Holliday v. McKeiver, Docket No. 86839

• Decision Date: 09 March 1987
• Docket Number: Docket No. 86839
• Parties: Kenneth A. HOLLIDAY, Plaintiff-Appellant, v. John McKEIVER, Arthur Feltenberg, Walter Jones, and James Russell Boos, Defendants, and Mark Steven Idema and Gordon Dickerson, Defendants-Appellees. 156 Mich.App. 214, 401 N.W.2d 278
• Court: Court of Appeal of Michigan — District of US

Page 278

401 N.W.2d 278

Kenneth A. HOLLIDAY, Plaintiff-Appellant, v. John McKEIVER, Arthur Feltenberg, Walter Jones, and James

Russell Boos, Defendants,

and

Mark Steven Idema and Gordon Dickerson,

Defendants-Appellees.

Docket No. 86839.

156 Mich.App. 214, 401 N.W.2d 278

Court of Appeals of Michigan.

Submitted May 6, 1986.

Decided Sept. 11, 1986.

Released for Publication March 9, 1987.

[156 MICHAPP 215] Ryan & Podein, P.C. by Michael W. Podein, Grand Rapids, for Kenneth A. Holliday.

Linsey, Strain & Worsfold, P.C. by Dale M. Strain, Grand Rapids, for Mark S. Idema.

Bremer, Wade, Nelson & Alt by William M. Bremer and Phillip J. Nelson, Grand Rapids, for Gordon Dickerson.

Before DANHOF, C.J., and HOLBROOK, and DODGE, ^* JJ.

PER CURIAM.

This action arises out of a hunting accident in which plaintiff was struck in the left forearm and left eye by shotgun pellets fired from the guns of one or more of defendants. The eye wound resulted in permanent and total loss of vision in that eye. Because plaintiff could not positively identify who shot him, he commenced suit against all of the hunters who were present. The circuit court granted summary disposition for defendants Idema and Dickerson, from which plaintiff appeals.

[156 MICHAPP 216] Plaintiff was hunting with his stepson and defendants Jones and Feltenberg. Defendants McKeiver, Boos, and Idema were members of another hunting party, though Idema was along only as an observer. He did not have the necessary hunting permit and carried no gun. Dickerson was by himself.

At the starting time for the put-and-take pheasant hunt, the hunters began walking abreast from the parking lot into the designated area. They did this for safety purposes. As plaintiff started to return to the parking area, Boos' dog scared up a pheasant. Several shots were fired; one by either McKeiver or Boos, and several by the other hunters but not by Dickerson. The same or a second pheasant then flew low to the ground and shots were fired by Jones, Feltenberg, or plaintiff's stepson. McKeiver fired a final shot. Within a few seconds, plaintiff yelled out that he had been hit. Subsequent investigation by the Kent County Sheriff's Department failed to reveal who fired the shots actually injuring plaintiff.

Plaintiff claimed that he was entitled to recover from all the hunters because they were engaged in a "concert of action" which resulted in his being shot. Plaintiff also asserted that the hunters violated M.C.L. Sec. 312.10b; M.S.A. Sec. 13.1339(2) by hunting within 150 yards of an occupied building.

Dickerson moved for summary disposition pursuant to MCR 2.116(C)(8) or (10), asserting that he was not a member of any hunting party, did not engage in any "concert or action" with other defendants, and did not shoot prior to plaintiff's injuries. Idema moved for summary disposition on the ground that he was a mere unarmed and unlicensed observer, not engaged in any joint action and with no control over defendants' activities. [156 MICHAPP 217] The circuit court granted summary disposition.

With regard to violations of M.C.L. Sec. 312.10b; M.S.A. Sec. 13.1339(2), it appears to us that the statute is intended to protect the occupants of, or animals housed in, certain structures, not other hunters, so that any violation would not give rise to an inference of negligence. Moreover, while the record fails to reveal exactly how defendants violated the statute, we conclude that, even if defendants violated the statute, any such violation was not the cause in fact or the proximate cause of plaintiff's injuries. Plaintiff was injured because shotgun pellets struck him in the eye and forearm, not because defendants were hunting in a prohibited area. See Klanseck v. Anderson Sales & Service, Inc., 136 Mich.App. 75, 80, 356 N.W.2d 275 (1984), lv. gtd. 422 Mich. 936 (1985); Shepherd v. Short, 53 Mich.App. 9, 11, 218 N.W.2d 416 (1974). Nor could Idema or Dickerson have even violated the statute, as the former had no gun and the latter did not fire his.

For these same reasons, we are not convinced that Idema and Dickerson violated M.C.L. Sec. 752.861; M.S.A. Sec. 28.436(21), concerning reckless discharge of firearms.

A similar causation problem plagues plaintiff's second argument. Plaintiff argues that all defendants should be jointly and severally liable because of their concert of action. The theory of concert of action is a legal fiction whereby all those engaged in a concerted activity can, under certain circumstances, be found to be the cause in fact of a plaintiff's injury although only one person actually caused the injury. To withstand a motion for summary disposition based on a failure to state a cause of action, a plaintiff relying on the concert of action theory need only allege that the defendants[156 MICHAPP 218] were jointly engaged in tortious activity, as a result of which the plaintiff was harmed. If a plaintiff can establish that all defendants acted tortiously pursuant to a common design, they will all be held liable for the entire result. Abel v. Eli Lilly & Co., 418 Mich. 311, 337-338, 343 N.W.2d 164 (1984), cert. den. sub nom E.R. Squibb & Sons, Inc. v. Abel, 469 U.S. 833, 105 S.Ct. 123, 83 L.Ed.2d 65 (1984). Even if a particular defendant caused no harm himself, that defendant is liable for the harm caused by the others because all acted jointly. Cousineau v. Ford Motor Co., 140 Mich.App. 19, 31-33, 363 N.W.2d 721 (1985), lv. den. 422 Mich. 931 (1985), cert den sub nom Firestone Tire & Rubber Co. v. Cousineau, --- U.S. ----, 106 S.Ct. 352, 88 L.Ed.2d 320 (1985). See also Prosser & Keeton, Torts (5th ed), Sec. 46, pp 322-324.

We note that plaintiff is apparently not relying on the legal theory of alternative liability. To meet the eased burden of that theory, a plaintiff must show (1) that all the defendants have acted tortiously, (2) that the plaintiff has been harmed by...