Holzworth v. Smith et al

Filing 50

MEMORANDUM OPINION & ORDER granting 37 Motion for Summary Judgment, defendant Bonnie Turner is dismissed as a defendant. Signed by Senior Judge Thomas B. Russell on 3/11/2015. cc: Counsel(KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:12-CV-188-R
DALE HOLZWORTH,

Plaintiff

v.
MARK SMITH and BONNIE TURNER,

Defendants

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant Bonnie Turner’s Motion for Summary
Judgment. (Docket No. 37). Plaintiff Dale Holzworth has replied, (Docket No. 40), and Turner
has responded, (Docket No. 42). These matters are now ripe for adjudication. For the following
reasons, the Court will GRANT Defendant Turner’s Motion for Summary Judgment.
BACKGROUND
Plaintiff Dale Holzworth (“Holzworth”) brings suit to recover for injuries he allegedly
sustained while deer hunting in Crittenden County, Kentucky. (Docket No. 1). Holzworth
alleges that Defendant Mark Smith (“Smith”) operated a hunting guide service called Bowhunt
West Kentucky Outfitters. On December 18, 2011, Smith took Holzworth on a hunting trip on
land owned by Defendant Bonnie Turner (“Turner”). Smith positioned Holzworth in a tree
stand, which broke from the tree, causing Holzworth to fall more than fifteen feet to the ground
and sustain various injuries.

Holzworth alleges that: Defendants were negligent for not

adequately maintaining, inspecting, and assembling the tree stand and the real property, and for
not ensuring it was safe for the intended purpose; the Defendants acted in concert; and that
hunting is an ultra-hazardous activity, mandating strict liability for Holzworth’s injuries.

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STANDARD
Summary judgment is appropriate where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). In determining whether summary judgment is appropriate, a court must resolve
all ambiguities and draw all reasonable inferences against the moving party. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
“[N]ot every issue of fact or conflicting inference presents a genuine issue of material
fact.” Street v. J. C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989). The test is whether
the party bearing the burden of proof has presented a jury question as to each element in the case.
Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996). The plaintiff must present more than a mere
scintilla of evidence in support of his position; the plaintiff must present evidence on which the
trier of fact could reasonably find for the plaintiff. See id. (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986)). Mere speculation will not suffice to defeat a motion for
summary judgment: “the mere existence of a colorable factual dispute will not defeat a properly
supported motion for summary judgment. A genuine dispute between the parties on an issue of
material fact must exist to render summary judgment inappropriate.” Moinette v. Elec. Data Sys.
Corp., 90 F.3d 1173, 1177 (6th Cir. 1996).
DISCUSSION
Turner brings this motion for summary judgment. She owns land in Crittenden County
upon which Holzworth fell from a tree stand. (Docket No. 37). Turner leased her farm to Phillip
Van Hunt (“Van Hunt”) on January 23, 2003, subject to a Farm Lease Agreement. Id. The
Lease Agreement granted hunting rights to Van Hunt and to Turner’s family, but also stated that
“the lessee shall not assign this lease without the express written consent of the lessor.” Id. Van

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Hunt verbally assigned hunting rights to Smith, but Turner states that Van Hunt never informed
Turner about this arrangement. (Docket No. 37-3). Turner states that she did not know that
Smith placed deer stands on her property. or that he was operating a hunting business on her
property. Both Smith and Van Hunt stated in their depositions that they did not tell Turner about
their activities. (Docket No. 37-4; Docket No. 37-6.).
Turner argues that she is not liable to Holzworth for his injuries beacuse: 1) Holzworth
was a trespasser on her property; 2) there is no evidence to support a “concert of action”; 3) deer
hunting is not an ultra-hazardous activity necessitating strict liability.
1.

Holzworth’s status on Turner’s property

Turner argues that Holzworth was a trespasser on her land, and thus, that she did not have
any obligation to keep Holzworth safe while he was on her land. (Docket No. 37). She states
that the lease with Van Hunt expressly prevented Van Hunt from assigning hunting rights
without her consent. Thus, both Smith and Holzworth were on her land without Turner’s
permission.
In response, Holzworth argues that he was an invitee on Turner’s land. (Docket No. 40).
He argues that Turner had leased the property to Van Hunt to farm, and that in turn, “Van Hunt
contracted with Defendant Smith to exchange hunting privileges for ‘crowd control’ to be
performed by Defendant Smith. Defendant Smith contracted with the Plaintiff and took the
plaintiff upon the subject property to hunt.” Id. Further, Holzworth alleges that “[a]ll the time
Defendant Turner frequently patrolled and inspected the subject property.” Id. Holzworth
argues that because he was an invitee, Defendant Turner was to “use ordinary care to have the
premises in reasonably safe condition.” Id.

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KRS 381.232 states that “[t]he owner of real estate shall not be liable to any trespasser
for injuries sustained by the trespasser on the real estate of the owner, except for injuries which
are intentionally inflicted by the owner or someone acting for the owner.” Id. A trespasser is
defined as “any person who enters or goes upon the real estate of another without any right,
lawful authority or invitation, either expressed or implied, but does not include persons who
come within the scope of the ‘attractive nuisance’ doctrine.” KRS 381.231.
The Court finds that Holzworth has not provided sufficient evidence that Turner
frequently patrolled and inspected the property and was thus aware of the hunting activities. The
relevant portion of Van Hunt’s deposition states:
“Q: You stated that you had observed Ms. Turner on the farm before; is this correct?
A: Yes.
Q: Checking meters at houses?
A: Yes.
...
Q: How often have you seen her out on these farms?
A: Sometimes I might go two months and not see her, and then I might see her a couple
times in a month, you know.”
(Docket No. 37-4). Additionally, Van Hunt clarified that Turner had a house trailer and a
house on the property and “that’s where [Van Hunt would] see [Turner].” Id. Both Smith and
Van Hunt stated that they did not tell Turner about their arrangement. Smith stated that he had
never spoken to Turner before this incident (Docket No. 37-6). Van Hunt stated that he did not
think to refer Smith to Turner regarding hunting rights. (Docket No. 37-4).
Turner’s potential liability depends on whether Holzworth is classified as a trespasser on
the land or as an invitee. Because Turner’s lease with Van Hunt expressly prohibited Van Hunt
from assigning rights without Turner’s permission, Van Hunt’s agreement with Smith was
unlawful. Thus, Smith was did not have the right or authority to invite Holzworth to hunt on
Turner’s land. Because Holzworth fits into the definition of a “trespasser,” see KRS 381.231,
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Turner was not obligated to use ordinary care to keep her land in reasonably safe condition.
Thus, the Court will grant summary judgment for Turner on the negligence claim.
2.

Hunting as an ultra-hazardous activity necessitating strict liability

In his Complaint, Holzworth argues that the Defendants are strictly liable for his injuries
because deer hunting is an ultra-hazardous activity.

According to the Section 520 of the

Restatement Second, Torts, an activity is ultra-hazardous if it: “(1) necessarily involves a risk of
serious harm to the person, land, or chattel of another which cannot be eliminated by the exercise
of the utmost care; and (2) is not a matter of common usage.” See also Collins v. Liquid
Transporters, 262 S.W. 2d 382, 382 (Ky. 1953).
Turner argues that deer-hunting is not an ultra-hazardous activity, (Docket No. 37), and
Holzworth did not respond to her argument, (Docket No. 40). It seems clear that hunting deer is
a matter of common usage, thus the Court will not now hold that it constitutes an ultra-hazardous
activity. Defendants are not strictly liable for Holzworth’s injuries.
3.

Concert of action

Finally, Holzworth alleges in his Complaint that the Defendants “acted in concert by
participating and operating a hunting guide service . . . .” (Docket No. 1). Turner argues that
Holzworth has not shown that she participated in a “concert of action,” (Docket No. 37), and
Holzworth did not respond, (Docket No. 40).
“For harm resulting to a third person from the tortious conduct of another, one is subject
to liability if he (a) does a tortious act in concert with the other or pursuant to a common design
with him, or (b) knows that the other's conduct constitutes a breach of duty and gives substantial
assistance or encouragement to the other so to conduct himself, or (c) gives substantial assistance
to the other in accomplishing a tortious result and his own conduct separately considered,

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constitutes a breach of duty to the third person.” James v. Wilson, 95 S.W.3d 875, 897 (Ky. App.
2002).
The Court finds that Holzworth has not provided sufficient facts to show that Turner
acted in concert with Smith, knew of Smith’s breach of duty and assisted or encouraged Smith,
or gave Smith substantial assistance. See id. Thus, summary judgment is granted for the claim
against Turner for a “concert of action.”
CONCLUSION
For these reasons, and consistent with the Court’s conclusions above,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary Judgment, (Docket No.
37), is GRANTED.
March 11, 2015

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