Mikula v. Duliba

• Decision Date: 11 July 1983
• Citation: 94 A.D.2d 503,464 N.Y.S.2d 910
• Parties: Jerome H. MIKULA, Appellant, v. William DULIBA, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 910

464 N.Y.S.2d 910

94 A.D.2d 503

Jerome H. MIKULA, Appellant, v. William DULIBA, Respondent.

Supreme Court, Appellate Division,

Fourth Department.

July 11, 1983.

Miserendino, Krull & Foley, P.C., Buffalo, for appellant; Walter Seegert, Buffalo, of counsel.

Cohen, Lombardo, Blewett, Fisher, Hite & Spandau, Buffalo, for respondent; James Hite, Buffalo, of counsel.

Before DILLON, P.J., and CALLAHAN, DOERR, BOOMER and MOULE, JJ.

MOULE, Justice.

The question presented on this appeal is the applicable standard of care in a negligence action based upon a hunting accident.

At trial, the testimony of several witnesses established the manner in which the accident occurred. In late November 1977 plaintiff went hunting on defendant's land where he had previously hunted without defendant's permission. The day was cold and overcast. The area of defendant's land, where plaintiff hunted, was hilly, wooded and covered with thick brush. At the time of the accident, plaintiff was on a sloping bank of a hill surrounded by a row of pine trees which limited visibility to 25 feet in all directions. To increase his field of vision to about 50 yards, he laid down on his stomach to look from underneath the tree branches. While in this position, he was hit in both legs with a single shotgun slug fired by defendant.

Defendant, licensed to hunt in 1977, was an experienced hunter of 28-30 years and had killed 15 or more deer from distances of up to 200 yards. Defendant testified that on the day of the accident he spotted a deer while walking up a roadway. He stalked it by circling around to the right. While circling, he saw it a second time. On the third sighting, defendant saw that it was a six to eight-point antlered deer, weighing approximately 120-150 pounds. At a distance of about 30-35 feet, it turned broadside to him, and he fired a shot. When firing, he was able to see eight to ten yards beyond the target. He lost sight of the deer but thought that he had hit it. Shortly after firing, he heard plaintiff screaming and looked for him. He was unable to see plaintiff until he was within 10-15 feet of him because of the heavy brush. Two members of the fire department, who came to plaintiff's aid, were also unable to see plaintiff until they were within 10-15 feet of him.

An environmental conservation officer testified that a hunter must attend a training course before obtaining a license. The course includes safety practices and procedures. One of these practices is positive identification of the target and background. The Department of Environmental Conservation recommends that a hunter secure the permission of the landowner before hunting on someone's property to insure that the landowner and other hunters know of his presence. In the officer's opinion, it would not be a good practice for a hunter to crawl around on his stomach in heavy brush. The officer also stated that, in his opinion, a shot taken from a distance of 30-50 feet with a sloping bank as a background would be safe.

At the close of the testimony, the jury was instructed, in part, as follows:

"Negligence" is lack of ordinary care; it is a failure to exercise that degree of care which a reasonably prudent person would have exercised under the same circumstances. It may arise from doing an act which a reasonably prudent person would not have done under the same circumstances or, on the other hand, from failing to do an act which a reasonably prudent person would have done under the same circumstances.

Every hunter is under a duty to keep a proper lookout under the conditions then existing to see and be aware of what was in his view and to use reasonable care to avoid an accident. While due care under the circumstances is the rule, the degree of caution required to be exercised in specific situations varies with the time, place, and conditions involved, and with the risks reasonably to be apprehended. The care exercised must be commensurate with the known dangers.

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"Negligence" requires both a foreseeable danger of injury to another and conduct unreasonable in proportion to the danger.

Plaintiff maintains that a higher standard of care than ordinary prudence was required because the accident involved the use of an inherently dangerous instrumentality. He requested that the charge include the following quote from Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 344, 162 N.E. 99: "Some acts, such as shooting, are so imminently dangerous to any one who may come within reach of the missile, however unexpectedly, as to impose a duty of prevision not far from that of an insurer."

The instructions, as given, properly defined the standard of care as that degree of care which a reasonable man of ordinary prudence would exercise under the circumstances, commensurate with the apparent risk involved (see Blanchard v. Noteware, 263 App.Div. 186, 32 N.Y.S.2d 188; Markiewicz v. Thompson, 220 App.Div. 311, 221 N.Y.S. 590, app. dsmd. 246 N.Y. 235, 158 N.E. 314; Havas v. Victory Paper Stock Co., 49 N.Y.2d 381, 385-386, 426 N.Y.S.2d 233, 402 N.E.2d 1136; 5B Warren's Negligence, 1970, Instrumentalities § 1.01, p. 775). The court pointed out that the care required to be exercised must be commensurate with the known dangers and risks reasonably to be foreseen (see Caldwell v. Village of Island Park, 304 N.Y. 268, 274, 107 N.E.2d 441; Bennett v. New York & Queens Elec. Light & Power Co., 294 N.Y. 334, 337, 62 N.E.2d 219).

Although the language used in defining the standard of care sometimes seems to indicate that a higher or more exacting standard is being applied, the standard of care remains that of ordinary prudence under the circumstances; the degree of danger or risk involved is merely one of the circumstances to be considered in determining what ordinary care requires in any given instance (Prosser, Torts § 34, p. 181; 26 A.L.R. 3d 561, 567, § 3). What may be deemed ordinary care under some circumstances becomes negligence under other circumstances, but the standard of ordinary or reasonable care remains the same (see Caldwell v. Village of Island Park, supra, 304 N.Y. at 274, 107 N.E.2d 441; Hegarty v. Railway Exp. Agency, 126 N.Y.S.2d 107, 111, affd. 282 App.Div. 871, 124 N.Y.S.2d 924; Prosser, Torts § 31, p. 149; 57 Am.Jur.2d, Negligence, § 67, p. 418).

The instruction properly defined this...