RICHMOND, Va. (Legal Newsline) - A Virginia statute that grants landowners broad immunity from lawsuits over recreational activities on their property including hunting doesn’t apply in a case where the grandson of the owners accidentally shot to death a woman in a neighboring home, the Virginia Supreme Court ruled.
In a decision that drew a strong dissent from three of the court’s seven justices, the majority ruled that Virginia’s Recreational Land Use Act must be interpreted strictly to cover only the enumerated activities in the statute. While the law says landowners can’t be sued in most cases over hunting, or be held responsible for the actions of others on their land, the fact “target shooting” doesn’t appear in the law means that isn’t covered.
“Hunting and target shooting are different,” the court ruled in a March 25 decision by Justice Stephen McCullough. “The legislature made a choice to distinguish between certain activities.”
Justice D. Arthur Kelsey dissented, saying the majority relied upon a “crabbed interpretation” of the law that ignores the intent of Virginia legislators to protect landowners against this kind of lawsuit. The law has repeatedly been revised since first passage in 1962, with lawmakers adding various recreational activities including foxhunting but also the catchall phrase “any other recreational” users.
The statute “promotes a broad public policy that the General Assembly has expressly and progressively advanced for nearly half a century,” the dissenting justice wrote. “With certain exceptions, landowners should not be liable for simple negligence of recreational users who use their land.”
The case arose from the accidental shooting death of Gina Shoemaker, who was killed while visiting her mother in 2014. Richard and Anna Funkhauser gave their adult grandson, Shawn Jason Nicely, permission to shoot targets with a rifle on their nearly eight-acre property but a bullet carried off the property and killed Shoemaker.
The administrator of Shoemaker’s estate sued the Funkhausers, saying they gave Nicely permission to shoot in the direction of her house and knew it could be dangerous. The Funkhausers argued they didn’t owe any duties to their neighbors, citing principles of common law that protect people against liability for the actions of others in most cases. They also cited the Recreational Land Use Act, with its protection against liability for hunting activities.
A trial court dismissed the suit, but the Virginia Supreme Court reversed. The majority first found that an exception to the general protection against liability for the actions of third parties could be found in the Restatement of Torts, a text laying out common law principles.
The restatement says landowners can be liable if they are “present” and able to control the actions of people invited on to their property, and in a side note suggests “present” might be merely in the vicinity. Since the Funkhausers were on their property when the shooting occurred, the majority ruled, they could be considered “present.”
The dissenters disagreed, saying the majority extended the restatement too far. When it was written the so-called “reporter” wanted to change “present” to “in the vicinity,” Justice Kelsey wrote, but was overridden.
“The Reporter’s `in the vicinity’ dictum should not be considered an authoritative restatement of the common law,” he wrote. “If a police officer had asked Nicely if his grandparents were present with him when he fired the fatal shot, would any one of us criticize Nicely if he replied, `no, they were back at the house’? Surely not.”
The majority also found that the section of the statute enumerating uses protected against liability must be read to include only those uses in the context of liability for the actions of invited visitors. The dissent again disagreed, saying the history of revisions to the law made it clear legislators wanted a broad understanding of protection, not a narrow list of activities.