Supreme Court, Monroe County, June 24, 2022

Trevett Cristo (Alan J. De Peters of counsel) for plaintiff.

Kenney Shelton Liptak Nowak LLP (Richard T. Saraf of counsel) for defendant.

In this tragic case, plaintiff Patricia Herrington moves for summary judgment on her complaint (and seeks to dismiss the affirmative defenses raised by the defendant in his answer) which alleged that defendant negligently shot and killed her husband (and defendant's brother-in-law) while defendant was{**76 Misc 3d at 791} hunting. For the reasons set forth below, the plaintiff has established that she is entitled to summary judgment on the complaint and on her motion to dismiss all of the defendant's affirmative defenses.

A party seeking summary judgment pursuant to CPLR 3212 must make a prima facie showing of entitlement to judgment as a matter of law and submit sufficient evidence to demonstrate the absence of any material issue of fact. (William Iselin & Co. v Mann Judd Landau, 71 NY2d 420 [1988].) Summary judgment may only be granted when "it has been clearly ascertained that there is no triable issue of fact outstanding; issue finding, rather than issue determination, is its function." (Matter of Suffolk County Dept. of Social Servs. v James M., 83 NY2d 178, 182 [1994].) Only when the proponent demonstrates entitlement to summary judgment, the opposing party must then demonstrate, generally by admissible evidence, the existence of an issue of fact requiring a trial. (Zuckerman v City of New York, 49 NY2d 557 [1980].)

The facts are largely undisputed. On June 8, 2018, Todd Herrington, his son Devin, the defendant John Tompkins (plaintiff's brother), and Robert Westcott were in Béarn, Quebec, Canada on a fishing and hunting trip. Each of them had a designated area for hunting that was a significant distance away from the others.^[FN1]

In the afternoon of June 8th, defendant Tompkins went bear hunting, driving to his hunting location using an all-terrain vehicle (ATV) that had been having mechanical issues earlier that day.^[FN2] As it approached sunset, defendant Tompkins had not returned to the cabin where the party was staying. Todd Herrington drove his own ATV on a logging road to the area in which defendant Tompkins was hunting and parked his ATV alongside defendant Tompkins' ATV on the side of the road and waited for defendant Tompkins to exit the woods.^[FN3]

At or around sunset, defendant Tompkins began walking back to his ATV. As he approached the ATVs, he saw a figure{**76 Misc 3d at 792} near the ATVs. Believing it was a bear, he whistled and waived his hands in the air. Seeing some movement, he discharged his rifle, striking Todd Herrington and killing him instantly.^[FN4]

On June 11, 2018, defendant Tompkins was charged with criminal negligent use of a firearm resulting in death, manslaughter, and careless use of a firearm.^[FN5] The parties dispute what occurred during the Canadian criminal proceedings. Defendant Tompkins argues that he was found guilty on November 15, 2019, and was sentenced to probation on August 14, 2020,^[FN6] while plaintiff argues that defendant Tompkins pleaded guilty to the charge of careless use of a firearm and was sentenced on August 14, 2020. The dispute is immaterial to the issues herein. As set forth below, the criminal action terminated with the imposition of sentence on August 14, 2020. (CPL 1.20 [16].)

Thus, the plaintiff has met her burden in establishing the absence of any material issue of fact (William Iselin & Co. v Mann Judd Landau) and her entitlement to summary judgment on her causes of action. (Pachan v Brown, 204 AD3d 1435 [4th Dept 2022].) Having done so, the burden shifts to the defendant to show, by admissible evidence, the existence of an issue of fact requiring a trial. (Zuckerman v City of New York.)

The defendant argues that there is sufficient evidence supporting three of his affirmative defenses that would preclude the granting of summary judgment for the plaintiff.^[FN7] Defendant alleged in his first affirmative defense that Todd Herrington was comparatively negligent; in his second affirmative defense that Todd Herrington assumed the risk of his injuries; and in his eleventh affirmative defense that the action was barred by the statute of limitations.^[FN8]

As a preliminary matter, the defendant has failed to address the plaintiff's arguments seeking to [*2]dismiss the affirmative{**76 Misc 3d at 793} defense of assumption of the risk. Having failed to address plaintiff's argument in responsive papers, any such claim has been abandoned. (Donna Prince L. v Waters, 48 AD3d 1137 [4th Dept 2008].) Furthermore, to the extent that the defendant is alleging the doctrine of primary assumption of the risk as a defense, arguing that the decedent assumed the risk of hunting (see e.g. Jacobs v Kent, 303 AD2d 1000 [4th Dept 2003]), the court finds that the defendant has failed to submit evidence that rebuts plaintiff's entitlement to summary judgment dismissing this affirmative defense.

[1] It is undisputed that at the time Todd Herrington was shot and killed he was not engaged in the sport of hunting. He was seated or standing next to the ATVs on the side of the road. As he was not engaged in hunting, Todd Herrington did not consent to the risk of being negligently shot by defendant. "It is also important to appreciate that, by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation." (Morgan v State of New York, 90 NY2d 471, 484 [1997] [emphasis added].) In the light most favorable to the defendant there is no reasonable view of the evidence that Mr. Herrington was engaged in the sport of hunting when he was shot and killed by defendant Tompkins.

Assuming arguendo that he was engaged in the sport of hunting, although the evidence in the light most favorable to the defendant establishes he was not, Mr. Herrington "will not be deemed to have assumed the risks of reckless or intentional conduct ([Turcotte v Fell, 68 NY2d 432,] 439; McGee v Board of Educ., 16 AD2d 99, 101-102, supra) or concealed or unreasonably increased risks (Benitez v New York City Bd. of Educ., 73 NY2d 650, 658, supra)." (Id. at 485.) Clearly Mr. Tompkins' actions were " 'unique and created a dangerous condition over and above the usual dangers that are inherent in the sport' (Owen v R.J.S. Safety Equip., 79 NY2d 967, 970; Cole v New York Racing Assn., 24 AD2d 993, affd no opn 17 NY2d 761)." (Id.) Thus, primary assumption of the risk is, as a matter of law, not available as a defense to defendant Tompkins. (See also Pelkey v Viger, 289 AD2d 899, 900 [3d Dept 2001] ["As to defendant's contention that plaintiff assumed the risk of injury by his voluntary participation in the sport of hunting, we note that this doctrine does not encompass ' "another participant's negligent play which enhances the risk" ' (Martin v Luther, 227{**76 Misc 3d at 794} AD2d 859, 860, quoting Jackson v Livingston Country Club, 55 AD2d 1045; see, Duncan v Kelly, 249 AD2d 802, 803)"].)

For the same reasons summary judgment is granted to the plaintiff dismissing the defendant's first affirmative defense of comparative negligence. The defendant argues that Todd Herrington was comparatively negligent as he was not wearing an orange vest, citing New York State Department of Environmental Conservation regulations.^[FN9] The regulation states:

"Any person hunting deer or bear with a firearm or a person who is accompanying someone hunting deer or bear with a firearm shall display either:

"(1) a minimum total of two hundred fifty square inches of solid fluorescent orange or fluorescent pink material worn above the waist and visible from all directions; or[*3]

"(2) a minimum total of two hundred fifty square inches of patterned fluorescent orange or fluorescent pink material consisting of no less than fifty percent fluorescent orange or fluorescent pink worn above the waist and visible from all directions; or

"(3) a hat or cap with no less than fifty percent of the exterior consisting of solid fluorescent orange or fluorescent pink material and visible from all directions." (6 NYCRR 2.15 [c].)

The plaintiff correctly notes that the regulation cited by the defendant is not relevant, as it was implemented after the death of Todd Herrington. To the extent this regulation was adopted in recognition of the risk of accidental injury hunters face while hunting, the plaintiff is correct in that the evidence clearly establishes that Mr. Herrington was not engaged in the sport of hunting at the time he was shot, nor was he in the woods where he knew defendant Tompkins was hunting.

Defendant Tompkins was solely negligent in his actions. It is axiomatic that one who discharges a firearm must do so safely, knowing that the intended target is not another human being. ("One who carries a weapon for hunting purposes is bound under the law to see and to distinguish what he or she shoots at" [2 NY Evidence Proof of Cases § 23:131, Shooting of unintended victim; innocent bystander—Shooting person mistaken for game animal].) There is no valid line of reasoning{**76 Misc 3d at 795} or permissible inferences that would allow a determination that Todd Herrington was comparatively negligent.

"Whether the issue is the negligence of the defendant or the contributory negligence of the plaintiff, the test is whether there is a valid line of reasoning and permissible inferences that could possibly lead a rational person to the conclusion of negligence based on the evidence. 'If no such "valid line of reasoning" exists, it is proper for the trial court to make a legal determination without resorting to the fact-finding function of the jury' (Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 517)." (Gusek v Compass Transp. Corp., 266 AD2d 923, 923-924 [4th Dept 1999].)

Thus, the defendant has failed to meet his burden (see CPLR 1412) in establishing that Mr. Herrington was negligent in any way; thus the first and second affirmative defenses are dismissed.^[FN10]

The defendant also asserts in this eleventh affirmative defense that plaintiff's claims are precluded by the statute of limitations.

Todd Herrington was killed by defendant Tompkins on June 8, 2018. Defendant Tompkins was found guilty on November 15, 2019, and was sentenced to probation on August 14, 2020.^[FN11] The probation order issued in defendant Tompkins' case states that defendant Tompkins was found guilty of the charge of Criminal Code § 86 (1), (3) (a) on November 15, 2019, and "WHEREAS on 2020-08-14 the Court adjudged, subject to the conditions hereinafter prescribed: that the passing of sentence on the offender be suspended, and that he be released . . . NOW [*4]THEREFORE, the offender shall, for a period of 2 years COMPLY WITH THE FOLLOWING CONDITIONS." The order then imposes the conditions of probation and a fine of $5,000. Additionally, the order notes it is issued pursuant to "Section 732.1 Cr.C," which is contained under "Part XXIII—{**76 Misc 3d at 796}Sentencing" of the Criminal Code of Canada.^[FN12] Thus, defendant Tompkins was sentenced on August 14, 2020.

[2] EPTL 5-4.1 (2) states:

"Whenever it is shown that a criminal action has been commenced against the same defendant with respect to the event or occurrence from which a claim under this section arises, the personal representative of the decedent shall have at least one year from the termination of the criminal action as defined in section 1.20 of the criminal procedure law in which to maintain an action, notwithstanding that the time in which to commence such action has already expired or has less than a year remaining." (Emphasis added.)

Criminal Procedure Law § 1.20 states that a criminal action "(c) terminates with the imposition of sentence or some other final disposition in a criminal court of the last accusatory instrument filed in the case." (CPL 1.20 [16].) Thus, defendant Tompkins' criminal action terminated on August 14, 2020.

As noted by the Fourth Department in Dynamic Chems., Inc. v Ackerman Mech. Servs., Inc. (58 AD3d 153 [4th Dept 2008]) the defendants therein argued that the language contained in CPL 1.20 (16) defining "criminal action" must be construed to limit the application of CPLR 215 (8)—a tolling provision with identical language to EPTL 5-4.1 (2)—to only New York criminal cases. (Id. at 155.) The Fourth Department explicitly rejected that argument holding:

"[w]e thus conclude that the term criminal action must be given its ordinary meaning (see Samiento v World Yacht Inc., 10 NY3d 70, 78 [2008]; Feher Rubbish Removal, Inc. v New York State Dept. of Labor, Bur. of Pub. Works, 28 AD3d 1, 4 [2005], lv denied 6 NY3d 711 [2006]), and we construe it to include any criminal action, whether commenced in a court of any state or in any federal court." (Dynamic Chems., Inc. v Ackerman Mech. Servs., Inc., 58 AD3d 153, 156 [4th Dept 2008].)

As the language of CPLR 215 (8) and EPTL 5-4.1 (2) is identical, the same rule of statutory construction applies; "criminal action" as used in EPTL 5-4.1 (2) must be given its ordinary meaning.

Defendant herein, citing no case law contrary to the Fourth Department's holding in Dynamic Chems., Inc. v Ackerman{**76 Misc 3d at 797} Mech. Servs., Inc. that "criminal action" should be given its ordinary meaning, argues that whether a "criminal action" in a foreign country would fall within the definition of "criminal action" under EPTL 5-4.1 (2) is an issue of first impression that "should be rigorously researched, briefed and argued" before a decision is made. Defendant's opportunity to do so was in response to plaintiff's summary judgment motion to dismiss the eleventh affirmative defense. Defendant, despite recognizing this is a salient issue, failed to do so.

There is no logical reason to construe "criminal action" to mean only those actions commenced in any state, or by the federal government (through application of Dynamic Chems., Inc. v Ackerman Mech. Servs., Inc.) but exclude criminal actions commenced [*5]in Canada. The term "criminal action" under EPTL 5-4.1 (2) should be given its ordinary meaning and would apply to defendant Tompkins' Canadian criminal prosecution. (Dynamic Chems., Inc. v Ackerman Mech. Servs., Inc.; see also Elkin v Cassarino, 248 AD2d 35 [2d Dept 1998].) Defendant Tompkins was convicted on August 14, 2020, of a crime directly related to his negligent shooting and killing of Todd Herrington, and this action was commenced on July 26, 2021, within one year of the termination of the criminal action. (CPLR 304; NYSCEF Doc Nos. 1, 2, summons and complaint, filed July 26, 2021.) As the causes of action alleged in the complaint are related to that criminal conviction ("with respect to the event or occurrence from which a claim under this section arises"), EPTL 5-4.1 (2) applies, and the plaintiff's complaint was properly commenced within the requisite time period. Thus, summary judgment is granted to the plaintiff, and the defendant's eleventh affirmative defense is dismissed.

Based upon the foregoing, it is hereby ordered that the plaintiff's motion for summary judgment is granted on the issue of defendant Tompkins' liability; and it is further ordered that the defendant's affirmative defenses are dismissed.