Recent Development by Victoria M. de Lisle
Kenneth Decareaux accidentally shot Karl F. Ermert, III in the foot while Ermert was spending the weekend as Russell Larrieu's guest at a hunting camp located in St. Bernard Parish, Louisiana. The hunting camp was built in 1975 on property held under a lease by Larrieu. Larrieu, Decareaux and the other defendants, Alkaney Cummings, Leon Brumfield, Joseph Caillouette and Robert Bourcq, were all friends or acquaintances who had hunted together at other camps prior to 1975. Although only Larrieu contributed money to the construction of the present camp, the other defendants contributed various materials, furniture, and labor. Each man paid approximately fifty-two dollars per year to cover the annual rental fee for the duck ponds. The hunters always sought Larrieu's permission before visiting the camp because they all considered him to be the camp's owner. The group had no written constitution, bylaws, rules, or formal meetings. Besides hunting with his friends on the weekends at the camp, Decareaux was president and majority stockholder of Nu-Arrow Fence Company. Once the camp was completed, Decareaux invited employees and good customers to the camp to hunt. Decareaux also sold fences to the majority of his fellow hunters and received referrals from them resulting in additional sales. On the weekend of the accident, Larrieu and his guest, Ermert, were at the camp along with Brumfield, Caillouette, Bourcq, and Decareaux to build duck blinds for the upcoming season. On Sunday morning, Decareaux noticed a nutria swimming across the canal. Decareaux quickly began loading a shotgun to shoot the nutria. While Decareaux was walking through the camphouse, the gun accidentally discharged and a bullet struck Ermert in the foot.
Ermert brought suit against Decareaux, Nu-Arrow, and their insurers. Ermert claimed that the hunting camp was an unincorporated association which consisted of the six hunters, all six of which were liable for his injury. The trial court granted summary judgment and maintained exceptions of no cause of action in favor of all of the defendants except Decareaux. The plaintiff appealed and the Louisiana Court of Appeal for the Fourth Circuit reversed and remanded the case, stating that the evidence established that the defendants had formed a “club” and that the contradictory record did not support summary judgment. The district court held that mere membership in such an organization was insufficient to render the members vicariously liable for the wrongful acts of one of the members or those of the association itself. Because the court found that Nu-Arrow derived economic benefit from the camp's existence and that Decareaux was acting within the scope of his employment at the time of the accident, the court held Nu-Arrow vicariously liable for its president's negligence.
On appeal by Ermert and Nu-Arrow's insurer, the Louisiana Court of Appeal for the Fourth Circuit reversed as to both issues. Although the court accepted the trial court's determination that the hunting club constituted an unincorporated association, it nonetheless held that the non-tortfeasor members, with the exception of Cummings, were jointly and solidarily liable for Ermert's injuries on three grounds: (1) the members had failed to adhere to any safety rules when they had a duty to do so; (2) Decareaux's decision to shoot the nutria was made for the benefit of the association; and (3) the action was taken with the tacit approval of the other members. The court of appeal also disagreed with the trial court's decision holding Nu-Arrow liable. It found that while in the past Decareaux may have mixed business with recreation during his visits to the camp, at the time of the accident he was not performing an activity for which he was employed by Nu-Arrow, but was instead engaged in a purely recreational pursuit. Ermert, as well as Larrieu, Bourcq, Caillouette, and Brumfield sought review of the appellate court's decision. The Louisiana Supreme Court granted the writs and consolidated the applications. The court, in an opinion by Justice Dennis, reinstated the trial court's judgment. It found that both the trial court and the court of appeal erred in failing to apply the appropriate legal precepts to determine whether an unincorporated association, as a separate juridical person, had been formed. The court held that because the defendants exhibited no intent to form an unincorporated association, no such association existed, thereby eliminating the need to address the issue of whether the members of such an entity may be held liable for the torts of one of its members. In addition, the court held that the court of appeal erred in reversing the trial court's judgment against Nu-Arrow because the trial court's conclusion that Decareaux was acting within the scope of his employment was not clearly erroneous. Ermert v. Hartford Insurance Co., 559 So. 2d 467 (La. 1990).
About the Author
Victoria M. de Lisle.
Citation
65 Tul. L. Rev. 1699 (1991)