Federal District Court applying South Dakota law finds release was ineffective in stopping claims for injury that did not occur because of the risk the plaintiff was anticipating.

The plaintiff in this case signed a release to hunt, but was injured by an ATV waiting to hunt. As such the release did not apply.

Wimmer v. Top Gun Guide Serv., 421 F. Supp. 3d 849, 2019 U.S. Dist. LEXIS 185888, 2019 WL 5558308

State: South Dakota

Plaintiff: Anthony Wimmer

Defendant: Top Gun Guide Service, Inc., John Does 1-5

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: for the Plaintiff

Year: 2019


A release must be written to cover all the risks your guests could suffer. Here the release covered hunting and did not cover being hit by an ATV when the plaintiff was not hunting. Write your release to inform your participants and to provide protection for you from all fronts.


This case arose from injuries that plaintiff Anthony Wimmer sustained while on a hunting trip hosted by defendant Top Gun near Aberdeen, South Dakota in April of 2015. Mr. Wimmer is a California resident and Top Gun is a Minnesota corporation. Id. On or about April 9, 2015, Mr. Wimmer arrived in Aberdeen, though he did not hunt on that day. At some point on April 9th, Mr. Wimmer signed a waiver purporting to release Top Gun from liability arising from the hunting trip.

The parties agree that in his deposition Mr. Wimmer testified that he read the release before signing it and that he did not disagree with anything contained therein. Mr. Wimmer also agreed in his deposition that hunting and fishing is a dangerous activity.

On April 10th, Mr. Wimmer arrived at the hunting site and began setting up hunting decoys. Shortly after having finished setting up the decoys, Mr. Wimmer was standing in the field where the hunt was to take place when he was struck from behind “by either an [all terrain vehicle (ATV)] or sled.” The sled was being towed behind the ATV. Id. The ATV was being operated by a Top Gun guide.

Analysis: making sense of the law based on these facts.

The plaintiff argued the normal arguments on why the release should fail. The main one was the release was written specific for the activity of and the risks created by hunting and fishing and at the time of the accident the plaintiff was doing neither of those things. Therefore, the release did not apply, his injuries were outside of the scope of the language of the release.

Plaintiff argues that he had no meaningful opportunity to negotiate the terms of the waiver and so it must be viewed as an “anticipatory release and contract of adhesion, which should be viewed with a skeptical and critical eye,” and any ambiguities should be construed against the drafter. Plaintiff argues that the waiver, by its terms, only applies to the limited activities of hunting and fishing. Plaintiff argues that his are not hunting injuries because, at the time of the accident, he had already finished setting up the decoys and was merely standing in the field waiting to be told what he should do next. Plaintiff urges that such activity should not be considered hunting.

The defendant argued the release was broad and covered the injury the plaintiff sustained and countered the plaintiff’s arguments.

Top Gun’s argument relies on the liability waiver being found to encompass the harm at issue in this case. Defendant then proceeds to argue that the waiver is valid and its enforcement would not contravene South Dakota’s public policy. Defendant argues that releases involving voluntary recreational activities have withstood attacks that they are contrary to South Dakota’s public policy many times before; only an attempted waiver of conduct rising to the level of willful negligence or intentional tort would contravene the state’s public policy. Because Mr. Wimmer does not allege willful negligence or any intentional torts, defendant argues that his claims must fail.

The court then looked at the law of South Dakota where the accident happened and, which law was to be applied, South Dakota law.

Under South Dakota law, a waiver of liability is contractual in nature and is governed by contract law. When interpreting a contract, “[t]he goal . . . is to see that the mutual intent of the parties is carried into effect.” Courts look to the language of the contract to determine the intent of the parties, and afford contractual terms their “plain and ordinary meaning,” “When the meaning of contractual language is plain and unambiguous, construction is not necessary” because the “intent of the parties can be derived from within the four corners of the contract.” (“When the words of a contract are clear and explicit and lead to no absurd consequences, the search for the parties’ common intent is at an end.”).

What most non-lawyers do not understand is a contract must be interrupted solely by the words in the contract. As lawyers say within the four corners of the document. Statements (parol evidence) said before or after the signing of the contract are inadmissible to interpret the contract. The exception to this rule is if the contract is determined by the court to be ambiguous, then evidence outside of the terms of the agreement can be introduced to explain the language of the contract. But only to explain the ambiguous language of the contract.

When a contract is found to be ambiguous, however, “parol evidence is admissible to explain the contract but inadmissible to vary or add terms to the contract.” A contract is not rendered ambiguous merely because the parties now disagree as to their intent at the time of contracting. “Instead, ‘a contract is ambiguous only when it is capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement.'”

The court found that the release was not ambiguous so no other evidence could be introduced to explain the meaning of the release.

The release at issue in the instant case is not ambiguous. Although it must be interpreted and read in a common sense manner. The release, by its terms, covers “all claims, demands, or causes of action, which are in any way connected with [plaintiffs] participation in this activity or [plaintiff’s] use of [Top Gun] equipment…”

The plaintiff and the defendant both argued the issues as they needed. The plaintiff stated he was standing around the, and the defendant argued the plaintiff was hunting. However, the court found the plaintiff was not hunting by law. “As a matter of law, plaintiff could not have legally been pursuing waterfowl because the accident happened long before legal shooting time.”

Under South Dakota law, hunting cannot begin until thirty minutes before sunrise. Since the accident happened several hours before sunrise, the plaintiff was not hunting.

This accident could not, as a matter of law, have been a part of legal hunting. In South Dakota, a hunter may not shoot waterfowl until one half hour before sunrise. At the time of the accident, all preparations for hunting had been completed. The parties were in a waiting period. Instead, plaintiff was struck by a motor vehicle. The fact that plaintiff is claimed to be hunting at the time he was struck by the ATV is irrelevant because being struck by an ATV is not a harm arising out of hunting, especially long before sunrise.

Therefore, the release was not written to cover the accident that occurred to the plaintiff.

The court also added that the release did not cover motor vehicle accidents, which is what occurred to the plaintiff. (Any accident that is caused by something with an engine and tires, the courts usually interpret that as a automobile accident and apply automobile law, on or off road.)

The court then looked at releases and how they are interpreted with respect to high-risk activities under South Dakota law.

First, the more inherently dangerous or risky the recreational activity, the more likely that an anticipatory release will be held valid. That is, individuals who engage in activities like mountain climbing, race car driving, parachute jumping, and the like, are more likely to be held to have an understanding of the risky nature of their chosen activity.

Second, releases are deemed more acceptable when they are written on a separate sheet of paper. Id. It is the first line of reasoning that is most relevant to the instant analysis.

The court stated that if you undertake a high-risk activity you cannot sue for your injuries.

The first line of reasoning recognizes that individuals who voluntarily engage in a particularly dangerous activity for recreational purposes must accept a certain amount of risk that is inherent in said activity. That is, when an individual chooses to go skydiving, signs a release with a vendor providing such services, and is injured while hurtling to the earth, he cannot then sue in contravention of that release. Hunting is likewise a dangerous activity; the hunter voluntarily exposes himself to all the dangers of the firearms enthusiast as well as those of the outdoorsman. It is agreed that the release in this case covers liability arising out plaintiff’s participation in the activity of hunting. However, plaintiff’s participation in the hunt did not cause his injury.

Summing the issues up, the court made the statement that in South Dakota, the Supreme Court looked at the validity of the release as it relates to the activity the release was supposed to cover.

Each case the Supreme Court of South Dakota has considered relating to the application of a release from liability has involved harm that arose out of the activity for which liability was waived.

However, here the plaintiff was not undertaking a high-risk recreational activity. He was standing in a field.

In the instant case, plaintiff’s injury did not arise from his participation in the hunt. He was not accidentally shot by a fellow hunter; he did not strain his back while placing a decoy, nor did he twist his ankle while standing around waiting to be told what to do next. Instead, plaintiff was struck from behind by a motor vehicle at a time before legal hunting could commence, something separate and apart from his participation in the hunt.

The release was signed so the plaintiff could hunt. He was not injured hunting, and the release was not written in a way to cover the risks the plaintiff encountered standing in a field.

The release was thrown out by the court and the plaintiff was allowed to continue his lawsuit.

So Now What?

Too many releases are written to cover the risks of the specific activity, hunting, climbing, rafting, etc. Yet accidents occur in the parking lot, on the way to the activity and just standing around waiting for kayaks to be unloaded, belays to be set up or the guides to get organized.

Make sure your release is broad enough to cover all the risks your clients will encounter during the activity.

At the same time, don’t let an idiot drive an ATV and if people are going to be standing around in the dark, put a bicycle light on them so you can find them.

What do you think? Leave a comment.

Copyright 2020 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

By Recreation Law    Rec-law@recreation-law.com    James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


Have a Comment? Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.