Michigan Equine helped the plaintiff more than the stable and helped prove there may be gross negligence on the part of the defendant
Posted: January 11, 2016 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Michigan, Release (pre-injury contract not to sue) | Tags: Equine, Equine Liability Act, Horse, Michigan, Michigan Equine Liability Act, Saddle, stable, Trail Ride Leave a commentPlaintiff argues gross negligence claim which appellate court agreed raise enough triable issues of fact to send the case back to the trial court.
Hawkins, v Ranch Rudolph, Inc., 2005 Mich. App. LEXIS 2366
State: Michigan, COURT OF APPEALS OF MICHIGAN
Plaintiff: Bret D. Hawkins and Erin Hawkins
Defendant: v Ranch Rudolph, Inc. and Circle H Stables, Inc.
Plaintiff Claims: Gross Negligence
Defendant Defenses: Actions not negligent
Holding: For Plaintiff
Year: 2005
The plaintiffs were on their honeymoon and signed up for a trail ride. They chose the “Wrangler Ride” offered by the defendant because the groom had never been on a horse before. The Bride had only been on a horse once when she was eleven. The Wrangler Ride was a four mile single file ride on trails through the woods.
The trail guide or wrangler chose a horse for the groom that was very gentle, normally used for kids. The wrangler gave everyone basic instructions how to stay on the horse and use the reins. The wrangler saddled the horses and double checked the saddles before and after the guests mounted their horses.
The groom claimed after mounting the horse he complained that his saddle was not securely fastened. The wrangler did not recall the groom making this request. She also did not notice the saddle was loose while the groom was mounting the horse.
During the ride the wrangler asked if they wanted to trot their horses and asked if anyone was opposed to the idea. She also said if they were having trouble to yell.
At this point the plaintiff’s version of the facts are so fare outside of the scope of a normal operation or how horses would respond it is clear the facts were altered or made up to support their claims.
According to plaintiffs, Ridge and her horse then “bolted” into a fast, or full-out run, and the other horses followed her lead. Both plaintiffs stated that when their horses began running they were too surprised or shocked to yell and were just trying to hang on. According to Bret, his saddle slid to the right and he grabbed the saddlehorn and the back of the saddle as instructed but was still falling off his horse. He stated that his arm hit a tree so hard that he suffered a humeral fracture. He then fell from the horse.
However the wrangler and other people on the ride described the events quite differently.
According to Ridge, a trot is a fast walk, “slower than a canter, and much slower than a run or gallop.” Other experienced riders in the group characterized a trot in similar language.
One of the other participants attested that he checked the saddle after the fall and it was not loose.
On top of that the facts are just too absurd to be believable. No trail ride, no matter how good the riders are going to take off on a gallop. It is dangerous for riders of all abilities and horses. Second, normally, the first thing someone in trouble or seeing a risk does is scream. Thirdly, if you are holding on to the saddlehorn with one hand and the back of the saddle with the other, how does your arm fly out and strike a tree?
The trial court could not find facts in the plaintiff’s version of the facts that would rise to the level required to prove negligence under Michigan law. The release voided all ordinary negligence claims so only the gross negligence claim was viable.
The case was dismissed and the plaintiff’s appealed.
Analysis: making sense of the law based on these facts.
The basic claim of the plaintiff is there were issues of fact in dispute giving rise to enough for a jury to decide.
The first issue the court addressed was the witness statements, but not directly. Rather the court looked at what a witness may say. Basically it is about anything as long as it is relevant to the case. Lay witnesses, witnesses that are not qualified as an expert witness, can provide opinions.
As an initial matter, plaintiffs’ testimony was admissible because it was based on their personal observations and perceptions. MRE 602. To the extent that plaintiffs’ testimony merely amounted to opinion, such testimony would nevertheless be admissible evidence. MRE 701. “MRE 701 allows opinion testimony by a lay witness as long as the opinion is rationally based on the perception of the witness and helpful to a clear understanding of his testimony or a fact in issue.” “Once a witness’s opportunity to observe is demonstrated, the opinion is admissible in the discretion of the trial court, and the weight to be accorded the testimony is for the jury to decide.” Moreover, laypersons are permitted to testify regarding speed. Therefore, that plaintiffs lacked experience with horses merely goes to the weight of their testimony not to its admissibility.
So no matter how farfetched or contrived the statements of a witness, if they cannot be proved as false, they are admitted into court.
The court then looked at gross negligence in Michigan. “…gross negligence should be defined as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.”
Since under Michigan and most other (if not all) state laws a release does not void a claim for gross negligence, the only claims left of the plaintiff were the gross negligence claims.
The Michigan Equine Liability act allows the use of a release by horse owners.
§ 691.1666. Notice; posting and maintenance of signs; contract; contents of notice.
(2) A written contract entered into by an equine professional for providing professional services, instruction, or rental of equipment, tack, or an equine to a participant, whether or not the contract involves an equine activity on or off the location or site of the equine professional’s business, shall contain in clearly readable print the warning notice set forth in subsection (3).
The court pointed out that the act did not provide protection for the “equine professional.” As such, the only claims available to the plaintiff were the claims for gross negligence.
The court then found that the plaintiff’s claims if viewed in a light most favorable to them could be found to be valid to prove a claim of gross negligence.
We conclude that viewing the evidence in the light most favorable to plaintiffs, reasonable minds could differ regarding whether her conduct of taking a totally inexperienced rider on a fast ride was so reckless as to demonstrate a substantial lack of concern for whether an injury resulted.
There is a dissenting opinion that found the trial court was correct in its analysis of the facts. However the majority opinion found that the issue at trial in this case was the decision to speed up the ride.
However, in our collective opinion, our point of departure from our esteemed colleague’s dissenting opinion is the trail guide’s decision to speed up the pace when plaintiff had never ridden a horse before. For a first time rider, yelling “Whoa Nellie” or in this instance, “Whoa Tye” hoping to slow the horse down or to obtain the trail guide’s attention for help could be difficult.
The court went on to explain its reasoning.
Ridge was in control of the horses’ speed, as the guide riding the lead horse. And Bret’s horse “bolted” not because it was scared, which would clearly be an inherent risk of an equine activity, but because it was following Ridge’s lead. It cannot be disputed that she made the conscious decision to “speed things up a little bit,” knowing that Bret lacked the requisite experience to control the animal on which he rode. It would seem that it was indisputably an important part of Ridge’s job to look after the safety of those placed in her care.
The court sent the case back to trial.
A reasonable person could conclude that Ridge’s conduct of taking plaintiffs on a fast ride given their known lack of experience unreasonably added to the risks of the already dangerous activity and was thus so reckless as to demonstrate a substantial lack of concern for whether an injury resulted.
So Now What? (Motivational get them to do something post)
First the Michigan Equine Liability Statute only protects a horse owner from the actions of the horse. There was no protection for the actions of the wrangler or the stable. No matter how written all equine liability acts have been written in a similar way leaving wide open any lawsuit claiming the injury the plaintiff received was do the owner’s negligence.
As I have said in the past, Equine Liability Acts are 100% effective, since their enactment no horses have been sued. However the acts were so glaring deficient they have seemingly increased the number of lawsuits against horse owners.
This defendant wisely followed the requirements of the act and had guests sign a release.
The second issue is wild statements of the injured guests. Actually there are very little ways to counteract these statements except for one. If you can record either in writing, in the minds of witnesses or by a tape the statements of the possible plaintiffs. Keeping good notes on what they said might allow you to at least partially discredit later allegations, but only at trial.
Another real issue that came to light in this case is the other riders who were involved with their actions and opinions. One rider checked the saddle to see if it was tight and others opined they never went faster than a trot. Keeping the other witnesses and participants to an activity engaged and happy can be of infinite value to you later. Remember a Victim is not only the person who was hurt but anyone who saw the victim or was on the trip. These people may need care, maybe not first aid, but at least someone to help them deal with the issues they may be having.
Although those statements would have little value in pre-trial motions, their testimony at trial is the most valuable statements made on the stand. Jurors know that the other guests had a better view, a better understanding of what happened and no axe to grind or wallet to defend.
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Copyright 2016 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
Mobile Site: http://m.recreation-law.com
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, Horse, Stable, Equine, Equine Liability Act, Michigan Equine Liability Act, Trail Ride, Saddle, Michigan,
Recreation Law 