Tuesday, November 23, 2010

Pick Your Friends Wisely

Lussier v. Bessette, 2010 VT 104

Almost exactly five years ago this day, Rene Lussier, Anthony Bessette, and Adam Reed were hunting with their pal Collin Viens. The group was hunting on Rejean Lussier’s land, which included both woods and fields. Rejean Lussier was sitting in his parked tractor, although it seems that no one walked in his area or was aware that Rejean was out in the field, sitting in the tractor. Rene, Anthony, and Adam were flushing game out of the woods toward a field by walking as a group in a line through the woods. Collin—approximately ten minutes ahead of the others—sat at the edge of the field, rifle in hand waiting for the game to run out of the woods. 

According to the opinion, Collin Viens had no hunting license,* though his friends apparently did not know this. His friends did know that he had passed a hunter safety course and obtained his Hunter Education Certification. Given what happened next, how Collin passed a hunter safety course is anybody’s guess. According to one version of the story, Collin mistook the tractor for a coyote. What actually seems to have happened, though, was that Collin, while sitting in the field waiting for his friends to flush out game, had his rifle to his shoulder, his safety off, and started to look through his scope. To everyone's loss, he saw the tractor and either accidentally or intentionally shot it. His shot hit the tractor and killed its occupant, Rejean Lussier. Collin was convicted of involuntary manslaughter and that conviction was affirmed in 2009.    

Almost exactly three years ago this day, Rejean Lussier’s estate filed a wrongful death action against Collin’s three friends. (Collin was not named as a part of this action.) The suit alleged that the defendants’ reckless hunting plan, combined with Collin’s actions, caused Rejean Lussier’s death. The defendants moved for summary judgment. The trial court granted the motion, concluding that there was no evidence to support a finding of liability on the part of the defendants. Specifically, the trial court found that there was no evidence of a concerted action on the defendants’ part. The estate appealed.

The Court notes that the trial court appeared to follow the Restatement (Second) of Torts’ articulation of concerted action liability in its decision (§ 879). The Court notes that liability for harm caused by another must be premised on some actionable connection between the tortfeasor and the putatively liable party. The test has three possible option. You are liable if you: (1) work with some other varmint to commit the low-down-dirty act; (2) provide some major help or encouragement to the duty-breachin’ varmint, and you know you are doing it; or (3) provide some major help or encouragement to the duty-breachin' varmint while you are breachin’ your own duty to the poor critter. That’s the Yosemite Sam version. If you want the Restatement test—as articulated in Montgomery v. Devoid—it’s in the opinion.

The SCOV then engages in an application of the prongs to these facts that is sure to make any first-year torts professor blush with pride. As to the first prong, the SCOV reasons that some knowledge of the attendant circumstances is required.  Here the Court concludes there was too attenuated a connection between the defendants’ knowledge and Collin’s actions. Collin was ten minutes ahead of the defendants; no one had walked the area where the tractor was parked. The defendants knew that Collin had passed a hunter safety course, and they had no reason to suspect that Collin was out in the field engaging in flagrant hunter-safety violations. Accordingly, the defendants could not be held liable for concerted action under the first prong.

As the second prong, the SCOV concludes that the defendants did not know what Collin was doing and they did not provide "substantial encouragement." Because the defendants had no way of knowing what Collin was up to with his Call of Duty: Vermont antics, there cannot be liability under the second prong. The defendants were flushing game toward Collin, not telling him to shoot at parked tractors.

The Court also rules for the defendants on the third prong. In doing so, the SCOV notes that in previous decisions, it has determined that “the concept of ‘substantial assistance’ [is closely intertwined with] the principle of proximate cause.”  The Court then reiterates that it was Collin’s negligent shooting that caused Mr. Lussier’s death, and there is nothing in the defendants’ actions that would have led to Rejean Lussier’s death as a natural and probable result.  Additionally, the Court concludes that the defendants breached no separate duty to the victim; thus, the defendants cannot be held liable under the third prong.

The Court spends the last few paragraphs the opinion dismissing the plaintiff’s arguments. The plaintiff’s foreseeability argument is that the defendants’ reckless hunting scheme created the risk of the harm that occurred, and that even if Collin’s shot was unforeseeable, the defendants should be held liable for creating the risk. The Court isn’t biting though. It explains that this logic would have the result of turning hunting in a group into a strict liability tort—that no matter the circumstances, every member of a hunting group would be liable for another member’s accidental discharge. In this case, the Court observes that there has been no showing that the defendants’ hunting plan was negligent. Even if that were shown, the Court emphasizes that Collin’s actions were not foreseeable, and that this is the pertinent factor in the foreseeability analysis. It was not like he was the vice-president shooting at what seemed to be game but was in reality a member of the bar in good standing.  

The plaintiff argued that even if Collin’s shooting was an unforeseeable intervening cause, the defendants are still liable because they were acting negligently. Their action created or increased the risk of the harm, and their action was a substantial cause of the harm.  The SCOV agrees that this is a correct statement of the law, but reiterates that the harm was not a natural or probable result of defendants’ actions and so defendants are not liable under this theory either. Finally, the Court states that the plaintiff’s arguments regarding Collin Viens’s willfulness are irrelevant. The Court agrees with the plaintiff that if there was concerted action here, then the defendants could be liable for the shooting even if the shooting was an accidental result of the concerted action.  But because the Court was convinced that there was no concerted action, the Court affirmed the trial court’s grant of summary judgment for the defendants.

* Note, however, that the Court’s previous opinion regarding Mr. Viens’ involuntary manslaughter conviction states, “[H]e had successfully obtained his hunting license through an accelerated hunter education course that summer.” State v. Viens, 2009 VT 64, ¶ 2.