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Wimmer v. Top Gun Guide Service, Inc.

United States District Court, D. South Dakota, Northern Division

October 28, 2019

ANTHONY WIMMER, Plaintiff,
v.
TOP GUN GUIDE SERVICE, INC., JOHN DOES 1-5, Defendants.

          MEMORANDUM AND ORDER

          CHARLES B. KORNMANN UNITED STATES DISTRICT JUDGE

         This matter is before the Court on defendant Top Gun Guide Service, Inc.'s ("Top Gun") motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. Doc. 14.

         BACKGROUND

         This case arose from injuries that plaintiff Anthony Wimmer sustained while on a hunting trip hosted by defendant Top Gun near Aberdeen, South Dakota in April of 2015.

         Doc. 1 at 2; Doc. 6 at 1. Mr. Wimmer is a California resident and Top Gun is a Minnesota corporation. Id. On or about April 9, 2015, Mr. Wimmer arrived in Aberdeen, though he did not hunt on that day. Doc. 15 at 5; Doc. 22 at 1. At some point on April 9th, Mr. Wimmer signed a waiver purporting to release Top Gun from liability arising from the hunting trip. Doc. 15 at 5; Doc. 22 at 2. The release form provided, in pertinent part:

I acknowledge that hunting and fishing entails known and unanticipated risks which could result in physical or emotional injury, paralysis, death, or damage to myself, ... I understand that such risks are essential qualities of the activity. The risks include, among other things: Accidental shootings, or falls to myself. . . trip or fall accidents to myself. . . medical problems from preexisting conditions ... to myself... I expressly agree and promise to accept and assume all of the risks existing in this activity. My participation in this activity is purely voluntary, and I elect to participate in spite of the risks to others and myself, I fully understand that hunting and fishing is a dangerous activity. I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless [Top Gun] from any and all claims, demands, or causes of action, which are in any way connected with my participation in this activity or my use of [Top Gun] equipment or facilities, including any such claims which allege negligent acts or omissions of [Top gun].

Doc. 17, Ex. D. The parties agree that in his deposition Mr. Wimmer testified that he read the release before signing it and that he did not disagree with anything contained therein. Doc. 15 at 6; Doc. 22 at 2-4. Mr. Wimmer also agreed in his deposition that hunting and fishing is a dangerous activity. Anthony Wimmer Dep. at 41:7-9.

         On April 10th, Mr. Wimmer arrived at the hunting site and began setting up hunting decoys. Doc. 15 at 7; Doc. 22 at 5. Shortly after having finished setting up the decoys, Mr. Wimmer was standing in the field where the hunt was to take place when he was struck from behind "by either an [all terrain vehicle (ATV)] or sled." Id. The sled was being towed behind the ATV. Id. The ATV was being operated by a Top Gun guide. Id- The accident occurred between 3:30 a.m. - 4:30 a.m. Doc. 15 at 4. Mr. Wimmer alleges that he sustained severe injuries. Doc. 1 at 2.

         Defendant argues that "[b]ecause Mr. Wimmer knowingly, voluntarily, and fairly signed a release that unambiguously covers the injuries that he suffered and that does not contravene public policy," his claims should be dismissed with prejudice. Doc. 15 at 8. Defendant contends that the liability waiver Mr. Wimmer signed before participating in the hunt releases Top Gun from all liability in relation to the ATV accident. Id. In short, Top Gun's argument relies on the liability waiver being found to encompass the harm at issue in this case. Defendant then proceeds to argue that the waiver is valid and its enforcement would not contravene South Dakota's public policy. Id. at 9-11. Defendant argues that releases involving voluntary recreational activities have withstood attacks that they are contrary to South Dakota's public policy many times before; only an attempted waiver of conduct rising to the level of willful negligence or intentional tort would contravene the state's public policy. Id- at 11. Because Mr. Wimmer does not allege willful negligence or any intentional torts, defendant argues that his claims must fail. Id.

         Plaintiff responds that the harm that befell him was outside the scope of the waiver. Plaintiff argues that he had no meaningful opportunity to negotiate the terms of the waiver and so it must be viewed as an "anticipatory release and contract of adhesion, which should be viewed with a skeptical and critical eye," and any ambiguities should be construed against the drafter. Doc. 20 at 5. Plaintiff argues that the waiver, by its terms, only applies to the limited activities of hunting and fishing. Id. Plaintiff argues that his are not hunting injuries because, at the time of the accident, he had already finished setting up the decoys and was merely standing in the field waiting to be told what he should do next. Id. at 6. Plaintiff urges that such activity should not be considered hunting. Id.

         Plaintiff next argues that even if he was hunting at the time of the accident, the release is contrary to South Dakota law as it purports to waive liability for acts of gross negligence and, so, enforcing it would be against South Dakota's public policy. Id. at 7. Plaintiff also argues that provisions of South Dakota law related to motor vehicle liability preclude enforcement of the waiver as against the state's public policy. Id. at 9.

         Defendant replies that plaintiffs reading of the waiver is too narrow, the terms of the waiver are broad enough to cover any injury "in any way connected with" the activity of hunting. Doc. 23 at 3. Thus, defendant contends, the terms of the waiver apply to plaintiffs injury whether or not he was actively shooting or pursuing birds at the time of the injury. Id. Defendant further contends that setting up decoys is a part of pursuing birds, which is within the definition of hunting adopted in South Dakota's laws. Id. at 4.

         Defendant also argues that enforcing the release against plaintiff would not violate South Dakota public policy because plaintiff only claims ordinary negligence, liability for which may be waived. Id. at 5. Defendant argues that plaintiff has produced no evidence that defendant's agent operated the ATV in a reckless or willfully negligent manner. Id. at 6-7. Defendant argues that there was no disparity in bargaining power that would warrant this waiver being viewed as a contract of adhesion. Id. at 7. Finally, defendant argues that the waiver does not allow Top Gun to circumvent South Dakota's motor vehicle insurance laws, as plaintiff has claimed, and enforcing the waiver would not be contrary to the public policy those laws espouse. Id. at 8.

         LEGAL ...


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