Tennessee Injury Law Center
Whether out of boredom with teaching the same subject each year or to keep the exam sufficiently different every year to prevent collusion between students, law professors have historically used unusual scenarios as questions in their final exams. But then again, sometimes real life provides the most unusual facts.
Recently, a man in Virginia was tragically killed in a bear-hunting accident. The man was not mauled by the bear because his gun jammed. The man was not killed because of a stray bullet by a member of his hunting party. Instead, the man died when the bear was shot by another member of his hunting party, fell out of the tree and landed on him.
When I read this story, I imagined that Jerry J. Phillips at the University of Tennessee, one of my law school professors, would have loved to put this on his tort law exam. (Professor Phillips was an icon, a link about him is at the end of this post) So, let’s learn a little bit about Tennessee injury and death law by analyzing this in the context of textbook tort law principles
Question 1: Who is to blame for the death of the hunter?
A solid argument could be made that the hunter who shot the bear was negligent and is to blame. Negligence is doing or failing to do what a reasonably prudent person would do under the same or similar circumstances and that action or inaction causes harm to another person. Under Tennessee law, it is not necessary to prove that the hunter who fired the deadly shot knew the bear would fall on and kill another member of his hunting party. It is sufficient to show that he should have been aware of that risk.
A person or animal who is shot dead is no longer able to stand upright or hang onto branches in a tree. Presumably, someone who regularly shoots things dead understands this fact. Therefore, the hunter who fired the deadly shot knew or should have known that the bear was going to fall out of the tree. As such, he should not have fired the deadly shot until the area was clear of anyone who could be in the path of the falling bear.
Question 2: Was the hunter who was killed at fault for his own death?
Under Tennessee law, more than one person can be at fault for an injury or death including the person who was injured or killed. This is known as comparative fault because you are comparing the culpability of more than one person in causing the injury or death.
If the family of the hunter who was killed (the decedent) sued the hunter who filed the deadly shot, the defense would surely argue that the decedent should not have been standing underneath the tree and that he voluntarily placed himself in harm’s way as he also should have known that a bear who has been shot dead is going to fall from the tree. If both hunters were determined to be partially at fault, the deceased hunter’s family could still win the case against the shot-firing hunter if the decedent’s fault was less than fifty percent of the total fault. The damages assessed for wrongful death would be reduced by the fault of the decedent.
So, for example, if the decedent’s fault was determined to be 40% of the total fault and the decedent’s life was determined to be $2,000,000, the at-fault, shot-firing hunter would have to pay 60% of the $2,000,000 (or $1,200,000) to the decedent’s family. The type of matter likely would be covered by the shot-firing hunter’s homeowner’s liability insurance (up to the insurance policy limits).
Question 3: Is the bear responsible for the hunter’s death?
To answer this question, we need to talk a little bit about causation, an unpleasant and difficult topic for a lot of tort law students. Under Tennessee law, there are two types of causation: causation in fact and proximate or legal cause. To prevail in an injury or death case, an injury victim must prove both exist. In the hunting scenario, the bear was, without a doubt, the cause in fact of the hunter’s death. He fell on the hunter and killed him. But the bear was not negligent – he was hanging out in a tree, undoubtedly chased there by the hunters or their dogs. And besides that, Tennessee law does not permit assignment of fault to wild animals.
Extra Credit: Assuming that you could assign fault to the bear, are any other defenses available to the bear?
As mentioned above, you cannot assign fault to wild animals in Tennessee. But, if you could, the bear could assert the defense of sudden emergency. The bear was confronted with a sudden emergency, namely being shot, which excuses his act of falling on and killing the hunter. For the defense of sudden emergency to apply, the bear must not have created the sudden emergency. In this case, the bear did not shoot himself, so he did not create the sudden emergency. Thus, he could use the defense in any lawsuit filed against him or his estate. (Do bears have estates?)
Across the country, university students are returning to school after winter break. We wish you the best of luck with your studies and a safe trip to school. As always, we are here if you need us:
Nashville: 615-669-3993
Murfreesboro: 615-867-9900
Brentwood: 615-742-4880
Toll-Free: 866-812-8787
** Read more about Professor Jerry J. Phillips:
https://ecollections.law.fiu.edu/cgi/viewcontent.cgi?article=1414&context=faculty_publications