If I heard the facts correctly and the facts were reported correctly,
this might be a contributory negligence situation where the plaintiff's own
negligence is so great as to bar suit.

      Bird hunters use a protocol to minimize this very predictable and
recognized dangerous error.  For example, hunt while walking in a inverted
V with the lead hunter only shooting straight ahead and the sides only
shooting to towards their side of the inverted V.

      The injured person exited the V looking for a potentially downed
bird.  That is quite normal, but it does increase the duties of all
involved to know the location of all involved.  The V changed direction of
walking.  That is quite normal, but "not good" when a member has left the V
unless the change in direction was away from the missing member.  The V
moved away from the missing member.  All are thus taking on additional
duties to know dynamically changing locations.  (The best suit is against
the Secret Service member who is licensed bird hunter as the superior
knowledge of both the body guard and the hunter come into play, and members
of the V do have a duty to rescue.)  The person who left the V changed
directions of walking.  Again, "not good" if the change is towards the
moving V.  However, when the missing member changes directions as well as
when the V changes directions both are obligated to vocalize the change and
obtain a vocalized confirmation.  (In the real word this often is not
done.)  Especially bad was the lack of vocalization of the missing member's
change of direction (e.g. contributory negligence).  The combination of the
walking V and the missing member in the brush flushed a bird on Cheyney's
side of V and Cheyney rotated towards the flush, firing at sound with a
necessarily very narrow field of vision (i.e., end of barrel).

      This sport requires conditioned reflexes that operate within the zone
of feasible physical action predominantly prior to deliberate cognition
(e.g., recall VP Quayle's endangered quail).  As one ages the microseconds
defining the zone of feasible physical action prior to deliberate cognition
increases.  The hunter can still hit the bird, but the hunter can not "see"
the context of the bird.

      Cheney is liable for the inappropriate discharge  Cheney could be
liable for not stopping hunting after his age would not let him limit his
shot selection to safe shots.  The injured hunter is liable for not
vocalizing (and Cheney is liable for not noticing the unvocalized change of
direction and for not obtaining a vocalized confirmation of the V's change
of direction).

      Not to be unkind, but the pre-injury photograph of the injured hunter
could support an inference of a work life expectancy of relatively few
years.  While Cheney might be liable, the primary damages are likely to be
medical expenses, especially after, at a minimum, off setting the injured
hunter's own negligence.

Michael

Professor Michael J. O'Hara, J.D., Ph.D.
Finance, Banking, & Law Department        Editor, Journal of Legal
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University of Nebraska at Omaha           www.JournalOfLegalEconomics.com
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