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.

Accidents on Undeveloped Land

I was injured when I was driving an all-terrain vehicle (ATV) upstate. Can I bring a claim for my injuries?

You probably will not a claim for your injuries. Although, as explained later, there may be certain circumstances in which you can bring a claim, using ATVs generally exclude you from any claim against the landowner.

Although all landowners have the common law duty to all people on their land of “reasonable care.” (As mentioned in some of the prior blogs, a common law duty is imposed by Courts on certain people based on many Courts’ decisions over decades. These decisions over time become duties imposed on people subject to the Court’s jurisdiction.) The exception to the common law duties imposed by Courts can be found in statues enacted by the legislature and governor.

In this case, a private land owner has no obligation to keep a premises safe when the person on the land is engaging in certain recreational activities. General Obligations Law § 9-103. So if a person is injured on property while hunting, fishing, canoeing, trapping, hiking, boating, canoeing, horseback riding, bicycle riding, hang gliding, snowmobile operation and ATV riding, then the owner of the property has no obligation to make the land safe for any of these purposes. Thus, the property owner has no obligation to clear paths (and possible pave them) so an individual can safely ride an ATV.

There are exceptions to this rule. One exception would be if the landowner charged for people to ride ATVs on the land. But your question did not mention any fee was paid for permission to ride an ATV on the land. A second exception would be for some willful or malicious condition. Again, the question did not mention any concealed malicious trap set on the land to disrupt the ATV rider and cause injuries. It was just typical wooded upstate property.

This case becomes even more complicated if the accident occurred on New York State land. If the State of New York is a possible defendant, all claims must be brought in the Court of Claims (a separate Court different than the Supreme Court, the Court of Claims handles only cases against the State of New York). There are also short statute of limitations to bring claims against the State. All claims against the State must present a “Claim for Damages” followed by a filing of the lawsuit in the Court of Claims. The State also has certain defenses that an ordinary citizen or company does not have.