Fact Pattern

Jack Franklin, Mitch Gruber, and Samuel Smith are avid outdoorsmen who frequently hunt with each other on state game reserves in Southwestern Ohio. As a tradition, during the second week of December the three hunt ringneck pheasant on a 1200 acre state reserve, 30 miles east of Hillsboro, Ohio. On December 9, 2005, after spending the night at a Motel 6 on the outskirts of town, the three men awoke before dawn and proceeded to the game reserve. Hunting licenses in tow, the men loaded their matching Winchester Parker 28-gauge shotguns with identical Winchester Super-X buckshot ammunition. During the course of the hunt, the three men maintained an inverted triangle formation as a safety precaution so that each member of the hunting party was aware of where the others were at any given time. Jack assigned himself to the rear, at the apex of the triangle. Mitch and Samuel took up positions at the other corners of the triangle. Each person sustained a distance of approximately 60 yards from the other. At 9:30 am, after flushing and successfully shooting two male pheasants himself, Jack flushed a third male. Mitch and Samuel, with full awareness of Jack’s position, turned towards the bird, taking off directly behind Jack, and fired. One pellet of buckshot struck Jack in his cheek, gauging out a two-inch section of flesh, while a second hit Jack on the tip of his nose, ablating 94% of the cartilage. There was no way of identifying from whose shotgun the injuring shots actually were fired as both Mitch and Samuel shot several times. Following his release from the hospital, Jack brought a suit against Mitch and Samuel for personal injury arising from their joint negligent actions. In their answer, Mitch admitted that he was negligent in discharging his firearm while Samuel affirmatively denied that he had acted negligently in discharging his firearm. Both disclaimed liability on grounds that determination of the actual shooter cannot be established.

Issue

Whether a victim of a hunting accident has a cause of action for negligent personal injury against two hunting companions where there is no way of identifying which of the two hunters fired the shots that produced the injury?

Research Narrative Log

My first step in researching this particular issue was deciding where to begin my search and what my initial search phrase would be. I decided to use “hunting liability” as a basic, natural language search parameter, although I planned on augmenting the search terms with the addition of “joint” if the results of the search were too broad. I used Westlaw to conduct the first segment of my research. The first database I used was Ohio Jurisprudence, a legal encyclopedia which, I hoped, would provide me with an overview of the issue. The search returned twenty results, although none of them spoke directly to the issue at hand. I decided to revise the search parameters. I initiated another search, this time with “hunting” as the only term. Again, this search did not provide any salient results from Ohio Jurisprudence. However, it did provide two links, in the ResultsPlus sidebar, to American Legal Report (A.L.R.) annotations that appeared useful. I decided to return to the A.L.R. later, likely pulling them directly off the shelves to complete some book research. I conducted an additional two searches using the terms: “hunting negligence” and “negligence joint enterprise.” The first term revealed few documents relevant to the issue in my fact pattern. Most of the articles were either broad explorations of negligence or criminal charges associated with hunting violations. The second search term, “negligence joint enterprise,” produced a full 100 documents, though many were aimed at the minutiae of imputed negligence rather than general definition of joint enterprise negligence.

I decided on an alternative course of research, this time using a natural language search of all Ohio cases. From the Westlaw main research page, I typed “OH-CS” into the database search box. I entered the natural language search term “joint enterprise negligence in a personal injury while hunting.” This search returned 100 documents. The first document, Kuhn v. Bader,101 N.E.2d 322 (Ohio Ct. App. 1951) looked promising. I opened Kuhn and read the case summary. Id. at 322. The case, though not specifically involving a hunting accident, centered on a question of joint and several liability where multiple parties had engaged in potentially negligent firing of a hunting firearm at a target. My first action was to peruse the KeyCite head notes to see if I could locate any pertinent KeyNumbers. I immediately came across one: 379k135k. Joint and several liability. I clicked on the KeyNumber and limited the search to cases in Ohio jurisdictions and 53 cases emerged. I set this aside to return to Kuhn. I noticed on the ResultsPlus sidebar a link to an American Jurisprudence entry entitled “Engagement in common enterprise” in the negligence section on joint tortfeasors. This looked like a potentially excellent overview and I likewise placed it aside to return to later after completely extracting all useful information form Kuhn.

I scrutinized the text of the opinion and found within a reference to a case I came across in my Torts class, Oliver v. Miles, 110 So. 666 (Miss. 1927). Oliver is a particularly useful text since it lays out the issue of joint liability in conjunction with a hunting accident. However, it is not binding in Ohio, being a case from Mississippi. Additionally, one useful piece of information derived from Kuhn in regards to Oliver is that the majority opinion intimates that Oliver formed the foundation of a specific illustration in the Restatement (Second) of Torts, Section 876 under comment on clause (b). Kuhn, 101 N.E.2d at 328. Calling up this particular section of the Restatement may be valuable, although this too would be saved for a later time.

Next, I investigated the 53 cases that emerged KeyNumber 379k135k in Ohio jurisdictions. In reviewing the head notes corresponding to each case, it became apparent that each was telling a very similar story where individuals acting in concert were held to be jointly liable for negligent actions committed. Therefore, I felt that the best course was to extract the most important suite of cases from the fifty-three. To complete this task, I began sorting through the cases to see if any of them were specifically aimed at the point of law in which I was interested. It quickly became evident that while at least a dozen of the cases were on point, none of them provided a more focused and relevant explanation of the point of law than Kuhn. Therefore, the cases would likely reinforce the law extracted from Kuhn and not provide new dimension to the law. Thus, the key salient points from Kuhn were:

1)“Each of two or more persons whose tortious conduct is a legal cause to another is liabile for entire harm.” Id. at 327.

2)Parties engaged in negligent joint engagement in target practice where a third-party is hit on adjoining property are liable even where “it is impossible to ascertain who fired the shot which inflicted the injury. Id. at 324.

3)The tortious acts took place as part of a common or joint enterprise. Id. at 328.

Although this last point seemed clear for Kuhn, I wanted to confirm that a joint enterprise was part of the general rule of law. I turned to the first A.L.R. I had left aside, T.C. Williams, Annotation, Liability of several persons guilty of acts one of which alone caused injury, in absence of showing as to whose act was the cause, 5 A.L.R.2d 98 (2006). This text provided a very basic analysis similar to that laid out in Kuhn. However, unlike Kuhn, it cited a landmark case from California, Summers v. Tice, 199 P.2d 1 (Cal. 1948), and explained the holding in Summers as: joint liability was extended where the actual agent of damage was unascertainable, applying equally to actions undertaken independently or in concert.

This holding ostensibly differs from that in Kuhn, although this could be because, in Kuhn, the complaint alleged a joint enterprise and the Plaintiff did not attempt to bring a cause of action where the Defendants were acting independently. 101 N.E.2d at 239. As a result, I returned to the 53 cases that had been returned for Ohio under the Westlaw KeyNumber 379k135k. Among those cases I found several, especially in the realm of driving accidents, where two independent tortfeasors were held jointly and severally liable even where the injuries did not involve a joint enterprise. The two most notable cases were Larson v. Cleveland Ry. Co., 50 N.E.2d 163 (Ohio 1943) and Price v. McCoy Sales & Service, Inc.,207 N.E.2d 236 (Ohio 1965).

At this point in my research, it became apparent that while the issue of whether a party engaged in a common enterprise would be held jointly liable was clear (and even if they weren’t part of a common enterprise, where they both were independently negligent), I had no clue as to whether a hunting party was considered a common enterprise in Ohio and, if there was no law speaking specifically to hunting, what the criteria or factors for determining common enterprise were. The best place to start was Black’s Law Dictionary (8th ed. 2004). Although I had a vague idea as to what a common enterprise was in the realm of torts, I did not have a firm, legal definition. “Common enterprise” turned out to be synonymous with “joint enterprise.” The second definition, for torts, is: “An undertaking by two or more persons with an equal right to direct and benefit from the endeavor…”

Next, I moved on to the American Jurisprudence entry, “Engagement in common enterprise.” 74 Am. Jur. 2d Torts § 61 (2006). I pulled up the document by typing the citation directly into Westlaw’s citation search box. The American Jurisprudence section states succinctly the basic underlying law regarding joint liability for a common enterprise and included a telling illustration which mirrors my fact pattern. It also cites Kuhn following the illustration. However, it does not provide a definition for a common enterprise. I, therefore, focused my search in Ohio Jurisprudence using a Terms and Connectors search for “joint enterprise.” The search yielded 34 results and one, 70 Ohio Jur. 3d Negligence § 103 (2006), defined joint enterprise in a particularly overt way using the following criteria:

1)“Community of interests in the objects and purposes of the undertaking.”

2)Mutuality of control and management

3)Joint responsibility

The Ohio Jurisprudence entry also included a suite of reference to cases in Ohio that discuss the criteria for assigning “joint enterprise” status to a collection of individuals. I examined each of the cases that were cited following the definition above. Unfortunately, none of them contained a definition of “joint enterprise” that did not refer to a contractually-derived joint venture. My particular fact pattern contains nothing of the sort. Therefore, I decided to once again run a search for cases in Ohio. In the Ohio cases database, I utilized as terms and connectors search for “‘joint enterprise’ & hunt!” The search returned 15 documents. The first cases I inspected was Kasunic v. City of Euclid,1988 WL 136014 (Ohio Ct. App. Dec. 15, 1988). The case included a broad definition of “joint enterprise” quoted from Bloom v. Leech, 166 N.E. 137, 137 (Ohio 1929) as “the joint prosecution of a common purpose under such circumstances that each member of such enterprise has the authority to act for all in respect to the control of the agencies employed to execute such common purpose.” More importantly, however, the court in Kasunic excluded two individuals engaged in golf from a joint enterprise. 1988 WL 136014 at *3 n.2. Furthermore, the court in Bloom seems to imply that joint enterprise requires a mutuality of control, which is an issue of fact for the jury to decide. 166 N.E. at 245; accord Zemanek v. Meseroll,1976 WL 189914 (Ohio Ct. App. Aug. 23, 1976). Thus, the issue is one that requires application of specific facts particular to the instant case.

My final step was to look into the two sources I had put aside. The first, B. Finberg, Annotation, Hunter's civil liability for unintentionally shooting another person,26 A.L.R.3d 561 (1969), I researched directly from the library shelves. I picked out 26 A.L.R.3d, which happened to be directly behind where I typically study on the western wall of the main library level. I wanted to use the text to confirm my findings and to see if there were any cases I may have missed from Ohio. Section 8, of the above annotation, provides an overview of cases related to joint tortfeasors. None of the cases are from Ohio. The bottom line seems to be that where the plaintiff cannot tell who fired the shots that struck him, the two defendants are held liable for the whole amount of the damages. The A.L.R.3d supplement failed to include any new relevant cases, although it did include a case where an unarmed member of a hunting party who did not fire a gun would be entitled to summary judgment even if all the remaining members of the party were jointly liable.

The second source was the Restatement (Second) of Torts §§ 875, 876. Section 875 posits the general rule of joint liability in torts, while Section 876 includes a more discrete definition of persons acting in concert (ie. a joint enterprise), but even in Illustration 6 depicts a fact pattern only tangentially similar to the facts at bar. Still, the Restatement appears to be a useful text, similar in effect to legal encyclopedias, in that it provides firm doctrine and illustrations.

Shepardizing v. KeyCiting

The two cases I chose were Kuhn v. Bader,101 N.E.2d 322 (Ohio Ct. App. 1951) and Bloom v. Leech, 166 N.E. 137 (Ohio 1929)

While both KeyCite and Shepardizing provide similar information on treatment history (negative, positive, questionable – both cases have possible negative treatment stemming from single cases that have distinguished) and subsequent citations, they are obviously different in their approach. For Kuhn, for example, both return 17 case citations. Shepardizing provides these 17 cases, however, broken down by jurisdiction, while KeyCite groups them by depth of treatment as indicated by the number of green stars. Both processes do a fine job highlighting any case that distinguishes Kuhn. However, while both return a single case where Kuhn is distinguished, KeyCite yields a different case than Shepardizing. This is disconcerting. While Shepardizing describes McLane v. Stillmaker, 143 N.E.2d 610 (Ohio Ct. App. 1957) as a “distinguished by” case, KeyCite considers it a “Positive Case.” The converse is true for Fed. Mgt. Co. v. Coopers & Lybrand, 738 N.E.2d 842 (Ohio Ct. App. 2000). Based on my limited knowledge of how each system works, I would guess that this discrepancy is a function of the human-component in constructing each system. Assessing whether a case is distinguished by or supported by another case is a matter of human judgment and, given the inherent ambiguity in law, it is possible to have disagreement. More than anything, however, this outcome makes it abundantly clear that one cannot rely exclusively on Lexis or Westlaw to make these assessments.

In reviewing the specific cases that have cited Kuhn, KeyCite, although returning the same number of cases, contains an additional case (this is due Shepardizing citing the same case twice). This case is an unpublished one which Westlaw has published through its online database. Another benefit of KeyCite compared to Shepardizing is the KeyCite flag treatment accompanying each cited case. These provide a glimpse into the legal status of every selected case that has cited Kuhn. For instance, both KeyCite and Shepardizing returned Dold v. Outrigger Hotel, 501 P.2d 368 (Haw. 1972) as a positive citation of Kuhn. However, if I were to just utilize Shepardizing, I would have never immediately known that this particular case is no longer good for at least one point of law, as indicated in KeyCite by a red flag. Obviously, this is merely a matter of efficiency since if I followed the Dold link in Lexis, I would see the red stop sign indicating that the case has negative treatment.

Both services have bells and whistles that allow one to limit the display to positive or negative citations. KeyCite offers a graphical flowchart view of the case as it moves through the court system. Shepardizing provides a number of additional modifiers to describe how other cases have utilized the particular case such as “affirmed” or “followed” (KeyCite tends to group all ambivalent or positive citation uses under “Positive Case”) The major difference, for Kuhn, was in the realm of secondary sources. KeyCite provided a total of 17 secondary sources, while Shepardizing returned a total of 10, though broken down by type. The additional secondary sources from KeyCite included one additional A.L.R. annotation and various legal encyclopedia entries from American Jurisprudence, Ohio Jurisprudence and Corpus Juris Secundum. KeyCite also yielded numerous court documents ranging from appellate motion to appellate briefs. For Bloom, the number of secondary and court documents sources followed the same trend. However, Shepardizing returned 15 more case citations than KeyCite. This is a sizeable number and indicates that while Westlaw may have some additional unpublished cases, it does not exhaust all cases. In fact, upon a perfunctory review, Shepardizing generated at least 4 additional Court of Common Pleas cases. In Bloom, one can see the major advantage of Shepardizing in returning all cases that cited Bloom while KeyCite returned a selection of cases deemed significant by an editor at Westlaw. Still, it is clear that alone each system is deficient.