Major Steve Clair of the Flagler County Sheriff’s Office said that Egan had instructed Clair to stay at their campsite, but Simmons was looking for oranges. Egan had shot earlier at the hog and then heard Simmons rummaging in the woods. He shot her in the legs with a .30-caliber bullet.
Clair says that they are not going to charge Egan because “he was very sympathetic that he’d shot his girlfriend.” It is certainly good to have sympathy when you shoot your girlfriend, though the mistaken “hog” may be a bit less sympathetic when she gets back from the hospital.
The injury is a clear case of negligence. All hunting regulations state that a hunter should have visual contact before shooting at an animal. Egan shot in the blind after hearing the “hog” in the underbrush. We have previously discussed such hunting accidents (here and here and here and here and here) and “buck fever” cases. While I agree with the decision not to charge a crime, it is an interesting example of reckless conduct with a weapon that is not treated as a criminal act. Reckless driving is often charged as a crime, but not reckless hunting. Since I have often questioned criminal negligence and criminal recklessness prosecutions, I tend to view these cases as matters for tort liability. However, there is a lack of consistency in how recklessness cases are handled in hunting versus non-hunting cases.
While there is no indication of that Simmons will be less than sympathetic and sue, it would make for an intriguing case. Would Simmons’ leaving the campsite be viewed as contributory or comparative negligence. Hunting communities often expect a certain wherewithal from citizens. Consider Maine hunter Donald Rogerson. Mistaking a 37-year-old housewife for a white-tailed deer, Rogerson shot and killed her. Locals insisted that the victim (who had recently moved from Iowa) was to blame because she was wearing white mittens during deer season. And a Bangor, Maine, jury cleared him of manslaughter.
Of course, in a comparative negligence jurisdiction, Simmons would be viewed as far less negligent than her boyfriend. Indeed, even in a contributory negligence jurisdiction, Egan could be viewed as having the “last clear chance” under the theory of the “inattentive plaintiff.”
The most challenging question for Egan, however, is what do you get your girlfriend after mistaking her for a pig and shooting her. Any suggestions?
Source: Yahoo