury.

Thus, Tompkins failed to meet his burden to establish that Todd was negligent in any way. So the first and second affirmative defenses were dismissed.

Tompkins also asserted an eleventh affirmative defense that Patricia’s claims were precluded by the statute of limitations.

Todd was killed by Tompkins on June 8, 2018. Tompkins was found guilty on November 15, 2019 and was sentenced to probation on August 14, 2020. The Probation Order stated that Tompkins was found guilty of the charge of Criminal Code 86(1)(3)a) on 2019-11-15, and “whereas on 2020-08-14 the Court adjudged, subject to the conditions hereinafter prescribed: that the passing of sentence on the offender be suspended, and that he be released NOW THEREFORE, the offender shall, for a period of 2 years COMPLY WITH THE FOLLOWING CONDITIONS.” The Order then imposed the conditions of probation and a fine of $5,000. Additionally, the Order noted it was issued pursuant to “Section 732.1 Cr.C”, which is contained under “Part XXIII-Sentencing” of the Criminal Code of Canada.¹ Thus, Tompkins was sentenced on August 14, 2020.

EPTL § 5-4.1(2) states:

Whenever it is shown that a criminal action has been commenced against the same defendant with respect to the event or occurrence from which a claim under this section arises, the personal representative of the decedent shall have at least one year from the termination of the criminal action as defined in section 1.20 of the criminal procedure law in which to maintain an action, notwithstanding that the time in which to commence such action has already expired or has less than a year remaining.

Criminal Procedure Law 1.20 states that a criminal action “(c) terminates with the imposition of sentence or some other final disposition in a criminal court of the last accusatory instrument filed in the case.” Thus, Tompkins’ criminal action terminated on August 14, 2020.

The Court concluded that “criminal action” as used in EPTL § 5-4.1(2) must be given its ordinary meaning. There was no logical reason to construe “criminal action” to mean only those actions commenced in any state, or by the federal government but exclude criminal actions commenced in Canada. The term “criminal action” under EPTL § 5-4.1(2) should be given its ordinary meaning and applied to Tompkins’ Canadian criminal prosecution.

Tompkins was convicted on August 14, 2020 of a crime directly related to his negligent shooting and killing of Todd Herrington. This action was commenced on July 26, 2021, within one year of the termination of the criminal action. The causes of action alleged in the complaint were related to that criminal conviction (“with respect to the event or occurrence from which a claim under this section arises”). So EPTL § 5-4.1(2) applied, and Patricia’s suit was properly commenced within the requisite time-period. Thus, Tompkins’ eleventh affirmative defense was dismissed.

The Court granted Patricia’s motion for summary judgment on the issue of Tompkins’ liability, his affirmative defenses were dismissed, and matter would be scheduled for an inquest on damages.