Deese v. McKinnonville Hunting Club, Inc., 1D03-2157.

• Decision Date: 18 June 2004
• Docket Number: No. 1D03-2157.,1D03-2157.
• Citation: 874 So.2d 1282
• Parties: Charles Van DEESE, as personal representative of the estate of Parker Deese, Appellant, v. McKINNONVILLE HUNTING CLUB, INC., Appellee.
• Court: Florida District Court of Appeals

874 So.2d 1282

Charles Van DEESE, as personal representative of the estate of Parker Deese, Appellant, v. McKINNONVILLE HUNTING CLUB, INC., Appellee.

No. 1D03-2157.

District Court of Appeal of Florida, First District.

June 18, 2004.

William Rankin, Esq. of Kerrigan, Estess, Rankin & McLeod, LLP, Pensacola; Louis K. Rosenbloum, Esq. of Louis K. Rosenbloum, P.A., Pensacola, for Appellant.

Robert C. Palmer, III, Esq. of Shell, Fleming, Davis & Menge, P.A., Pensacola, for Appellee.

LEWIS, J.

Appellant, as the personal representative of Parker Deese, appellant's deceased son (the "decedent") seeks review of the trial court's Summary Final Judgment entered in favor of appellee, the McKinnonville Hunting Club, Inc. Appellant argues on appeal that the trial court erred in granting appellee's motion for summary judgment because issues of fact remain as to whether appellee's alleged negligence in operating a dog hunt near a road having a fifty-five-mile-per-hour speed limit was the proximate cause of the decedent's death. We agree and, therefore, reverse and remand for further proceedings.

On December 19, 1998, appellant and the decedent, who was then twelve years old, participated in a hunt organized and conducted by appellee in which dogs were used to drive deer through land¹ in Escambia County that was leased to appellee by Champion Paper Company ("Champion") toward County Road 99 ("CR 99"), which is a two-lane highway having a speed limit of fifty-five-miles-per-hour. According to appellant, who was a member of appellee's hunting club at the time of the decedent's accident, he and the decedent were on the east side of CR 99 during the first drive hunt and had been told by appellee's president to move to the west side of CR 99 for the second drive hunt. Because appellant was unsure as to where he needed to park his truck for the second hunt, appellant followed a fellow hunter, J.B. Mahan, in his truck which, at that point, held appellant, his wife, his young daughter, and the decedent. Mahan pulled out from the east side of CR 99, and appellant pulled out from the west side of CR 99 heading south. After following Mahan for "a couple hundred yards," Mahan informed appellant via radio that they needed to back up to catch some of the dogs that were beginning to come out of the woods from the last drive. Appellant then pulled onto the west side of CR 99 and noticed Mahan and his granddaughter on the east side of CR 99 attempting to catch dogs that were running "everywhere." According to appellant, club members were directed to try to catch the dogs when possible. While sitting on the side of CR 99, the decedent sought appellant's permission to help catch the dogs. Although appellant initially denied the decedent's request, appellant shortly thereafter told the decedent that he could help catch the dogs. Appellant was in the process of turning back around in his seat after having given the decedent permission to catch the dogs when the decedent opened the door and "t[ook] off." The decedent, who exited the truck through the driver's side door, was struck by a vehicle traveling in the northbound lane of CR 99 and died three days later. According to appellant, only two or three minutes elapsed between the time he pulled off onto the side of CR 99 and the moment in which the decedent exited the truck.

Appellant subsequently filed suit against appellee, alleging that appellee breached its duty to promulgate, draft, and enforce rules and regulations to ensure that club activities would be conducted in the safest manner possible and that, as a direct and proximate result of such negligence, the decedent was struck by a vehicle and died. As affirmative defenses, appellee asserted that the decedent was negligent in crossing the road, which caused or contributed to his death, and that any damages suffered by appellant were the result of his actions or omissions, which caused or substantially contributed to the decedent's death. In response to appellant's request for admissions, appellee admitted, inter alia, the following: (1) that it had a duty to promulgate, draft, and enforce rules and regulations that would cause members to hunt and conduct activities on the leased property in a reasonable manner reducing the possibility of death and injury to members and their families or others; (2) that it had a duty to conduct activities in compliance with the club's rules and regulations; (3) that it was advised by Champion that a hunting party must be large enough to handle the dog pack effectively; and (4) that it has no specific rules or regulations about hunting with children. While appellee admitted that it was advised by Champion that a huntmaster who is not hunting must be in control of the hunt, appellee averred in its response that one of Champion's employees had orally amended this requirement. Although appellee admitted that it was advised by Champion that a core dog hunt area would be identified on a map, it denied that this was done by Champion. While appellee admitted that members' vehicles were parked on the side of the roadway during hunts, it asserted that this occurred only so long as the vehicles were not on the legal right-of-way. Appellee denied that Champion specified that areas between the dog hunt core area and the external boundary should be designated as still-hunting only, that it had no rules or regulations addressing the danger of dog hunting on paved highways, that it would, on occasion, drive the deer with dogs towards paved roadways within and bordering its leased areas, and that the members would line up adjacent to the roadway with guns in an effort to shoot at deer that are driven towards the road by the hunting dogs.

The record contains a letter dated December 3, 1986, from Champion to appellee's then-treasurer explaining that Champion had received specific complaints concerning appellee's members hunting immediately adjacent to CR 99. Because Champion considered the possibility of injury so great, it added the following clause to every hunting lease that year:

No officer, member, employee or guest of the Lessee will conduct any hunting activity within 100 feet of any federal, state or county road right-of-way. The same rules that apply to hunting activity on a public road right-of-way will, for Champion's purposes, extend the additional 100 feet onto Champion property.

Several of Champion's prior employees, who testified via deposition that they had received numerous complaints over the years that appellees' members trespassed on other people's property and hunted on the roadways, also testified that appellee's members were only supposed to hunt in appellee's core area. Champion's Styx Forest Dog Retention Policy for the 1997-1998 hunting season explained:

A core dog hunt area will be identified on a map. Areas between the dog hunt core area and the external boundary should be designated as still hunting only. This will give clubs a second opportunity to capture any dogs missed on the edge of the core area and minimize trespassing complaints. This will also allow the hunting party to hunt deer more, and dogs less, by keeping the dogs to a smaller more confined area.

Mark E. Free, a former forest representative for Champion, testified that the hunting that occurred on the day of the decedent's accident took place in a highly critical area notwithstanding the fact that such areas were to be avoided. Other prior employees of Champion testified that Champion had provided appellee with a map designating those areas and that no one had told appellee that Champion's rules could be ignored. Kenneth Watson, a law enforcement lieutenant with the Florida Fish and Wildlife Commission, who testified via deposition that he had received complaints dating back to 1983 concerning appellee's dogs trespassing on neighbors' property and appellee's members hunting along the roadways, also testified that he agreed with one of Champion's employees that appellee was the worst hunting club in Escambia County.

W.H.F. Wiltshire, whom appellant listed as an expert, testified via deposition that he had been hunting since he was five years old and had been a member of a different hunting club since 1969. In Wiltshire's opinion, appellee did not plan the hunt on the day of the accident. Rather,

"[t]hey just got together that morning, and somebody in the group said `let's hunt that particular area,' and that's where they went." Wiltshire also opined that a huntmaster should have been appointed to handle the hunt on the day of the accident, that the hunt drive should not have been operated towards CR 99, and that the hunters should not have been placed in the right-of-way during the period of time when the two drives were taking place. Wiltshire thought it equally troubling that appellee was intending to run the dogs towards the highway and to catch the dogs on the highway, practices which are dangerous to the dogs, traffic, and those attempting to catch the dogs.

J.B. Mahan testified via deposition that it was not uncommon for the hunting dogs to cross the road during the hunts. Lonnie Majors, appellee's president at the time of the accident, similarly testified via deposition that the club's dogs had been killed on the roadways in the past. When asked if there was a pretty good chance of dogs winding up in the road when hunting adjacent to the road in the area where appellee's members were on the day of the accident, Majors replied, "There's always the chance." Majors then acknowledged that there was a reasonable chance that the dogs would "get into the area of the road." According to Majors, although he had been designated as the huntmaster on the day of the accident, he had hunted along with appellee's other members.

Thereafter, appellee filed a motion for summary judgment, arguing that the record conclusively demonstrated that there was no direct causal relationship between any act or omission on behalf of ...