Montgomery v. Remsburg

ADKINS, Judge. At 6:00 a.m. on November 28, just before daybreak on the opening day of the 1998 deer hunting season, Charles Montgomery waited quietly in the underbrush, near the northern boundary of the Montgomery family farm in Ijamsville. It was to be Charles’s first deer hunt. ' He and his adult son Brian, an experienced hunter, had arrived in darkness to avoid disturbing deer that might come into their range. As they awaited the official start of the hunting season — at 6:34 a.m., 30 minutes before sunrise — the Montgomerys were ⁵⁷¹ surprised to hear other hunters approach the area from the neighboring property.

One hunter climbed into a tree stand that had been located for many years on the Montgomery property, just next to where both Montgomerys remained hidden. At approximately 6:15, the Montgomerys decided to leave the area due to the newly arrived hunters. Before leaving, however, Charles Montgomery reached down to massage a leg cramp. Immediately, a shot reported.

A shotgun shell grazed Brian’s neck, then pierced Charles’ right arm and entered his side. The shooter was 27 year old James Remsburg, Jr. (“Remsburg Jr.”), an experienced hunter. At the first sight of movement from the brush, he had taken aim and fired a single shot from his position in the tree stand. When he realized his mistake, Remsburg Jr. called to his father, appellee James Remsburg, Sr. (“Remsburg Sr.”), who left his post in a tree stand on the neighboring property.

Along with others in his hunting party, Remsburg Sr. arrived to find Charles Montgomery bleeding profusely. Upon seeing the injured Montgomerys, Remsburg Sr. commented, “I guess that rules out telling Jamie to shoot at the first thing that moves.” As a result of Remsburg Jr.’s shot, Charles Montgomery has almost no use of his right arm and shoulder, and only limited use of his right hand. Charles, his wife Ruth Ellen, and Brian Montgomery, appellants, sued Remsburg Sr. and Remsburg Jr. for negligence and trespass. After they settled with Remsburg Jr., the Montgomerys continued to pursue their claims against Remsburg Sr. The Circuit Court for Frederick County granted summary judgment in favor of Remsburg Sr., finding that (1) he could not be liable for negligence because he had no duty to warn Charles Montgomery that they would be hunting in the area that day, or to prevent his son from shooting the Montgomer-ys on their own property; and (2) he could not be liable for trespass because he was not hunting on the Montgomery ⁵⁷² property. • The Montgomerys contend that both rulings are erroneous.

This appeal presents an issue of first impression in Maryland, regarding the negligence liability of a hunter for his hunting companion’s mistaken shooting of another hunter. Generally, hunters are not liable for the negligent and illegal acts of their hunting companions. In the circumstances presented here, however, we shall hold that there were factual disputes material to determining whether Remsburg Sr. owed the Montgomerys a special duty to take preventive measures, either by informing them that they intended to hunt in that area, or by giving Remsburg Jr. enough information to alert him to the possibility that other hunters might be present that morning. Because the trial court premised its grant of summary judgment solely on its “no duty” holding, we shall reverse the judgment on the negligence count, and remand for further proceedings.

Finding no error in the judgment on the trespass count, however, we shall affirm it. FACTS AND LEGAL PROCEEDINGS Our review of the summary judgment record necessarily reflects the facts and inferences that are most favorable to the Montgomerys. See Heat & Power Corp. v. Air Prods. & Chems., Inc., 320 Md. 584, 591 , 578 A.2d 1202 (1990). When Remsburg Jr. fired at the Montgomerys, he was standing and shooting on their property.

In contrast, his father, Remsburg Sr., was not. Instead, he was positioned in a tree stand located on the adjacent Payne property, near its boundary with the Montgomery property, but about 250 to 400 yards from his son. The other members of the Remsburgs’ hunting party also were on the Payne property. On the morning of November 28, 1998, the Montgomerys and Remsburgs were not strangers.

Remsburg Sr. had a long working relationship with Charles Montgomery’s late father, James O. Montgomery, as well as years of hunting experience on the Montgomery property. James Montgomery allegedly ⁵⁷³ leased hunting rights to a number of different hunters, designating particular portions of the Montgomery property for each. In 1989, Remsburg Sr. and James Montgomery entered into a written lease giving Remsburg Sr. hunting rights for five years, for the annual sum of $500. Remsburg Sr. paid in work that he performed on the Montgomery property, which was credited against the rent.

According to the Montgomerys, when the Remsburgs’ lease expired in 1994, Charles Montgomery had assumed his father’s role as the decision maker regarding hunting rights. Charles verbally granted Remsburg Sr. hunting rights in each of the ensuing years, through 1997, and Remsburg Sr. continued to pay with his work. During these years, Remsburg Sr. often brought his son and others to hunt on the Montgomery property. In fact, while Remsburg Jr. was still a minor, he and his father built the tree stand from which he eventually shot at the Montgom-erys.

This stand was located, at the suggestion of James Montgomery, near the northern boundary of the Montgomery property. According to Charles Montgomery, however, as the 1998 deer hunting season approached, he had decided not to give Remsburg Sr. permission to hunt on the Montgomery property. He claimed that he made the decision, in part, because there had been reports of hunting altercations involving Remsburg Sr. Remsburg Sr., however, never spoke with Charles Montgomery about hunting rights for the 1998 deer season. Remsburg Sr. instead had entered into a written lease for hunting rights on the adjacent Payne property, which covered the 1998 deer season.

Whether, in addition to his right to hunt on the Payne property, Remsburg Sr. also had a right to hunt on the Montgomery property is disputed. In his answers to interrogatories, 1 Remsburg Jr. asserted a right to hunt from the ⁵⁷⁴ tree stand on the Montgomery property that was derived from his father’s hunting rights under the 1989 lease, which, he alleged, had been renewed for another five years: Mr. Remsburg was on the property in question with the permission of his father, James Remsburg, Sr. The [Montgomerys], either directly or through a predecessor, expressly consented to the presence of Mr. Remsburg on their property, for purposes of hunting, pursuant to the written Agreement of Lease, dated January 7, 1989, and subsequently renewed for an additional five year term commencing January 7,1994[.] (Emphasis added.) The Montgomerys deny that the 1989 lease was renewed, and that Remsburg, Sr. ever paid any rent for such a renewal. In addition, they contend that, even if the lease had been renewed, it never covered the portion of their property where Remsburg Jr.’s tree stand is located. The 1989 lease limits hunting rights to a specific portion of the Montgomery property, which, it states, is identified in an exhibit incorporated into the lease.

But that exhibit is missing, and the parties dispute which portion of the Montgomery property it referred to. The Montgomerys assert that the 1989 lease did not give Remsburg Sr. hunting rights on the property located to the north of Ball Road, which bisects the Montgomery property. 2 In “commonsensical” support, they point out that there are three residences of various Montgomery family members north of Ball Road, as well as dairy livestock that would be disturbed by hunting activity. Remsburg Sr. counters that the renewed 1989 lease gave them permission to hunt anywhere north of Ball Road. He points to Charles Montgomery’s deposition testimony that he knew that Remsburg Sr., was hunting north of Ball Road on ⁵⁷⁵ the Montgomery property, and that he was asserting to other hunters that he had a right to do so, until shortly before November 28, 1998.

In additional “commonsensical” support, he notes the longstanding presence of the tree stand near the northern boundary of the property, and the fact that it was built where James Montgomery told them to put it. The Montgomerys also point to other evidence that Rems-burg Sr. appreciated the potential for trouble if his hunting party hunted out of the tree stand that morning. They point to evidence that earlier that fall, before this accident, another hunter to whom Charles had given hunting rights, reported to Charles Montgomery that he had encountered Remsburg Sr. on the Montgomery property while he was hunting, to argue that Remsburg Sr. knew he had not been given exclusive hunting rights for the 1998 deer season. The Montgomerys also argue that Remsburg Sr. understood that the Montgomerys would not anticipate his hunting party’s presence on opening day.

They contend that on the evening of November 27, 1998, the night before deer season opened, Remsburg Sr. telephoned Charles Montgomery’s house, but no one was home. 3 The Montgomerys claim that Remsburg Sr. was calling to ask for the permission to hunt that he knew he needed but did not have, or at least to advise Charles that his hunting party intended to hunt there under a claim of right. The Montgomerys also alleged that there is evidence that the Remsburgs were competing for the first kill. They asserted that Remsburg Sr. hosted his hunting party overnight at a cabin that he built for hunting parties adjacent to the Payne ⁵⁷⁶ property in preparation for opening day. They contended that there is deposition testimony from other members of the hunting party indicating that they discussed where members of the hunting party would be, including that Remsburg Jr. would be in the tree stand, and that there were “no trespassing” signs on the Montgomery property.

In addition, in their discussion, they allegedly acknowledged that the hunter who shot the first deer of the season would have “bragging rights.” According to the Montgomerys’ proffer, there was deposition testimony that those bragging rights seemed very important to both of the Remsburgs. The Montgomerys also proffered that Remsburg Sr. never mentioned to the hunting party that he had failed to speak with the Montgomerys about hunting rights for the 1998 season. 4 The circuit court held that summary judgment was appropriate on the Montgomerys’ negligence claim, because in this particular case, [Remsburg Sr.’s] duty would have to arise out of a special relationship under Maryland law, and there just simply is no — it’s not a factual matter, but there’s not any relationship that’s proffered or pled or presumed under any theory in Maryland law that would support a finding of liability there. The court also held that summary judgment was appropriate on the Montgomerys’ trespass and loss of consortium claims. The Montgomerys appealed the judgments on these counts. 5 DISCUSSION Summary Judgment Standard Of Review Our “review of the grant of summary judgment involves the determination of whether a dispute of material fact exists, and ⁵⁷⁷ ‘whether the trial court was legally correct.’ ” Taylor v. NationsBank, N.A., 365 Md. 166, 174 , 776 A.2d 645 (2001) (citations omitted). “In reviewing the grant of a summary judgment motion, we are concerned with whether a dispute of material fact exists and, if not, whether the movant is entitled to judgment as a matter of law.” Matthews v. Howell, 359 Md. 152, 161 , 753 A.2d 69 (2000). “If the case presents a clear legal issue, which does not require the trial court to resolve motive, intent, credibility, or disputed facts and inferences, then the court may determine liability as a matter of law on a motion for summary judgment.

We review de novo the trial court’s legal conclusion that a defendant is entitled to summary judgment.” Fagerhus v. Host Marriott Corp., 143 Md. App. 525, 535 , 795 A.2d 221 , cert. denied, 369 Md. 572 , 801 A.2d 1032 (2002). I. Negligence To establish negligence, a plaintiff must show “(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant’s breach of the duty.” Muthukumarana v. Montgomery County, 370 Md. 447, 486 , 805 A.2d 372 (2002)(quotation marks and citations omitted). Because summary judgment on the Montgomerys’ negligence claim was premised solely on the circuit court’s ruling that Remsburg Sr. did not have a duty to the Montgomerys, either to control the hunting conduct of his son or to warn the Montgomerys of his presence, our review focuses solely on the threshold element of duty. 6 ⁵⁷⁸ In reviewing the propriety of the summary judgment on the negligence count, we are faced with a series of related duty issues. In Part A of this section, we summarize the parties’ arguments in light of the legal issues and the record.

In Part B, we address two threshold procedural concerns raised in the parties’ briefs: (1) whether the existence of a tort duty was a question of law for the court or a question of fact for the jury, and (2) whether summary judgment was appropriate due to the Montgomerys’ failure to present any evidence in defense of the motion. In Part C, we review and apply lessons from the few reported Maryland cases involving hunting liability issues, and from a Wisconsin case that we find analogous to this one. In Part D, we consider and reject the Montgomerys’ alternative arguments in favor of establishing a broader “duty per se ” on Remsburg Sr. A. The Parties’ Duty Arguments “[Njegligence is a breach of duty owed to one, and absent that duty, there can be no negligence.” Ashburn v. Anne Arundel County, 306 Md. 617, 627 , 510 A.2d 1078 (1986). “[T]here are a number of variables to be considered in determining if a duty exists to another,” including “the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the injury, the closeness of the connection between the defendant’s conduct and the ⁵⁷⁹ injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.” Id. at 627 , 510 A.2d 1078 (quoting Tarasoff v. Regents of Univ. of Cal., 17 Cal.3d 425 , 181 Cal.Rptr. 14 , 551 P.2d 334, 342 (1976))(emphasis added). “Inherent ... in the concept of duty is the concept of a relationship between the parties out of which the duty arises.” Rosenblatt v. Exxon Co., U.S.A., 335 Md. 58, 77 , 642 A.2d 180 (1994). The reason for this limitation on negligence liability is that “ ‘[tjhere is normally much less reason to anticipate acts on the part of others which are ... merely negligent, and this all the more true where, as is usually the case, such acts are criminal.’ ” Valentine v. On Target, Inc., 353 Md. 544, 552 , 727 A.2d 947 (1999) (citation omitted). “The general rule is ... that a private person is under no special duty to protect another from criminal acts by a third person, in the absence of statutes, or of a special relationship.” Scott v. Watson, 278 Md. 160, 166 , 359 A.2d 548 (1976). “There are, however, ... situations, in which either a special responsibility resting upon the defendant for the protection of the plaintiff, or an especial temptation and opportunity for criminal misconduct brought about by the defendant, will call upon him to take precautions against it.

See Valentine, 353 Md. at 552-53 , 727 A.2d 947 (citation omitted). The Montgomerys’ negligence claim against Remsburg Sr. rests on their contention that he had a special duty to take measures that would have prevented this accidental shooting. In effect, they argue, Remsburg Sr. was negligent in failing either to control his son or to warn them of his presence. In this respect, the Montgomerys’ duty argument against Rems-burg Sr. is inextricably tied to the negligent and illegal ⁵⁸⁰ conduct of Remsburg Jr. To understand the Montgomerys’ claim against Remsburg Sr., then, we must first review their complaints against Remsburg Jr. 1.

The Illegal Shot The Montgomerys point out that Remsburg Jr.’s shot was illegal in three critical respects. First, Remsburg Jr. did not have a hunting licensed 7 Maryland law prohibits a person from hunting or attempting to hunt “game ... mammals in the State without first having procured either a resident or nonresident hunter’s license.” Md.Code (1974, 2000 Repl.Vol., 2001 Cum.Supp.), § 10-301(a) of the Natural Resources Article (“NR”). To hunt deer, a hunter also must “obtain the appropriate individual hunting stamp.” 8 NR § 10-308(a). To qualify for a hunting license, hunters must “produc[e] a certificate of competency” in firearms and hunting safety.

See NR § 10 — 301.1(a)(l)(ii). The Department of Natural Resources will issue a certificate of competency and safety only to hunters who successfully complete a prescribed course of instruction. See NR § 10-301.1(b). To obtain a license, each hunter also must sign a statement that says: “I understand that this hunting license does not of itself permit me to hunt on private property, and if I do so without permission of the owner, I may be subject to a fine.” NR § 10-301 (e).

While hunting, each hunter must have his or her license, and must ⁵⁸¹ show it upon demand of a Natural Resources police officer or the owner of the property.' See NR § 10-306; § 10 — 411(c). Second, the Montgomerys claim, Remsburg Jr. was hunting on their propertg without their permission or knowledge. Under Maryland law, hunters in Frederick County “may not enter or trespass upon land owned by another person for the purpose of hunting deer on the land with gun [or rifle] ... without first securing the written permission of the landowner[.]” NR § 10-411(c). Doing so is a misdemean- or criminal offense.

See NR § 10-411(d). In his deposition, Remsburg Jr. testified that he did not know on whose property the tree stand was located. He claimed, however, that the tree stand was situated in that position on the advice of James O. Montgomery, and that he and others built it more than five years before the incident. When asked why he was hunting there that morning, Rems-burg Jr. claimed that he had a right to “hunt out of [his] stand,” as he had been doing “for 15 years.” Since Remsburg Jr. asserted in his answers to interrogatories that his hunting rights derived solely from his father’s hunting rights, we assume for purposes of this appeal that he was hunting illegally on the Montgomerys’ property and that Remsburg Sr. caused him to do so by failing to advise him that he did not have the Montgomerys’ permission.

We also assume that Remsburg Sr. knew that his son was hunting illegally on the Montgomery property, and that Remsburg Jr. was doing so under the mistaken belief that the Montgomerys had given such permission. Third and last, Remsburg Jr. fíred before the season officiallg started. Maryland law prohibits nighttime hunting of deer, which is defined as “the time beginning one-half hour after sunset and ending one-half hour before sunrise the following day; as published in the Department’s hunter’s guide[.]” See NR § 10-101 {l), § 10-410(b). According to that publication, the official start of the 1998 season for firearm hunting of deer was 6:34 a.m. on November 28.

Remsburg Jr. admits that he fired too early, at approximately ⁵⁸² 6:15 a.m. Thus, it is undisputed that his shot was too early to be legal. 2. Special Duty Because the shot that Remsburg Jr. fired at the Montgomerys was at least doubly, and possibly triply, illegal, Remsburg Sr. had no duty to protect the Montgomerys from Remsburg Jr. unless he had a special duty to them. “[S]pecial duties ‘arise out of special relations between the parties, which create a special responsibility, and take the case out of the general rule’ ” limiting negligence liability to crime victims. Fried v. Archer, 139 Md.App. 229, 246 , 775 A.2d 430 (2001), aff'd sub nom.

Muthukumarana v. Montgomery County, 370 Md. 447 , 805 A.2d 372 (2002)(quoting Restatement (Second) of Torts § 314A cmt. b (1965)). A special duty “may be established in a number of ways: (1) by statute or rule, (2) by contractual or other private relationship, or (3) indirectly or impliedly by virtue of the relationship between the tortfeasor and a third party[.]” Bobo v. State, 346 Md. 706, 715 , 697 A.2d 1371 (1997) (citations omitted). Thus, absent a statute or one of these special relationships, there is no private duty to control the illegal or negligent conduct of a third person so as to prevent him from causing physical harm to another. See Furr v. Spring Grove State Hosp., 53 Md.App. 474, 482, 488-89 , 454 A.2d 414 (1983)(adopting Restatement § 315).

The Montgomerys assert that all three of the potential sources of special duty were present in this case. Specifically, they claim that Remsburg Sr. had a special duty based on (1) Maryland’s hunting laws, (2) the long course of contractual dealing between Remsburg Sr. and the Montgomerys, and (3) Remsburg Sr.’s leadership of the hunting party. With respect to the latter two “relationship” bases for a special duty, they argue that the clear inference from the undisputed facts and the disputed facts is that [Remsburg Sr.] has a sufficient relation ⁵⁸³ ship to [the Montgomerys] and control over the hunting conducted by his son to create a duty to the [Montgomerys] to warn and to take reasonable actions to assure their safety from hunting accidents, such as the subject one. B. Threshold Concerns Before addressing the parties’ substantive arguments regarding Remsburg Sr.’s duty to the Montgomerys, we must resolve two threshold concerns raised by the parties. 1.

The Duty Decision The Montgomerys argue that the circuit court erred “in determining that the existence of a special relationship [creating a tort duty] was an issue of law,” because that issue “is a matter of factual determination to be decided by the trier of fact[.]” They assert that “if there is any set of facts on which the ‘special relationship’ could be found by a reasonable jury, the issue should have been held over for trial.” Remsburg Sr. responds that “[t]his statement of the law is incorrect,” because “the existence of a special relationship is a question of law that the court takes into consideration when determining if a duty exists.” “A tort duty is ‘an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.’ ” Eisel v. Bd. of Educ. of Montgomery County, 324 Md. 376, 385-86 , 597 A.2d 447 (1991) (citations omitted). When there is no dispute regarding the facts material to determining whether the defendant had a special duty arising from a special relationship with the plaintiff, and no dispute regarding the inferences from those facts, the existence of a special duty in tort is purely a question of law for the court to decide. See Muthukumarana, 370 Md. at 472-76 , 805 A.2d 372 ; Valentine, 353 Md. at 549 , 727 A.2d 947 ; Bobo, 346 Md. at 716 , 697 A.2d 1371 . Thus, the question of ⁵⁸⁴ whether Remsburg Sr. had a duty to the Montgomerys ultimately is one that the court must decide as a matter of law.

Nevertheless, the court may not usurp the role of the jury in the course of determining whether a special duty exists. As we recently explained, if there are any disputed facts or inferences, and if any of those disputed facts or inferences are material to determining whether a special relationship exists, then those disputes must be resolved before the court can decide whether there is a special duty. “[T]he existence of duty may depend on preliminary questions that must be determined by the fact finder.” ... “It is for the court to determine, as a matter of law, what characteristics must be present for a relationship to give rise to a duty the breach of which may result in tort liability. It is for the jury to determine whether the facts in evidence establish the elements of that relationship. Thus, the jury decides the question of duty only in the sense that it determines whether the proofs establish the elements of a relationship which the court has already concluded give rise to a duty as a matter of law.” Sterling v. Johns Hopkins Hosp., 145 Md.App. 161 , 171 n. 7, 802 A.2d 440 , 445 n. 7 (2002) (citations omitted).

See also Muthukumarana, 370 Md. at 475-76 , 805 A.2d 372 (“because there was no dispute as to the material facts ..., it was proper for the ... courts to determine, as a matter of law, whether a special relationship existed”); Williams v. City of Baltimore, 359 Md. 101, 150 , 753 A.2d 41 (2000)(“when a dispute of material fact exists, ... the determination as to whether a special relationship exists lies with the trier of fact”). Here, the trial court ruled that Remsburg Sr. had no duty to the Montgomerys because there was “not any relationship ... that would support a finding of liability!.]” The court therefore applied the correct “special relationship” standard for determining Remsburg Sr.’s duty. As we see it, the problem with the court’s ruling is that it resolved disputed facts in doing so. We discuss that error in Section I.C. ⁵⁸⁵ 2.

Adequacy Of The Montgomerys’ Summary Judgment Defense Remsburg Sr. urges us to affirm the circuit court’s summary judgment because the Montgomerys failed to adequately defend his motion. He points out that they simply rested on the allegations and argument in their complaint and pleadings, without citing to admissible evidence to support their contention that a dispute of material fact existed. Although we agree that the Montgomerys did not proffer an affidavit or any other admissible evidence in defense of the motion, that failure alone does not justify the grant of summary judgment. Non-compliance with summary judgment rules does not require judgment in favor of a party who clearly is not entitled to prevail as a matter of law.

See Dudley v. Montgomery Ward & Co., 255 Md. 247, 254 , 257 A.2d 437 (1969). As the party seeking summary judgment, Remsburg Sr. had a threshold burden of establishing the facts necessary for the court to determine that he did not have a special duty to the Montgomerys. See, e.g., Sterling, 145 Md.App. at 168 , 802 A.2d 440 (“The moving party bears the burden of establishing the absence of a genuine issue of material fact”). The circuit court’s observation that “there’s not any relationship that’s proffered or pled or presumed under any theory in Maryland law that would support a finding of liability” reflected its determination that Remsburg Sr. had satisfied that burden, even if every allegation made by the Montgomerys in their pleadings and proffers, and every presumption of law were to be construed in their favor.

It is this rationale that we must review. Our task on appeal is to consider the same material that the circuit court considered, and to decide the same legal issue that the circuit court decided. See Heat & Power, 320 Md. at 591-92 , 578 A.2d 1202 . Accordingly, we, too, examine everything that was “proffered or pled or presumed” by any party to determine whether the circuit court’s ruling was “legally correct.” See id. at 592 , 578 A.2d 1202 . ⁵⁸⁶ As we explain in Section I.C, we conclude that it was not, primarily because there are disputed facts and inferences raised by the deposition testimony, interrogatory answers, admissions, and stipulations offered by Remsburg Sr. himself.

Thus, the summary judgment record was not sufficient to establish that Remsburg Sr. was entitled to judgment as a matter of law, and the Montgomerys were entitled to rely on the inadequacy of that record as grounds for their defense of his motion. C. Remsburg Sr.’s Duty To The Montgomerys 1. Lessons Prom Maryland Hunting Cases Although neither the parties nor the circuit court reviewed Maryland hunting cases, we find some helpful, although not dispositive, lessons in them. Our research revealed three reported hunting liability cases in Maryland, the most recent of which involved an accidental shooting.

In Wood v. Stotski, 148 Md. 508 , 129 A. 646 (1925), a landowner ordered the plaintiffs dogs to be shot and killed after the plaintiff and others trespassed on his property at night, in pursuit of a raccoon. The plaintiff professed that they were “merely exercising the dogs without any intention of killing or capturing the raccoon pursued,” given that “the lawful season for such hunting had not yet begun[.]” Id. at 510 , 129 A. 646 . There was, however, a history of illegal hunting disputes between the landowner and the plaintiff. That night, the landowner and his son ordered the plaintiffs hunting party to leave the property, “and they, in fear, put their lights out and hid in the swamp[.]” Id.

When the landowner discovered that the dogs were still on his property, he instructed his son to shoot them. The trial court directed a verdict for the landowner, ruling that the shooting was a justifiable exercise of reasonable force. The Court of Appeals reversed, “conclud[ing] that the question ⁵⁸⁷ should have been left to the jury for their decision.” Id. at 509 , 129 A. 646 . The Court reasoned that, although “[a] landowner is not required to provide a hunting ground ... for his neighbor and the neighbor’s dogs,” the question of whether this was a justified shooting was a matter for the jury because the reasonableness of the landowner’s actions could not be determined as a matter of law.

See id. at 510-11 , 129 A. 646 . In Baker v. Howard County Hunt, 171 Md. 159 , 188 A. 223 (1936), a property owner sued the local fox hunting club, seeking to enjoin the repeated trespasses of its huntsman and his hounds. The Court of Appeals, noting that “the rights of the fox-hunter are subordinate to the rights of the landowner,” held that the trial court erred in denying the injunction because the club and the huntsman were “under a duty to so control the hounds as to prevent further trespass.” See id. at 168, 172 , 188 A. 223 . It reasoned that, just as “if the hunter himself goes on the lands of another against the owner’s will, he is a trespasser,” so too, if the hunter knowingly “send[s] dogs on the land of another in pursuit of game ... or hunt[s] them in a neighborhood when [he had] reason to know that the chase will probably take them over land on which they have no right to go,” the hunter may be enjoined from future trespass.

See id. at 168-69 , 188 A. 223 . In Hooper v. Mougin, 263 Md. 630 , 284 A.2d 236 (1971), a hunter who negligently shot in the direction of his hunting party challenged a substantial jury verdict in favor of his hunting guide, who lost an eye in the accident. The Court of Appeals held that the guide had not, as a matter of law, assumed the risk of being shot, merely because he was engaged in a dangerous occupation or activity. See id. at 635 , 284 A.2d 236 .

To the contrary, the trial court properly had instructed the jury that the guide had assumed “only normal and average risks,” rather than “all risks.” See id. at 638 , 284 A.2d 236 . The Court explained that persons engaged in dangerous occupations or activities “ ‘assume[ ] only those risks which might reasonably be expected to exist, and, if by some action of the defendant, an unusual danger arises,