Holliday v. Bannister

741 P.2d 89, 1987 Wyo. LEXIS 479
CourtWyoming Supreme Court
DecidedAugust 3, 1987
Docket86-235
StatusPublished
Cited by15 cases

This text of 741 P.2d 89 (Holliday v. Bannister) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Holliday v. Bannister, 741 P.2d 89, 1987 Wyo. LEXIS 479 (Wyo. 1987).

Opinions

RAPER, Retired Justice.

This appeal arises as a result of a summary judgment for appellee granted by the district judge in a wrongful death action prompted by a hunting accident.

Appellant views the issues to be:

1. “Did the district court err in granting defendant/appellee’s motion for summary judgment where the court was of the opinion that if the court went to trial with what was before it at the summary judgment hearing, the court would direct [90]*90a verdict for defendant/appellee on the issues that have been raised?”
2. “Did the district court err in holding that there was no genuine issue of material fact as to the existence of a joint enterprise between Gene Bannister and Steven Bannister, there being shown no direction or control, so as to support the imputation of the negligence of one of the members of the enterprise to the other?”
3. “Did the district court err in holding that there was no genuine issue of material fact as to the existence of an agency or master/servant relationship between Gene Bannister and Steven Bannister, there being shown no direction or control, so as to support the imputation of the negligence of the agent/servant to the principal/master?”

Appellee sees the issues as:

“1. Whether in granting the Motion for Summary Judgment the trial court applied the correct standard upon which to base its ruling of Summary Judgment in favor of this Appellee?
“2. Whether the Appellant, at the time of the hearing on Appellee’s Motion for Summary Judgment, raised any genuine issue of material fact to the trial court about the existence of a joint enterprise as between Appellee Gene E. Bannister and his son, Steven R. Bannister?
“3. Whether, at the time of the hearing on Appellee’s Motion for Summary Judgment, the Appellant raised any genuine issue of material fact about the existence of an employer-employee or master-servant relationship as between Appellee Gene E. Bannister and his son, Steven R. Bannister?”

The issues boil down to whether the ap-pellee can be held, as a matter of law, vicariously liable for the negligence of his son, Steven Bannister, under the facts of this case about which there is no genuine issue.

We will agree with the district judge that summary judgment was proper and affirm.

Following the hearing before the district court, the district judge entered an order in pertinent part as follows:

“3. That based upon the record currently before the Court, there was on September 6, 1983, no master-servant relationship as between Gene E. Bannister and Steven R. Bannister, there being shown no direction or control, and that therefore there is no vicarious liability on the part of Gene E. Bannister for any negligence as may be found against the Defendant Steven R. Bannister in the captioned action;
“4. That on or before September 6,1983 there was no joint venture or joint enterprise as between the Defendants Gene E. Bannister and Steven R. Bannister, there being shown no direction or control[;] “5. That while the Court realizes that whether or not there is evidence of negligence is traditionally a question for a jury, the Court finds that reasonable men could not differ in their conclusion that any violation of statute by Gene E. Bannister as alleged by the plaintiff was not the proximate cause of the death of Lance Lanum; there appearing in the record to be an efficient intervening cause and that as a matter of law, and in accord with Hall v. Booth, 423 [So.2d] 184 (Ala.1982), the plaintiffs have failed to show that any violation of the statute by Defendant Gene E. Bannister was a proximate cause of the death of Lance Lanum or that the death of Lance Lanum was foreseeable by the Defendant Gene E. Bannister[.]”

When reviewing a summary judgment, the Supreme Court has the same duty, reviewing the same material and analyzing the same standards, as the district court. Wyoming Recreation Commission v. Hagar, Wyo., 711 P.2d 402 (1985). We therefore have the duty of examining the entire record before determining whether the summary judgment was appropriate and “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Rule 56(c), W.R.C.P. In going through this exercise, we must look at the record from a vantage point most favorable to the party opposing the motion for summary judgment, giving him every favorable inference [91]*91which may be drawn from the depositions, affidavits and other material properly submitted in the record. Olson v. A.H. Robins Company, Inc., Wyo., 696 P.2d 1294 (1985).

The record before the trial court and now this Court discloses that appellee and his son, Steven, in the fall of 1983, were experienced hunters and had hunted together some 30 or 40 times. It was appellee who had taught Steven how to hunt and the fundamentals of firearms and hunting safety from the time Steven was a child. Appellee considered himself to be very close to his son, Steven. Each knew the hunting abilities of the other.

The material in the file shows appellee to be a very experienced hunter. He had previously drawn three Wyoming big horn sheep permits and had bagged two sheep. He had guided other hunters in Wyoming. He had seen and recognized “buck fever” in other hunters but had never seen it in his son, Steven, whom he considered to be an excellent shooter. There is no evidence that Steven had ever before been involved in a hunting accident of any kind.

The area in which they were hunting was not strange to them. Steven had hunted there before with his father, appellee, his wife or with a family friend, Roy Coleman, six or seven times.

The depositions and other material gave no reason for appellee to expect that his son would accidentally shoot another hunter. Steven was a responsible adult, 25 years of age at the time and a high school graduate. Steven had never before been charged with a crime other than speeding citations and had no game and fish violations.

Steven Bannister, during and after graduation from high school, worked in a hardware store owned by his father and there sold firearms. Thereafter, he worked in a sporting goods store where he also sold hunting, fishing and camping equipment including firearms. He considered himself knowledgeable about firearms and their uses, had done some reloading of shotgun shells, had read reloading manuals for rifles and had owned several firearms, in-eluding a 30-06 rifle. He sighted in the magnum 300 Weatherby rifle which he borrowed from his father and advised his father of the fact that he had sighted in the firearm. Steven liked that firearm because of its additional range. Appellee did not use that particular rifle much because of its heavy “kick” when fired and preferred the 30-06 he took along.

Appellee believes he received notice sometime in July or August 1983 that he had drawn a sheep permit. While he did not specifically recollect, he testified that he believed he probably called his son, Steven, and advised him he had received a sheep permit. He also testified that he believed he had also called his other sons and asked if they too wanted to go on the hunting trip.

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Holliday v. Bannister
741 P.2d 89 (Wyoming Supreme Court, 1987)

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Bluebook (online)
741 P.2d 89, 1987 Wyo. LEXIS 479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holliday-v-bannister-wyo-1987.