Intoxicated Hunter

I was injured by a hunter upstate when I was accidentally shot while myself and my companions were camping out on public lands. Fortunately for me, the hunter was shooting buck shot, so I was able to recover from my wounds. My companions reported the incident to park rangers. The park rangers found the offending hunter. The rangers told me that the hunter was drinking prior to the incident. Do I have a claim for my injuries?

Yes, you have a claim. First, if the hunter was shooting for birds with buck shot, he should have been pointing up at the sky where the birds fly, not near the ground where you were walking. It is not reasonable to shoot at birds near the ground. Second, Environmental Conservation Law § 11-1203 prohibits hunters from hunting while intoxicated. The blood alcohol levels for hunters mirror those blood alcohol levels found in the Vehicle and Traffic Law for motor vehicle drivers (Vehicle and traffic Law § 1192). That means if the hunter’s blood alcohol level was .08 of one percent or more by weight of alcohol, the hunter is intoxicated and his capacity to control his physical or mental capacities is impaired due to his alcohol consumption. According to Environmental Conservation Law § 11-1207, blood alcohol levels are admissible at trial, thus that information of the intoxication would be heard by the jury.

The next issue would be to recover damages from a hunter. As explained in previous blogs on  several different topics, collecting judgments from individuals can be difficult, especially if the person is poor. However, if the person was a homeowner, their homeowner’s insurance policy will cover the hunter for this claim. Thus if the hunter is sued, he would turn over the summons to his insurance broker or carrier. The insurance company will hire attorneys to defend the hunter in court. The insurance company will also indemnify the hunter up to the value of the liability insurance policy limits.

Municipal Claims in Parks

I was injured while watching my daughter’s softball game. A foul ball struck me and I needed to be hospitalized. Can I make a claim against the City?

Possibly. Municipal claims are always complicated with multiple levels of substantive rules and procedural rules that make it difficult to bring any case. There are different substantive rules for the location of an accident, whether it occurred on a street, sidewalk, public way or park. There are also complicated procedural rules for municipal claims. All claims must be made in writing within 90 days after the accident to the Comptroller or the Corporation Counsel on an approved form. Claimants must make themselves available for a municipal hearing (something like a deposition) and a physical examination. Then, a summons and complaint must be filed within one year and ninety days after the accident. (Some agencies have different requirements and shorter statute of limitations.)

In the case of your daughter’s softball game, it required some legal research, but it appears that you might have a case. Legal precedents are cases already decided by Courts. Courts write and publish written decisions to guide judges. Courts are obligated to decide cases which have similar facts to have a similar outcome. The legal term for this principal is called Stare Decisis. The difficulty was trying to find a decided case with similar facts to your case.

Your case depends upon where you were standing or sitting when the ball hit you. As it turns out, there was a court case with similar facts to your case. The municipality has a duty to maintain the screening in a park behind home plate. If you were behind home plate and there was no screening or the screening was poorly maintained (with holes so that the softball could pass through and strike fans), then you could have a municipal claim. See Starke v Smithtown, 155 AD2d 526 (2d Dept. 1989). If you were standing or sitting in foul territory down the first or third base lines, then the municipality has no obligation to protect fans.