United States District Court, Western District of Kentucky, Paducah Division
MEMORANDUM OPINION AND ORDER
Thomas B. Russell, Senior Judge United States District Court
This matter is before the Court on Defendant Bonnie Turner’s Motion for Summary Judgment. (Docket No. 37). Plaintiff Dale Holzworth has replied, (Docket No. 40), and Turner has responded, (Docket No. 42). These matters are now ripe for adjudication. For the following reasons, the Court will GRANT Defendant Turner’s Motion for Summary Judgment.
Plaintiff Dale Holzworth (“Holzworth”) brings suit to recover for injuries he allegedly sustained while deer hunting in Crittenden County, Kentucky. (Docket No. 1). Holzworth alleges that Defendant Mark Smith (“Smith”) operated a hunting guide service called Bowhunt West Kentucky Outfitters. On December 18, 2011, Smith took Holzworth on a hunting trip on land owned by Defendant Bonnie Turner (“Turner”). Smith positioned Holzworth in a tree stand, which broke from the tree, causing Holzworth to fall more than fifteen feet to the ground and sustain various injuries. Holzworth alleges that: Defendants were negligent for not adequately maintaining, inspecting, and assembling the tree stand and the real property, and for not ensuring it was safe for the intended purpose; the Defendants acted in concert; and that hunting is an ultra-hazardous activity, mandating strict liability for Holzworth’s injuries.
Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
“[N]ot every issue of fact or conflicting inference presents a genuine issue of material fact.” Street v. J. C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989). The test is whether the party bearing the burden of proof has presented a jury question as to each element in the case. Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996). The plaintiff must present more than a mere scintilla of evidence in support of his position; the plaintiff must present evidence on which the trier of fact could reasonably find for the plaintiff. See Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). Mere speculation will not suffice to defeat a motion for summary judgment: “the mere existence of a colorable factual dispute will not defeat a properly supported motion for summary judgment. A genuine dispute between the parties on an issue of material fact must exist to render summary judgment inappropriate.” Moinette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1177 (6th Cir. 1996).
Turner brings this motion for summary judgment. She owns land in Crittenden County upon which Holzworth fell from a tree stand. (Docket No. 37). Turner leased her farm to Phillip Van Hunt (“Van Hunt”) on January 23, 2003, subject to a Farm Lease Agreement. Id. The Lease Agreement granted hunting rights to Van Hunt and to Turner’s family, but also stated that “the lessee shall not assign this lease without the express written consent of the lessor.” Id. Van Hunt verbally assigned hunting rights to Smith, but Turner states that Van Hunt never informed Turner about this arrangement. (Docket No. 37-3). Turner states that she did not know that Smith placed deer stands on her property. or that he was operating a hunting business on her property. Both Smith and Van Hunt stated in their depositions that they did not tell Turner about their activities. (Docket No. 37-4; Docket No. 37-6.).
Turner argues that she is not liable to Holzworth for his injuries beacuse: 1) Holzworth was a trespasser on her property; 2) there is no evidence to support a “concert of action”; 3) deer hunting is not an ultra-hazardous activity necessitating strict liability.
1. Holzworth’s status on Turner’s property
Turner argues that Holzworth was a trespasser on her land, and thus, that she did not have any obligation to keep Holzworth safe while he was on her land. (Docket No. 37). She states that the lease with Van Hunt expressly prevented Van Hunt from assigning hunting rights without her consent. Thus, both Smith and Holzworth were on her land without Turner’s permission.
In response, Holzworth argues that he was an invitee on Turner’s land. (Docket No. 40). He argues that Turner had leased the property to Van Hunt to farm, and that in turn, “Van Hunt contracted with Defendant Smith to exchange hunting privileges for ‘crowd control’ to be performed by Defendant Smith. Defendant Smith contracted with the Plaintiff and took the plaintiff upon the subject property to hunt.” Id. Further, Holzworth alleges that “[a]ll the time Defendant Turner frequently patrolled and inspected the subject property.” Id. Holzworth argues that because he was an invitee, Defendant Turner was to “use ordinary care to have the premises in reasonably safe condition.” Id.
KRS 381.232 states that “[t]he owner of real estate shall not be liable to any trespasser for injuries sustained by the trespasser on the real estate of the owner, except for injuries which are intentionally inflicted by the owner or someone acting for the owner.” Id. A trespasser is defined as “any person who enters or goes upon the real estate of another without any right, lawful authority or invitation, either expressed or implied, but ...