United States District Court, D. South Dakota, Northern Division
MEMORANDUM AND ORDER
CHARLES B. KORNMANN UNITED STATES DISTRICT JUDGE
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.
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.
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
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.
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.
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.
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.
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.
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.
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.