Remsburg v. Montgomery

Decision Date27 August 2003
Docket NumberNo. 129,129
Citation831 A.2d 18,376 Md. 568
PartiesJames REMSBURG, Sr. v. Charles MONTGOMERY, et al.
CourtMaryland Court of Appeals

Paul N. Finamore (Brett A. Buckwalter, Niles, Barton & Wilmer, LLP, on brief), Baltimore, for petitioner.

Philip J. McNutt (Hughes & Bentzen, PLLC, on brief), Washington, DC, for respondents.




On 28 November 1998, James Remsburg, Jr. ("Remsburg Jr."), during a hunting expedition led by this father, James Remsburg, Sr. ("Remsburg Sr."), accidentally shot and wounded Charles and Brian Montgomery. The Montgomerys timely filed suit in the Circuit Court for Frederick County against the Remsburgs alleging trespass and negligence. Remsburg Jr. settled with the Montgomerys and was dismissed from the suit.

Remsburg Sr. filed a Motion for Summary Judgment. He contended that there were no material facts in dispute and that the Montgomerys failed to assert properly the existence of a legally cognizable duty owed by Remsburg Sr. to the Montgomerys to protect them from the negligent acts of a third party, namely Remsburg Jr. The Montgomerys filed a timely opposition. A hearing was held on 15 April 2001, at which time summary judgment was entered for Remsburg Sr. on all counts. The Montgomerys appealed to the Court of Special Appeals.

The Court of Special Appeals issued a reported opinion on 1 November 2002 affirming the Circuit Court judgment as to the trespass count, but vacating with respect to the negligence claim. Montgomery v. Remsburg, 147 Md.App. 564, 810 A.2d 14 (2002). As to the latter, the intermediate appellate court held that "there were factual disputes material to determining whether Remsburg Sr. owed the Montgomerys a special duty to take preventive measures, either by informing them that they [the Remsburgs] intended to hunt in that area, or by giving Remsburg Jr. enough information to alert him to the possibility that other hunters might be present that morning." Montgomery, 147 Md.App. at 572, 810 A.2d at 19. Remsburg Sr. then filed a petition for writ of certiorari with this Court, which we granted on 12 March 2003 to determine whether Remsburg Sr. owed such a duty to the Montgomerys. Remsburg v. Montgomery, 373 Md. 406, 818 A.2d 1105 (2003).


At approximately 4:30 a.m. on the morning of 28 November 1998, Brian Montgomery arrived at the Frederick, Maryland, house of his father, Charles Montgomery. Brian, an avid hunter, and Charles, who previously had hunted only smaller animals, proceeded to the northerly edge of the father's property where they hid themselves in underbrush awaiting the official start of deer hunting season.1 At approximately 6:00 a.m. the two heard what they determined to be the sound of another hunter taking a position in a nearby tree stand. In order to avoid scaring away any deer in the area, and because legal hunting time did not commence for approximately 20 minutes, the Montgomerys prepared to leave the area without alerting any nearby deer or the newly arrived hunter to their presence.

At or about 6:15 a.m., while preparing to depart from his hidden position, Charles Montgomery moved to massage a leg cramp and was immediately struck by a single projectile. The shotgun slug first grazed Brian's neck, causing a severe abrasion on his neck and temporary deafness, then passed through Charles' upper right arm (injuring the humerus bone, severing the main artery to the upper right arm, and damaging surrounding nerves), before finally lodging in Charles' upper right torso. The Montgomerys soon learned that the shot had been fired by Remsburg Jr., an experienced hunter who, before properly identifying his target and prior to the legal inception of the deer hunting season, had fired from his position in a nearby tree stand. Remsburg Jr., a 27 year old emancipated adult who had participated in over 550 previous hunting outings, was a member of a hunting party organized by his father, Remsburg Sr.

After realizing his mistake, Remsburg Jr. called to his father who was positioned in another tree stand approximately 250 yards away, off the Montgomery property. Remsburg Sr. and other members of the Remsburg hunting party responded to the call. Upon arriving at the scene of the accident, Remsburg Sr. commented, "I guess that rules out telling Jamie [Remsburg Jr.] to shoot at the first thing that moves," and also indicated to Charles Montgomery that he should have been wearing more orange outerwear.

Although the Montgomerys and the Remsburgs respectively were unaware that the members of the other group planned to hunt on that particular section of the Montgomery property on the morning of 28 November 1998, the two families were well acquainted and had a long history of interactions regarding hunting rights on the Montgomery property. For a number of years prior to the pertinent incident, Remsburg Sr. leased hunting rights on the property from James Montgomery, Charles Montgomery's father. This right was granted in exchange for $500, which was paid annually by way of services performed by Remsburg Sr. on the Montgomery farm.2 After James Montgomery's death in 1995, control of the Montgomery farm and property passed to his children, including Charles Montgomery. In the years following James Montgomery's death, Charles Montgomery gave Remsburg Sr. verbal permission to hunt on the Montgomery property; however, Charles asserted in the Circuit Court in this case that he intended to deny Remsburg Sr. permission to hunt on the Montgomery property for the 1998 hunting season, but had not done so because Remsburg Sr. never contacted him prior to 28 November 1998 to secure permission to hunt on the Montgomery property for the approaching deer season.3

Whatever the status of his understanding with the Montgomery family, Remsburg Sr. also entered into a written agreement with Howard Payne, in or about 1997, that provided Remsburg Sr. with rights to hunt on Payne's property adjacent to the Montgomery property. On the morning of the accident in this case, all members of Remsburg Sr.'s hunting party, with the exception of Remsburg Jr., were positioned on the Payne property. As noted supra, Remsburg Jr. was positioned in a tree stand located on the Montgomery property, which stand had been built years earlier by Remsburg Jr.4

In their complaint, the Montgomerys alleged generally that Remsburg Sr. was liable to the Montgomerys for the injuries they sustained as a result of a member of Remsburg Sr.'s hunting party trespassing on the Montgomery property and negligently hunting there. The Montgomerys further alleged that the trespass was at the direction of Remsburg Sr., that Remsburg Sr. negligently breached his duty of care to the Montgomerys by failing to instruct properly his son in hunting safety and otherwise encouraging his son to participate in unsafe hunting practices, and that Remsburg Sr. negligently entrusted his son with a gun.5 Additionally, the Montgomerys charged that Remsburg Sr. owed a duty of care to the Montgomerys by virtue of his joint enterprise and concerted actions with Remsburg Jr.

The Circuit Court granted Remsburg Sr. summary judgment on all counts. In dismissing the negligence action, the judge observed that the element of "duty would have to arise out of a special relationship under Maryland law, and there just simply is no—its not a factual matter, but there's not any relationship that's proffered or pled or presumed under any theory in Maryland law that would support a finding of liability." The judge also noted that there was no Maryland precedent supporting an action for bodily damages as a result of a trespass action.6

On appeal, the Montgomerys argued to the Court of Special Appeals that the Circuit Court judgment was erroneous as a matter of law because a duty was imposed by both Maryland's hunting laws and the long term relationship between Remsburg Sr. and the Montgomery family. Additionally, the Montgomerys contended that the existence of such a relationship "is a matter of factual determination to be decided by the trier of fact," and may not be resolved, therefore, in a motion for summary judgment. They further maintained that summary judgment was granted erroneously because the trial judge drew factual inferences favoring the moving party, Remsburg Sr.

While refusing to hold that Remsburg Sr. owed a per se duty to the Montgomerys, the Court of Special Appeals concluded that a duty may exist if Remsburg Sr. actively induced his son to believe there would be no other persons present in the vicinity on the morning of the accident. Montgomery, 147 Md.App. at 595-96, 810 A.2d at 33. The Court of Special Appeals found that there were material facts in genuine dispute regarding this issue to prevent entry of summary judgment.


Petitioner presents the following questions for our consideration:

(1) whether the Court of Special Appeals applied an incorrect standard of review for summary judgment by considering and relying upon factual proffers that were not supported by, and in some cases were contradicted by, admissible evidence on record;
(2)whether the Court of Special Appeals erred in holding that Remsburg Sr. could owe a duty in tort to the Montgomerys to protect them from the negligent acts of a third party, experienced hunter; and
(3) whether, even if Remsburg Sr. owed a duty to the Montgomerys, the independent act by Remsburg Jr. of shooting was a superceding cause of the Montgomerys' injuries, which relieved Remsburg Sr. of liability.7

Because we find the answer to the second question dispositive of this matter, we reach and decide only that question. We conclude as to that, under the undisputed, material facts of the case sub judice, Remsburg Sr. had no duty in tort to protect the Montgomerys from the negligent acts of Remsburg Jr. Accordingly, we shall reverse the judgment of the Court of...

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