Lovell v. Brock

Larry Don LOVELL, and Lynn A. Lovell, et al.
v. Gerald BROCK, Tim Thomas, and Alfred Lee
Brock

96-1374                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered October 9, 1997


1.   Judgment -- summary judgment -- when granted. -- Summary
     judgment should only be granted where there exists no genuine
     issue of material fact, and the moving party is entitled to
     judgment as a matter of law; the evidence is viewed in the
     light most favorable to the party opposing the judgment, and
     all inferences and doubts are resolved against the moving
     party; if the party moving for summary judgment makes a prima
     facie showing that no issues of material fact exist, and the
     nonmoving party fails to present proof that such issues do
     exist, then the reviewing court must affirm the trial court's
     grant of a summary judgment; review of an order granting
     summary judgment is limited to the pleadings, affidavits, and
     other supporting documents that the parties file in support of
     their arguments. 
2.   Joint ventures -- joint enterprise -- factors required. -- To
     find that a joint enterprise exists, Arkansas law requires
     only a showing of: (1) a common object and purpose of the
     undertaking; and (2) an equal right to direct and govern the
     movements and conduct of each other in respect to the common
     object and purpose of the undertaking; the proper query for
     joint enterprise is whether there is enough evidence to show
     an equal right to direct and govern the movements and conduct
     of each other in respect to the common object and purpose of
     the undertaking.

3.   Joint ventures -- essential elements for joint enterprise not
     found -- trial court correct in finding no joint enterprise
     existed. -- Where there was no evidence to prove that any of
     the hunters had an equal right to direct and govern the
     movements and conduct of the group, or each other, with
     respect to the common object and purpose of the undertaking,
     the essential elements for a joint enterprise were not proven;
     the trial court did not err in finding that the hunters were
     not involved in a joint enterprise.

4.   Associations -- definition of. -- An association is a body of
     persons acting together, without a charter, but upon the
     methods and forms used by corporations, for the prosecution of
     some common enterprise. 

5.   Associations -- mere purchase of space does not constitute
     membership in association. -- The mere purchase of space in a
     house by one who was not otherwise interested in the business
     does not constitute a membership in the association.

6.   Associations -- formation of association neither intended nor
     created -- trial court's finding appellees not vicariously
     liable for tortious act affirmed. -- Where there were no
     bylaws or efforts to incorporate or create any formal
     organization, the hunters did not appear to act upon the
     methods or forms used by corporations, or upon any formalized
     methods or forms at all, neither did they have any apparent
     right of control or voting rights, there was no showing of an
     intent, express or implied, to create a club or association,
     the members had only the rights to occupy the house and take
     meals there, and the only commonality of purpose was to eat
     and sleep in a place near hunting woods, there was no genuine
     question of material fact as to the nonexistence of an
     association or club; such an entity was neither intended nor
     created; the trial court's finding that appellees were not
     vicariously liable for the tortious act of one hunter was
     affirmed.

7.   Negligence -- imputed vicarious liability based on negligence
     -- cause of action based on negligence -- proof required. --
     The basis of a finding of imputed vicarious liability is still
     negligence; to prove a cause of action based on negligence,
     the plaintiff must not only prove both that he sustained
     damages and that the defendant was negligent, but also that
     the defendant's negligence was the proximate cause of the
     damages.  

8.   Negligence -- proximate cause question for jury -- proximate
     cause defined. -- Proximate cause must be determined before
     fault may be assessed and is typically a question for the
     jury; the only time that proximate cause may become a question
     of law is when reasonable minds could not differ; proximate
     cause is that which in a natural and continuous sequence,
     unbroken by any efficient intervening cause, produces the
     injury, and without which the result would not have occurred.

9.   Negligence -- single hunter's act proximate cause of death --
     trial court did not err in refusing to extend liability to
     appellees. -- The trial court found that the proximate cause
     of the accident was the negligence of one hunter only, and
     that his negligence was not imputed to appellees; even if
     appellees negligently participated in the illegal act of
     running dogs to harvest a deer, the single hunter's negligent
     act was the immediate and direct cause of the death; the trial
     court correctly found that the single hunter's act was the
     proximate cause because it broke any causal chain that would
     be necessary to broaden his liability to appellees; there was
     no genuine issue of material fact; the trial court did not err
     in finding that the liability of the hunter who fired the
     fatal shot did not extend to appellees.


     Appeal from Poinsett Circuit Court; John N. Fogleman, Judge;
affirmed.
     Compton, Prewett, Thomas & Hickey, P.A., by:  Floyd M. Thomas,
Jr., , for appellant.
     Barrett & Deacon, by:  David W. Calhoon and D.P. Marshall,
Jr., for appellees'.

     Ray Thornton, Justice.
     On November 29, 1986, Larry Don Lovell, Jr., died as a result
of a gunshot wound sustained while deer hunting.  His parents,
appellants, brought this action against Herbert Bartlett and a
number of other individuals engaged in deer hunting in the area,
contending that although Mr. Bartlett fired the shot that killed
their son, vicarious liability should be imputed to other hunters
who were staying at the Bartlett house.  Appellants took a
voluntary nonsuit against all the other hunters except for
appellees, Gerald Brock, Tim Thomas, and Alfred Lee Brock.
     The trial court found that Mr. Bartlett was solely responsible
for the accident that caused Larry Jr.'s death, and entered a
substantial judgment in favor of appellants against Mr. Bartlett. 
No appeal was taken from this judgment.  In the trial court's order
holding Mr. Bartlett solely responsible, the court found that there
was no basis to impose vicarious liability on appellees and granted
their motions for summary judgment.  In their argument for
reversal, appellants contend that appellees were members of an
"association" or "club," imposing vicarious liability on appellees,
or alternatively that they were involved in a joint venture or
enterprise and should be held liable for Larry Jr.'s death.  We
have determined that the trial court's finding was not erroneous
and affirm.
     Several groups of hunters were seeking to kill deer on land
owned by the Georgia Pacific company in Drew County on Thanksgiving
weekend in 1986.  The land was open to the public, and no hunting
group had leased the land, or organized a club or association with
officers and bylaws.  Several persons from Marked Tree, including
Larry Don Lovell, Sr., and his son were camped on Tommy Brashears'
property near Ladelle.  Nearby, ten or twelve other people from
Marked Tree were camped.
     In the same area, Mr. Bartlett owned a cabin and allowed
several persons to use the cabin during deer season.  These hunters
paid Mr. Bartlett $100.00 per season to stay at the cabin.  They
did not meet and adopt any rules, did not own any property
together, and did not lease any hunting rights.  Among those who
sometimes stayed at the cabin were appellees, Gerald Brock, Alfred
Brock, and Tim Thomas, although Gerald Brock was not in Drew County
on the day of the tragic accident.
     On the day of the accident, a local hunter, Monroe Cottington,
and his brother-in-law, Royce Wesson, were also nearby in the woods
hunting deer.  Although the season for using dogs was over, Mr.
Cottington was running his dogs, and he gave an unsworn statement
that Alfred Brock had asked him to do so.  Under oath, Mr. Brock
denied making that request.  Tim Thomas had killed a deer by
himself that morning, and he kept it for his own use.  Hunters from
at least three camps were in the area where Larry Jr. was fatally
wounded.
     The young victim, properly outfitted in an orange coat and
cap, had been left at a pine top beside the road, while his father
and another hunter looked for other stands.  Mr. Brock was more
than three-quarters of a mile away.  Mr. Bartlett was driving along
the road near the boy and had picked up Mr. Thomas, who was walking
through the woods.  Hearing dogs, Mr. Bartlett stopped the truck,
and both he and Mr. Thomas loaded their guns as they were getting
out of the truck.  Almost immediately, a deer appeared on the left
side of the road seventy or eighty yards ahead.  Larry Jr.'s pine
top was on the right side of the road about halfway between Mr.
Bartlett and the deer.  Larry Jr. fired at the deer, and almost
simultaneously, Mr. Bartlett fired his rifle.  The projectile from
Mr. Bartlett's rifle struck Larry Jr. in the back and emerged from
his abdomen.  He died that evening during surgery in Pine Bluff. 
Mr. Thomas did not fire his shotgun and did not see Larry Jr. in
time to warn Mr. Bartlett.  However, the young man was in plain
view.
     The trial court found "that the proximate cause of this
terrible accident was the negligence of the Defendant, Herbert
Bartlett, only, and that the negligence of Herbert Bartlett is not
imputed to the Defendants, Gerald Brock, Alfred Lee Brock, or Tim
Thomas, or either of them."  The trial court also found "[t]hat
there is no genuine issue as to any material fact that gives rise
to joint or vicarious liability as to the Defendants, Gerald Brock,
Alfred Lee Brock, or Tim Thomas, and the Defendants are entitled to
a Judgment as a matter of law."  Based on these findings, the trial
court granted summary judgment to appellees.
     This appeal raises a single point for reversal.  Appellants
argue that the court erred in granting summary judgment because
appellees were vicariously liable either due to their involvement
in a joint enterprise or because they were members of an
"association" or "club."
     Summary judgment should only be granted where there exists no
genuine issue of material fact, and the moving party is entitled to
judgment as a matter of law.  Porter v. Harshfield, 329 Ark. 130,
948 S.W.2d 83 (1997) (citing Ark. R. Civ. P. 56).  The evidence is
viewed in the light most favorable to the party opposing the
judgment, and we resolve all inferences and doubts against the
moving party.  Id.  If the party moving for summary judgment makes
a prima facie showing that no issues of fact exist, and the
nonmoving party fails to present proof that such issues do exist,
then we must affirm the trial court's grant of a summary judgment. 
Id.  Our review of an order granting summary judgment is limited to
the pleading, affidavits, and other supporting documents that the
parties file in support of their arguments.  Id.  These well
established principles guide our analysis of the issues in this
case.
Joint Enterprise or Venture:
     First, we address appellants' argument that the trial court
erred in granting summary judgment to appellees because a joint
enterprise existed, imposing vicarious liability upon appellees. 
To find that a joint enterprise existed, Arkansas law requires only
a showing of: (1) a common object and purpose of the undertaking;
and (2) an equal right to direct and govern the movements and
conduct of each other in respect to the common object and purpose
of the undertaking.  RLI Insurance Co. v. Coe, 306 Ark. 337, 813 S.W.2d 783 (1991).  We have stated that the doctrine of joint
enterprise is a very complex doctrine and have noted that it has
generally "fallen into disrepute."  Neal v. J.B. Hunt Transp.,
Inc., 305 Ark. 97, 101, 805 S.W.2d 643, 645 (1991) (citing W. Page
Keeton, et al., Prosser and Keeton on the Law of Torts,  72, at 521 (5th
ed. 1984)).  In Neal, we said that "[w]hile we are not enamored of
the joint enterprise doctrine, it is a part of the common law of
this State."  Id. at 101, 805 S.W.2d  at 645.  We determined that
the proper query for joint enterprise is whether there is enough
evidence to show "an equal right to direct and govern the movements
and conduct of each other in respect to the common object and
purpose of the undertaking."  Id. at 101, 805 S.W.2d  at 645.
     Appellants argue that appellees formed a joint enterprise by
engaging in the one hunt that resulted in Larry Jr.'s death.  The
evidence shows that the group lodging in Mr. Bartlett's house may
have had a common object and purpose in renting space in the house
while hunting deer.  However, there is no evidence to prove that
any of the hunters had an equal right to direct and govern the
movements and conduct of the group, or each other, with respect to
the common object and purpose of the undertaking.
     Because the essential elements for a joint enterprise have not
been proven, we conclude that the trial court did not err in
finding that Mr. Bartlett and the other hunters were not involved
in a joint enterprise.
Associations and Clubs:
     Appellants also argue that the trial court erred in finding no
legal basis for the vicarious liability of the hunters because they
were members of a hunting club or association.  The necessary
predicate for reaching the question whether there is a legal basis
for the application of vicarious liability to members of an
association is a determination that an association or club was
formed at all under the circumstances of this case.
     We have defined an "association" as "a body of persons acting
together, without a charter, but upon the methods and forms used by
corporations, for the prosecution of some common enterprise." 
Weaver v. First Nat'l Bank of Memphis, Trustee, 216 Ark. 199, 207,
224 S.W.2d 813, 817 (1949).  At issue in Weaver was whether the
Menasha Outing Club, an unincorporated association formed as a
hunting and fishing recreational club, was authorized to sell
property belonging to its members without the appellant's consent. 
It was uncontested that some sort of organization had been formed,
and the Club operated under its own bylaws.  Id.  The court
determined that it was appropriate to look to the Club's bylaws and
supporting documents because such evidence "was competent to prove
anything that the parties said or did in the formation of the
association in order to determine what the nature of the
association was . . . ."  Id. at 207, 224 S.W.2d  at 817 (quoting
Harris v. Ashdown Potato Curing Ass'n, 171 Ark. 399, 284 S.W. 755
(1926)).  We noted that the Club was organized for the pleasure of
its members rather than for profit, with no attempt to incorporate. 
Id.
     While the issue in Weaver is different, the language on
associations is instructive.  Here, there were no such bylaws or
efforts to incorporate or create any formal organization.  The
group staying at Mr. Bartlett's house had no membership
requirements or elected officers.  It was shown that Mr. Bartlett
was the sole party with authority over the operation of the camp. 
The property was owned by Mr. Bartlett, and the hunters abided by
his terms without any written or other formalized agreement.  The
other hunters possessed no ownership rights in the property.  Each
one was paying $100 a season for the privilege of sleeping and
eating at the house, although no joint or communal arrangements had
been made.  There was no promise of future years' hunts at a fixed
amount, and no promise of a particular place in which to hunt.  The
hunters understood that Mr. Bartlett did not tolerate drinking
alcoholic beverages on the property, although again this was not a
formal rule.  Unlike the language quoted above on the definition of
an association, the hunters did not appear to act upon the methods
or forms used by corporations, or upon any formalized methods or
forms at all.  Neither did they have any apparent right of control
or voting rights.  Therefore, unlike Weaver, there was no showing
of an intent, express or implied, to create a club or association.
     In our decision in Harris v. Ashdown Potato Curing Ass'n,
supra, we stated that "the mere purchase of space in the curing-
house by one who was not otherwise interested in the business would
not constitute a membership in the association . . . ."  Harris,
171 Ark. at 411, 284 S.W.  at 760.  Harris is analogous to the case
before the court because the depositions and statements indicate
that the hunters thought that they were basically purchasing the
right to occupy and eat in Mr. Bartlett's house.  There is no
indication that they thought they were purchasing a membership in
an association that would entitle them to have future rights or
interests in the property.  There is evidence that the hunters
shared meals and that they followed the practice of dividing the
kill with the owner of the dogs, as well as sometimes sharing their
kill with other hunters.  There was no genuine issue of material
fact contrary to the showing that these practices were based upon
the decisions of each individual hunter.
     Both appellants and appellees agree that this court has not
imposed vicarious liability on members of an unincorporated
association for the negligence of one member of the group solely on
the basis of membership in the group.  Appellants cite us to two
cases that arose out of federal court in support of their argument
that Arkansas law favors holding members of an association or club
vicariously liable for the tortious conduct of its members.  In
United Mine Workers v. Coronado Co., 259 U.S. 344 (1922), the
Supreme Court determined that the individual members of a local
labor union could be held liable for damages resulting from the
violent acts of a few of the members.  The union operated under a
constitution; and it had an express joint purpose, elected
representatives, and an organization of principal officers.  Id. 
The Court stated that associations cannot be sued in the
organization's name, but liability may be had against each
individual member.  Id.  The Court then carved out a special
category of such organizations in the labor field and concluded
that such organizations may be sued in federal court for their
tortious acts; however, this decision rests upon the existence of
an association.  Id.
     Next, appellants cite us to Ketcher v. Sheet Metal Workers'
Int'l Ass'n, 115 F. Supp. 802 (E.D. Ark. 1953).  This case also
involved an unincorporated international labor union.  The Ketcher
court restated the principle that an unincorporated association may
be liable for the tortious acts of its agents, although the
association cannot be sued as an entity.  Id.  These are recognized
principles of law and would be applicable to the case at bar only
if we determine that an association existed with respect to these
hunters.
     Unlike United Mine Workers and Ketcher, this case does not
involve an associated or incorporated group.  Rather, in this case,
the members had only the rights to occupy Mr. Bartlett's house and
take meals there.  They had no written "constitution" or agreement,
and the only commonality of purpose was to eat and sleep in a place
near hunting woods.  Unlike United Mine Workers and Ketcher, the
evidence in this case gives us no indication that a club or
association, incorporated or unincorporated, was formed.
     Viewing the evidence in the light most favorable to the party
opposing the motion, we conclude that there is no genuine question
of material fact as to the nonexistence of an association or club. 
The evidence shows that such an entity was neither intended nor
created.  We affirm the trial court's finding that appellees were
not vicariously liable for the tortious act of Mr. Bartlett on this
basis.
     Even if an issue of material fact remained as to the formation
of an association or the existence of a joint enterprise, it would
still not be necessary to return this matter for a jury
determination of that question.  This court has most frequently
applied the principles of vicarious liability in the context where
it has found a master-servant or agency relationship, see St.
Joseph's Regional Health Ctr. v. Munos, 326 Ark. 605, 934 S.W.2d 192 (1996); or in automobile cases, see Reed v. McGibboney, 243
Ark. 789, 422 S.W.2d 115 (1967) (holding that there was sufficient
evidence "of community of interest and of an equal right to share
in the control and operation of the vehicle to warrant the
submission to the jury of [the defendant's] vicarious liability
upon either the theory of joint enterprise, or the theory of
agency, or both").  
     Prosser states that the basis of a finding of imputed
vicarious liability is still negligence, although the law has
effectively broadened the action by imposing the negligence on an
innocent defendant.  Prosser and Keeton on the Law of Torts, supra  69,
at 499.  To prove a cause of action based on negligence, the
plaintiff must not only prove both that he sustained damages and
that the defendant was negligent, but also that the defendant's
negligence was the proximate cause of the damages.  Ouachita
Wilderness Inst. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997).
     In Craig v. Traylor, 323 Ark. 363, 915 S.W.2d 257 (1996), the
court stated that proximate cause must be determined before fault
may be assessed and that proximate cause is typically a question
for the jury.  Id.; see also Ouachita Wilderness Inst., 329 Ark. at
414, 947 S.W.2d  at 785.  The only time that proximate cause may
become a question of law is when "reasonable minds could not
differ."  Id. at 370, 915 S.W.2d  at 260.  The court defined
"proximate cause" as "that which in a natural and continuous
sequence, unbroken by any efficient intervening cause, produces the
injury, and without which the result would not have occurred."  Id.
at 370, 915 S.W.2d  at 260 (quoting Williams v. Mozark Fire
Extinguisher Co., 318 Ark. 792, 888 S.W.2d 303 (1994)).
     The Supreme Court of Alabama has considered this issue in Hall
v. Booth, 423 So. 2d 184 (Ala. 1982).  In Hall, the only issue on
appeal was whether the members of an unincorporated association
were vicariously liable for the negligent shooting of a thirteen-
year-old boy during a deer hunt.  Id. at 185.  The trial court had
granted summary judgment with respect to all members of the club,
except the member who accidentally shot and killed the boy.  Id. 
The court determined that while the acts of the other hunters who
were conducting the hunt may have been negligent, the appellant had
the burden of proving that the appellees' negligence was the
proximate, or direct and immediate, cause of the injury.  Id.  The
court concluded that it would not extend the liability of the
member who fired the fatal shot to the other members because the
appellant had failed to meet his burden of proving the element of
proximate causation, and it affirmed the summary judgment.  Id.
     In this case, the trial court found that the proximate cause
of the accident was the negligence of Mr. Bartlett only, and that
his negligence was not imputed to appellees.  Viewing the facts in
the light most favorable to appellants, even if appellees
negligently participated in the illegal act of running dogs to
harvest a deer, Mr. Bartlett's negligent act was the immediate and
direct cause of Larry Jr.'s death.  The trial court correctly found
that Mr. Bartlett's act was the proximate cause because it broke
any causal chain that would be necessary to broaden his liability
to appellees.
     We conclude that there is no genuine issue of material fact
and that the trial court did not err in finding that the liability
of Herbert Bartlett did not extend to appellees.
     Affirmed.