Pelkey v. Viger

Peters, J. Appeal from an order of the Supreme Court (Ferradino, J.), entered February 15, 2001 in Saratoga County, which denied defendant’s motion for summary judgment dismissing the complaint. Plaintiff commenced this action to recover for injuries he sustained when he was struck by a bullet while hunting in the Town of Wilton, Saratoga County. The record reflects that plaintiff and his companions were separated into two groups. Plaintiff, Philip Viger, Jr. and Edward Dano were designated to drive the deer towards both defendant and his brother, Lucky Viger, who were positioned some distance ahead. At one point, plaintiff spotted three deer and immediately discharged his weapon. He then heard two additional shots, fell down and called for assistance when he recognized that he had been shot in his left thigh. Defendant related that prior to the group splitting up, discussions were had as to where each hunter would be situated. At the time of the incident, defendant, who only had direct sight of his brother, discharged his weapon after he observed three deer running in an open area. Shortly thereafter, defendant was notified by his brother that plaintiff stated that he shot [900] himself. When defendant went to assist plaintiff, plaintiff again admitted to him that he shot himself. Police investigation resulted in the recordation of statements from each member of the hunting group who detailed their own position and that of their party. Plaintiff, for the first time, alleged that while he did not know who shot him, he was sure that he did not shoot himself. Defendant moved for summary judgment asserting that plaintiff had assumed the risk of injury by participating in the sport of hunting and that no evidence supported a finding of negligence on his part. Supreme Court denied the motion, finding a question of fact as to whether defendant’s gun fired the bullet that is still lodged in plaintiff’s thigh. Defendant appeals. Preliminarily, we find that the police report that plaintiff submitted in opposition to defendant’s motion was properly considered. Wholly acknowledging the requirement of tender in admissible form when opposing a motion for summary judgment (see, Zuckerman v City of New York, 49 NY2d 557, 562), we have recognized that “hearsay evidence that is excludable at trial may be presented in opposition to a motion for summary judgment, so long as it is not the only proof submitted” (Murray v North Country Ins. Co., 277 AD2d 847, 850). In determining “ ‘whether the hearsay document offered in evidence has sufficient independent indicia of reliability to justify its admission’” (Cramer v Kuhns, 213 AD2d 131, 136, lv dismissed 87 NY2d 860, quoting City of New York v Pullman, Inc., 662 F2d 910, 914, cert denied sub nom. Rockwell Intl. Corp. v City of New York, 454 US 1164), factors considered will include the timeliness of the report, “the skill and/or experience of the investigator * * * and * * * the possibility of bias” (Cramer v Kuhns, supra, at 136). Here, the police investigative report was recorded on an official form and included results by the State Police forensic laboratory which found that the projectile shown in plaintiffs X rays was of a size “consistent with the diameter of a .270 [caliber] to a .30 [caliber] projectile and was not consistent with a .45 [caliber] projectile”; plaintiff was carrying a .45 caliber weapon. 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 AD2d 859, 860, quoting Jackson v Livingston Country Club, 55 AD2d 1045; see, Duncan v Kelly, 249 AD2d 802, 803). Finally, addressing defendant’s assertion that there is no [901] basis upon which liability can be imposed upon him, we note that while plaintiff initially admitted that his gunshot wound was self-inflicted, police reports and forensic evidence are inconsistent with that scenario. Although plaintiff may ultimately be unable to prove that it was defendant’s weapon which fired the projectile that caused his injury, we agree that a triable issue of fact remains as to whether defendant was negligent and whether such negligence caused plaintiffs injury (cf., Jarvis v Eastman, 202 AD2d 826). Mugglin and Lahtinen, JJ., concur.