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Punkin Chunkin lawsuit dismissed after agreement

James Fisher
The News Journal
Bill and Dawn Thompson, Punkin Chunkin volunteers, sit in an ATV during the 2013 Punkin Chunkin event in Bridgeville.

A lawsuit that spooked the famed gourd-hurling Punkin Chunkin contest away from its site at a Sussex County farm has been quietly resolved on undisclosed terms.

The lawsuit was filed in 2013 by Daniel Fair, a volunteer "spotter" at the 2011 event. Spotters spent days riding all-terrain vehicles through a field to help determine the distances competitors flung their pumpkins with cannons, catapults and other custom-built machines. The event attracted thousands of spectators and was broadcast nationally on television.

Fair's complaint alleged the landowner of the Punkin Chunkin property, Wheatley Farms Inc., and the Punkin Chunkin Association were both liable for a serious spinal injury he suffered when the ATV he was riding flipped. Fair lost his job and had great difficulty walking after the accident, according to court documents.

A small notice in the court docket for the case indicates it was "dismissed with prejudice," with the consent of all the parties to the suit, on June 26. That method of ending a case prevents Fair from reactivating the same complaint later.

Stephen A. Hampton, the attorney representing Fair, declined to explain what led his client to agree to end the lawsuit well before trial. A month ago, Wheatley Farms and the Punkin Chunkin Association had filed court briefs disparaging Fair's legal claims and encouraging a judge to dismiss the case.

"The parties mutually agreed to resolve the matter," Hampton said. Asked if his client was satisfied with the outcome, Hampton said only, "It was resolved by agreement of the parties."

Fair's complaint sought at least $4.5 million in damages, and after it was filed, Wheatley Farms owner Dale Wheatley said Punkin Chunkin could no longer happen on his property. It is set to take place Nov. 7-8 this year on Dover International Speedway's grounds instead. Attendance at recent Punkin Chunkin events has hovered around 20,000 people over several days, and competitors in its air cannon division are getting ever closer to a goal of firing a pumpkin a mile.

Eviction from Wheatley's property caused Chunk organizers to openly contemplate leaving Delaware if the Legislature couldn't give them some legal protection from similar lawsuits. The General Assembly considered a bill from Rep. Brian Pettyjohn, R-Georgetown, to do that but failed to pass it.

Pumpkins are ready to be launched at the World Championship Punkin Chunkin contest in Bridgeville on Nov. 3, 2013. A lawsuit filed about the event has been dismissed.

Eventually, organizers canceled the 2014 Chunk, the first time gourds stayed grounded since the first Chunk in 1986, when it was a much smaller shindig. The Punkin Chunkin Association's former president resigned in the wake of angst about the cancellation.

In late May, the Punkin Chunkin Association and Wheatley Farms filed briefs in the lawsuit attacking Fair's account of how his accident happened and denying they were legally responsible for causing it.

The Wheatley Farms says Fair, in depositions and filings, alleged either a "depression" or an "elevated path" in the field caused his accident. "The evidence demonstrates there was nothing inherently dangerous about the elevated path. Its existence was obvious and known to all," the Wheatley brief says, and it estimates Fair, a repeat volunteer, drove an ATV over it 150 times between 2007 and 2011 without a problem, as did plenty of other people.

Fair was at the Chunk entirely of his own volition, the brief argued; he could have left at any point without organizers faulting him, but he chose to stay for the recreation of it all, and thus assumed any risks of being there.

Fair "got to drive around [some witnesses will say unsafely speed around] on his souped-up ATV across farmland for three days, which fit perfectly with his personal interest in riding over 'farmland,' " the brief said. "Let us not forget, too, that plaintiff got an enviable, front-row seat to a wildly popular, nationally-televised spectator event."

Contact James Fisher at (302) 983-6772, on Twitter @JamesFisherTNJ or jfisher@delawareonline.com.