Cullip v. Domann, 972 P.2d 776

SUPREME COURT OF KANSAS

1999

Chapter

13

Title

Vicarious Liability

Page

567

Topic

Joint Enterprises, Joint Ventures & Partnerships

Quick Notes

Joint Enterprises, Joint Ventures & Partnerships

Issue

o         Whether a person can be held liable under a joint venture during a hunting accident?  No.

Procedure

Trial

o         Trail Court Granted summary judgment to JJ and his parents.

Supreme

o         Affirmed Trial court did not error in finding that JJ had not duty to the Pl.

Facts

Reason

Rules

o         Pl - Cullip

o         Df - Domann

What happened?

o         The plaintiff, David Cullip, age 14, and two friends the same age, the defendants Johnny Jack Mercer (J.J.) and William Domann, went hunting on property not owned by them.

o         A 12-gauge shotgun carried by William accidentally discharged, striking the plaintiff and causing permanent paralysis.

o         After discovery and partial settlement with other named defendants, the trial court granted summary judgment to J.J. and his parents, Joe and LuElla Mercer, on all of the plaintiff's negligence claims.

o         The plaintiff appeals and we affirm.

Pl - Arguments

1.   J.J.'s failure to take a hunter safety course as required by K.S.A. 32-920 is negligence per se, subjecting J.J. to liability for the plaintiff's injury and damages.

2.   The plaintiff also argues that liability may be predicated upon a joint venture giving rise to the duty of each member of the hunting party to insure that proper safety precautions were followed by all members of the joint venture.

T.Ct Arg 1

o         JJs alleged violation of not taking hunters safety was not he proximate cause of the Pl - injury.

T.Ct Arg 2

o         The relational hunting party in this case may not be considered a joint venture.

Joint Venture

o         A joint venture occurs where two or more persons combine to engage in a single business enterprise for profit, such that liability is imputed to all participants.

Element to Establish Joint Venture Liability

(1) an agreement;

(2) a common purpose;

(3) a community of interest; and

(4) an equal right to a voice accompanied by an equal right of control over the  

     instrumentality causing the injury

Distinction between Joint Enterprise and Joint Ventures

o         Joint Ventures apply to business ventures.

o         Joint Enterprises do NOT apply to business ventures.

Elements of a Joint Enterprise

(1) an agreement,

(2) a common purpose,

(3) a community of interest, and

(4) an equal right to a voice, accompanied by an equal right of control over the

     Instrumentality

Scott Case Passenger of a car.

o         This court held that in situations where the passenger and driver were engaged in a joint enterprise, the passenger could be held liable to third persons for the negligence of the driver.

Supreme Court

o         Joint enterprise does not exist.

Delgado

o         Minnesota Supreme Court stated that as a matter of law, the hunters were not engaged in a joint enterprise because they were engaged in a recreational activity on a gratuitous and voluntary basis with no sharing of expenses or equipment, and, more importantly, each hunter had control of his or her own gun

Rule

o         Where evidence of the relationship and understanding of the parties is undisputed and the facts and circumstances clearly show a passenger [alleged participant in a joint enterprise] does not have an equal privilege and right to control . . . the issue of joint enterprise to support vicarious liability becomes one of law for the court's determination.

Joint Enterprise Problem

o         A joint enterprise does not establish a duty of care between its members.

Joint Venture

o         Has been held to impose a duty on all its member to engage in a full, fair, open and honest disclosure of everything affecting the business relationship.

Thus, even if the plaintiff could have established a joint enterprise, he cannot establish that such a relationship creates a duty among and to the members of the joint enterprise.

Vetter

o         The driver of a van and his passenger intentionally verbally assaulted and swerved toward the plaintiff, causing an accident.

o         In discussing the liability of the passenger, the Court of Appeals found that one person may be liable for the tortious conduct of another when they act in concert pursuant to a common design.

Liability for Acting in a concerted Manner

'"For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he

(a) does a tortious act in concert with the other or pursuant to a common design with him, or

(b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or

(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.'"

Class Notes

o         Here the Pl was arguing that the hunting group was a joint enterprise and therefore each member of that joint enterprise is liable for the acts of all other members in the joint enterprise.

ELEMENTS of joint venture:  (Applies to Businesses)

1.       Agreement

2.       Common purpose

3.       Community of interest

4.       Equal right to a voice PLUS equal right of control

Elements of a Joint Enterprise  (Does Not Apply to Businesses)

(1) an agreement,

(2) a common purpose,

(3) a community of interest, and

(4) an equal right to a voice, accompanied by an equal right of control over the

     Instrumentality

Distinction between Joint Enterprise and Joint Ventures

o         Joint Ventures apply to business ventures.

o         Joint Enterprises do NOT apply to business ventures.

Joint Enterprise (Does Not Establish A Duty Of Care Among Members)

o         Each member is liable for the actions of other members with regard to third person who are not members; a joint enterprise does not establish a duty of care between its members.

o         Even if the Pl could have established a joint venture, he CANNOT establish that a relationship creates a duty among the members of the joint enterprise.

Joint Venture (Does Establish A Duty of Care Among Members)

o         Has been held to impose a duty on all its member to engage in a full, fair, open and honest disclosure of everything affecting the business relationship.