I can’t figure out why this Equine Liability case is winning, except it is in Utah.Posted: July 25, 2022
Utah historical seems to write big checks to injured kids, seems to be the case here.
Nasserziayee v. Ruggles (D. Utah 2022)
State: Utah, United States District Court, D. Utah
Plaintiff: Farooq Nasserziayee and Lenore Supnet, and daughter, M.N., a minor
Defendant: Jack Ruggles and Jane Doe Ruggles, Zion Canyon Trail Rides at Jacob’s Ranch, LLC, Joshua Ruggles; Clay Doe
Plaintiff Claims: negligence, gross negligence, infliction of emotional distress, and negligent infliction of emotional distress
Defendant Defenses: Assumption of the Risk, Express Assumption of the Risk, Release
Holding: Partial win for the defendants but going to trial
The plaintiff’s mother, father and daughter went on a trail ride. The daughter fell off the horse and was injured. Now she wants money.
The facts of the case are interspaced in the opinion, so they are pulled here in an attempt to explain what happened that gave rise to this litigation.
On March 4, 2020, Nasserziayee and Supnet filed a complaint alleging their minor daughter, M.N., was badly injured in a March 21, 2016, fall off of a horse at Jacob’s Ranch.
First, Plaintiffs submitted evidence that helmets were not offered. Second, Plaintiffs submitted evidence that Clay Doe encouraged the horses to go faster at one point, even though the horses carried inexperienced riders.
The plaintiff’s signed up to go for a horseback riding trip. The father signed a release. It is disputed whether the plaintiffs were offered a helmet prior to the ride. It is disputed that the trip leader encouraged everyone to hurry up, about the same time, the daughter fell off her horse.
Analysis: making sense of the law based on these facts.
The first issue the court reviewed was whether the defendant could be grossly negligent if the defendant did not offer the plaintiff’s helmets to wear before the ride.
“In Utah, gross negligence is ‘the failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result.'”Under Utah law, resolution of a gross negligence claim is typically within the province of the factfinder. Summary judgment is only appropriate on a gross negligence claim when “reasonable minds could reach but one conclusion” as to whether a defendant observed even slight care.
Both parties submitted affidavits from themselves and people on the ride. The plaintiff’s affidavits stated the defendant did not offer the riders any helmets. The defendants’ affidavits stated that helmets were offered. As such the court found there was a factual issue that could not be resolved. However, without any analysis, the court stated that failure to offer a helmet could be found to be gross negligence.
What was very interesting was how the court looked at the statement in the release that stated the plaintiffs were offered a helmet.
Defendants also suggest that because Plaintiffs signed the Release, which contains a clause agreeing that the signer had been offered a helmet, no factfinder could conclude that Plaintiffs were not offered helmets. While that clause may be evidence that Plaintiffs were offered helmets and may be relevant in evaluating an assumption of risk defense, it is not dispositive of helmets being actually provided. Resolution of such a question is within the province of the factfinder.
Rarely, if ever have a contract provision, which makes a statement been ruled as not controlling. This does not bold well for releases in Utah to some extent.
The next issue was assumption of the risk both as an express assumption of the risk agreement signed by the father, the risk assumed by statute with the Utah’s Equine and Livestock Activities Act, and the risk of falling you assume when you get on a horse. However, whether a plaintiff assumed the risk is usually a decision for the fact finder or jury so although a great defense is rarely wins at the motion for summary judgment level.
Utah recognizes three types of assumption of the risk.
There are three types of assumption of risk in Utah: primary express, primary implied, and secondary.
• Primary express assumption of risk “involves a contractual provision in which a party expressly contracts not to sue for injury or loss which may thereafter be occasioned by the acts of another.”
• Primary implied assumption of risk occurs in inherently risky activities, where the defendant as a matter of law owes no duty of care to a plaintiff for certain risks because no amount of care can negate those risks.
• Secondary assumption of risk occurs when a person voluntarily but “unreasonabl[y] encounter[s] . . . a known and appreciated risk.” Secondary assumption of risk is treated akin to contributory negligence, and is “no longer recognized in Utah as a total bar to recovery.”
The court then proceeded to eliminate assumption of the risk as a defense at this level of the trial and to a certain extent, back at the trial level.
Primary express assumption of risk does not bar Plaintiffs’ claims. Primary express assumption of risk allows a party to contract with another that they will not sue in case of injury or loss. This type of assumption of risk is more closely related to contract law, and typically takes the form of preinjury liability releases, such as the Release in this case
The Release shows that Plaintiffs only agreed to assume those “risks, conditions, & dangers [which] are inherent” to horseback riding. As discussed below, the negligence Defendants are accused of is not the type “inherent” to horseback riding. Accordingly, primary express assumption of risk does not bar Plaintiffs’ claims on this record.
I always though falling off a horse was an inherent risk of horseback riding. However, this court does not see the case in that way. Assumption of the risk as expressed in the release is not a bar to the claims because “how” the child fell off the horse is the issue according to the court.
The court even stretched further to deny assumption of the risk as defined by primary implied assumption of the risk.
Primary implied assumption of risk does not bar Plaintiffs’ claims. Primary implied assumption of risk only applies to “inherently risky” activities. In order for primary implied assumption of risk to bar a plaintiff’s claims, the injury must have resulted from a risk “inherent” to an activity, and be one that a defendant cannot eliminate through imposition of reasonable care. Utah’s Equine and Livestock Activities Act (the “Act”) has essentially codified this doctrine as it relates to horse-related injuries. Both the Act and the doctrine of primary implied assumption of risk distinguish between injuries resulting from the inherent risks of the relevant activity and injuries resulting from negligent behavior. Inherent risks of horseback riding may include a horse’s propensity to bolt when startled or other unpredictable behavior. It may also refer to a rider’s failure to control the animal or not acting within one’s ability. If an injury “was caused by an unnecessary hazard that could have been eliminated by the use of ordinary care, such a hazard is not . . . an inherent risk” of an inherently risky activity
The court found that secondary assumption of the risk is not a bar to the claims also.
Secondary assumption of risk does not bar Plaintiffs’ claims. Secondary assumption of risk, “the unreasonable encountering of a known and appreciated risk, ” is more properly viewed as an “aspect of contributory negligence.” Contributory negligence is not a complete bar to recovery, but rather involves the apportionment of fault. Once the combined negligence of plaintiff and defendant has been established, evaluation of a comparative or contributory negligence defense is within the province of the factfinder.
The court did rule in favor of the defendant on the intentional infliction of emotional distress claim finding that under Utah’s law the actions of the defendant in causing this injury must almost be intentional.
Rather, Utah courts have described the type of conduct required to sustain a claim for IIED as “extraordinary vile conduct, conduct that is atrocious, and utterly intolerable in a civilized society.” The Tenth Circuit has similarly described Utah law as setting “high standards” to establish a claim for IIED.
So Now What?
This case has several issues that raise concerns about the law in Utah now an in the future.
The first is discounting the requirements or agreements in a contract, in this case the release. When you sign a contract, you agree to the terms of the contract. The release stated the plaintiff was offered a helmet. The court did not care.
The next issue is failing to offer a helmet to someone is possibly gross negligence. This is not that far of a stretch, but the first time I have seen it in any outdoor recreation case. However, failure to provide safety equipment that usually accompanies any recreational activity is an easy way to lose a lawsuit.
But these two issues create an additional problem. How do you prove you offered a helmet or other safety equipment to someone. Normally, you would put it in the release. Here that does not work. Videotape the helmet area? Have a separate document saying you agree not to wear a helmet?
Finally, you can see where a case is headed or what type of attitude a court has about a case when all three forms of assumption of the risk recognized under Utah’s law are found not to apply in this case. The court was right that the language of the Utah Equine and Livestock Activities Act only covers the inherent risks of horseback riding and therefore, provides no real protection.
I’ve said it for years, the equine protection laws enacted in all 50 states are 100% effective. No horse has been sued since those laws have been in place. However, their effectiveness in stopping claims again, the horse owners or stables are worthless. In fact, lawsuits and judgements over injuries caused by horses have increased since the passage of the equine liability laws.
When you are lifted up or climb up onto an animal whose back is 5′ to 6′ above the ground, if you fall off that animal don’t you think you can suffer an injury? This court does not think so.
Copyright 2020 Recreation Law (720) 334 8529
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