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Need a Handy Reference Guide to Understand your Insurance Policy?

This book should be on every outfitter and guide’s desk. It will answer your questions, help you sleep at night, help you answer your guests’ questions and allow you to run your business with less worry.

Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

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New Book Aids Both CEOs and Students

“Outdoor Recreation Insurance, Risk Management, and Law” is a definitive guide to preventing and overcoming legal issues in the outdoor recreation industry

Denver based James H. Moss, JD, an attorney who specializes in the legal issues of outdoor recreation and adventure travel companies, guides, outfitters, and manufacturers, has written a comprehensive legal guidebook titled, “Outdoor Recreation Insurance, Risk Management, and Law”. Sagamore Publishing, a well-known Illinois-based educational publisher, distributes the book.

Mr. Moss, who applied his 30 years of experience with the legal, insurance, and risk management issues of the outdoor industry, wrote the book in order to fill a void.

There was nothing out there that looked at case law and applied it to legal problems in outdoor recreation,” Moss explained. “The goal of this book is to provide sound advice based on past law and experience.”

The Reference book is sold via the Summit Magic Publishing, LLC.

While written as a college-level textbook, the guide also serves as a legal primer for executives, managers, and business owners in the field of outdoor recreation. It discusses how to tackle, prevent, and overcome legal issues in all areas of the industry.

The book is organized into 14 chapters that are easily accessed as standalone topics, or read through comprehensively. Specific topics include rental programs, statues that affect outdoor recreation, skiing and ski areas, and defenses to claims. Mr. Moss also incorporated listings of legal definitions, cases, and statutes, making the book easy for laypeople to understand.

PURCHASE

 

TABLE OF CONTENTS

Table of Cases

Introduction

Outdoor Recreation Law and Insurance: Overview

Risk

    Risk

        Perception versus Actual Risk

        Risk v. Reward

        Risk Evaluation

    Risk Management Strategies

        Humans & Risk

        Risk = Accidents

        Accidents may/may not lead to litigation

    How Do You Deal with Risk?

    How Does Acceptance of Risk Convert to Litigation?

    Negative Feelings against the Business

Risk, Accidents & Litigation

        No Real Acceptance of the Risk

        No Money to Pay Injury Bills

        No Health Insurance

        Insurance Company Subrogation

        Negative Feelings

Litigation

    Dealing with Different People

    Dealing with Victims

        Develop a Friend & Eliminate a Lawsuit

        Don’t Compound Minor Problems into Major Lawsuits

    Emergency Medical Services

    Additional Causes of Lawsuits in Outdoor Recreation

        Employees

        How Do You Handle A Victim?

        Dealing with Different People

        Dealing with Victims

Legal System in the United States

    Courts

        State Court System

        Federal Court System

        Other Court Systems

    Laws

    Statutes

    Parties to a Lawsuit

    Attorneys

    Trials

Law

    Torts

        Negligence

            Duty

            Breach of the Duty

            Injury

            Proximate Causation

            Damages

        Determination of Duty Owed

        Duty of an Outfitter

        Duty of a Guide

        Duty of Livery Owner

        Duty of Rental Agent

        Duty of Volunteer Youth Leader

        In Loco Parentis

    Intentional Torts

    Gross Negligence

    Willful & Wanton Negligence

    Intentional Negligence

    Negligence Per Se

    Strict Liability

    Attractive Nuisance

    Results of Acts That Are More than Ordinary Negligence

    Product Liability

    Contracts

        Breach of Contract

        Breach of Warranty

        Express Warranty

        Implied Warranty

            Warranty of Fitness for a Particular Purpose

            Warranty of Merchantability

            Warranty of Statute

    Detrimental Reliance

    Unjust Enrichment

    Liquor Liability

    Food Service Liability

    Damages

        Compensatory Damages

        Special Damages

        Punitive Damages

Statutory Defenses

    Skier Safety Acts

    Whitewater Guides & Outfitters

    Equine Liability Acts

 

Legal Defenses

    Assumption of Risk

        Express Assumption of Risk

        Implied Assumption of Risk

        Primary Assumption of Risk

        Secondary Assumption of Risk

    Contributory Negligence

    Assumption of Risk & Minors

    Inherent Dangers

    Assumption of Risk Documents.

        Assumption of Risk as a Defense.

        Statutory Assumption of Risk

        Express Assumption of Risk

    Contributory Negligence

    Joint and Several Liability

Release, Waivers & Contracts Not to Sue

    Why do you need them

    Exculpatory Agreements

        Releases

        Waivers

        Covenants Not to sue

    Who should be covered

    What should be included

        Negligence Clause

        Jurisdiction & Venue Clause

        Assumption of Risk

        Other Clauses

        Indemnification

            Hold Harmless Agreement

        Liquidated Damages

        Previous Experience

        Misc

            Photography release

            Video Disclaimer

            Drug and/or Alcohol clause

            Medical Transportation & Release

                HIPAA

        Problem Areas

    What the Courts do not want to see

Statute of Limitations

        Minors

        Adults

Defenses Myths

    Agreements to Participate

    Parental Consent Agreements

    Informed Consent Agreements

    Certification

    Accreditation

    Standards, Guidelines & Protocols

    License

Specific Occupational Risks

    Personal Liability of Instructors, Teachers & Educators

        College & University Issues

    Animal Operations, Packers

        Equine Activities

    Canoe Livery Operations

        Tube rentals

Downhill Skiing

Ski Rental Programs

Indoor Climbing Walls

Instructional Programs

Mountaineering

Retail Rental Programs

Rock Climbing

Tubing Hills

Whitewater Rafting

Risk Management Plan

    Introduction for Risk Management Plans

    What Is A Risk Management Plan?

    What should be in a Risk Management Plan

    Risk Management Plan Template

    Ideas on Developing a Risk Management Plan

    Preparing your Business for Unknown Disasters

    Building Fire & Evacuation

Dealing with an Emergency

 

Insurance

    Theory of Insurance

    Insurance Companies

    Deductibles

    Self-Insured Retention

    Personal v. Commercial Policies

    Types of Policies

        Automobile

            Comprehension

            Collision

            Bodily Injury

            Property Damage

            Uninsured Motorist

            Personal Injury Protection

            Non-Owned Automobile

            Hired Car

    Fire Policy

        Coverage

        Liability

        Named Peril v. All Risk

    Commercial Policies

    Underwriting

    Exclusions

    Special Endorsements

    Rescue Reimbursement

    Policy Procedures

    Coverage’s

    Agents

    Brokers

        General Agents

        Captive Agents

    Types of Policies

        Claims Made

        Occurrence

    Claims

    Federal and State Government Insurance Requirements

Bibliography

Index

The 427-page volume is sold via Summit Magic Publishing, LLC.

 


Expert testimony is needed when the activity is beyond the scope of the general knowledge of a juror in Connecticut.

In this case, the plaintiff’s claim failed because they needed any expert witness and the one they had hired was disqualified. Without an expert in horseback riding lessons, the plaintiff’s claims were dismissed.

Ellis v. YMCA Camp Mohawk, Inc., 615 Fed. Appx. 697; 2015 U.S. App. LEXIS 16057

State: Connecticut, United States Court of Appeals for the Second Circuit

Plaintiff: Louisa R. Ellis, ppa Elizabeth Ellis, Elizabeth Ellis

Defendant: YMCA Camp Mohawk, Inc.

Plaintiff Claims: Negligence

Defendant Defenses:

Holding: For the Defendant

Year: 2015

Summary

Your expert witness must have the experience, education or background to be able to testify as to their findings. In states where an expert opinion is needed, like Connecticut, not having an expert means not have a case.

Here the expert witness hired by the plaintiff did not have the necessary qualifications, and the court would not allow his testimony. Because horseback riding and equine issues were outside of the scope of the normal juror in Connecticut, an expert witness was needed by the plaintiff. Without an expert, the plaintiff’s case was dismissed.

Facts

On July 18, 2011, Louisa Ellis fell from a pony while taking horseback riding lessons at YMCA Camp Mohawk. Ellis sustained injuries to her hand and elbow that required surgery and therapy. Appellants identified Andres, an employee of Robson Forensic, to investigate the claims and to provide expert testimony.

The plaintiff’s hired an expert witness to provide expert testimony on why the defendant was negligent. The court found the plaintiff’s expert was not qualified to render an expert opinion on the matter.

… Corey Andres, was not qualified to render an expert opinion regarding the standard of care for an equestrian course at the YMCA camp at which twelve-year-old Louisa was injured.

The trial court dismissed the plaintiff’s case because they could not prove their case.

The district court excluded Andres’s expert testimony on the ground that he had limited experience in the field of horseback riding. Therefore, appellants’ failure to produce an expert where expert testimony was required led the district court to grant summary judgment.

The plaintiffs appealed.

Analysis: making sense of the law based on these facts.

Although the case was brought in the federal district court because the parties were from different states, the law of the state where the accident happened was the law used in the case. Since the accident occurred in Connecticut, Connecticut law was applied to the case.

Under Connecticut law, horseback riding was outside the general knowledge of jurors and thus required expert testimony for the jurors to make their decisions.

Connecticut courts have held, on similar facts, that the general public is no longer as familiar with horsemanship as it arguably was at the beginning of the twentieth century, and that expert testimony is necessary to establish a standard of care and a breach of that standard.

An expert witness is needed to show both the standard of care in the case and whether the defendant breached that standard of care.

The plaintiff hired Andres, an employee of Robson Forensic.

Andres claimed his expertise based on his membership in the American Camp Association (“ACA”) and his study of therapeutic education at Ohio State, University of Toledo, including a study pertaining to equestrian matters. Andres’s investigation concluded that YMCA was negligent in failing to provide complete and proper instruction as to how to fall from a horse in a way that minimizes injury.

The district court excluded “Andres’s expert testimony on the ground that he had limited experience in the field of horseback riding.”

The district stated, and the appellate court agreed that:

Andres does not rise to the level of expertise required to opine on the matters at hand. Andres has practically no knowledge or experience relating to horsemanship — his resume makes no reference to any such knowledge, and his investigation merely points to three publications that he relied on when preparing his report. Andres’s resume instead highlights a wide array of fields and organizations in which he has obtained certifications or is a member. Appellants argue that Andres’s membership in the ACA broadly reaches all camp recreations. This broad qualification falls well short of the specialized knowledge that Federal Rule of Evidence 702 demands. The district court therefore did not abuse its discretion in its decision to exclude Andres’s testimony.

Because the plaintiff’s expert witness was excluded and could not testify, the plaintiffs could not prove their case.

Appellants’ failure to provide necessary expert testimony precludes them from presenting these claims under Connecticut state law. Thus, there are no issues of material fact raised to challenge the district court’s entry of summary judgment.

So Now What?

The courts have been given broader discretion to determine who can and cannot testify as an expert witness. The courts can also determine, even if the expert is qualified to testify, that the testimony they are going to give is not based on science.

In states where expert testimony is required or any state where you want to win, you need to hire expert witnesses who are going to qualify as an expert in their field and provide an opinion based on science, history, experience and real life.

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@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, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


Twenty years ago, the New Hampshire Supreme Court shows how you can trample common sense to find a release invalid.

Release was signed for a trail ride and plaintiff claimed she told guide his horse was getting ready to act out before it kicked her.

Wright v. Loon Mountain Recreation Corporation, 140 N.H. 166; 663 A.2d 1340; 1995 N.H. LEXIS 119

State: New Hampshire, Supreme Court of New Hampshire

Plaintiff: Brenda Wright

Defendant: Loon Mountain Recreation Corporation d/b/a Loon Mountain Equestrian Center

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: for the Plaintiff

Year: 1995

Summary

Twenty-year-old New Hampshire Supreme Court decisions shows how convoluted a court can get when it decides a release will not be enforced. Court held the language in the release was confusing. However, to get that point the court had to not read the release I think.

Facts

The plaintiff signed up for a trail ride with the defendant. While on the ride she was kicked in the leg by another horse. She sued. On appeal she argued that her guide had failed to respond to indications that his horse, the one that kicked the plaintiff, was about to “act out.”

While on the tour, the plaintiff was kicked in the leg by her guide’s horse and sustained an injury. She brought a negligence action against the defendant, alleging that her tour guide had failed to respond to indications that his horse was about to “act out.”

[Every time I’ve been bit or kicked by a horse there was no warning. Sure, if a horse’s ears go back, there is a warning, but most times, horse 1, Moss 0. I wish there were indications that a horse was going to act out.]

Prior to suing she signed a release. The trial court dismissed her claim because of the release. She appealed.

New Hampshire has a two-tier court system. The trial court is called the Superior Court and appeals from the Superior Court are appealed to the New Hampshire Supreme Court. This appeal was decided by the New Hampshire Supreme Court.

Analysis: making sense of the law based on these facts.

The entire issue before the court was “whether an exculpatory contract signed by the plaintiff, Brenda Wright, released the defendant, Loon Mountain Recreation Corporation, from liability for its own negligence.”

The defendant argued the release “clearly and specifically indicated an intent to release Loon Mountain from liability for injury resulting from its own negligence while [the plaintiff] was engaged in the activity of horseback riding’“.

The Supreme Court looked at this decision in its analysis in a slightly different way.

This court will not enforce an exculpatory contract that contravenes public policy. “Once an exculpatory agreement is found unobjectionable as a matter of public policy, it will be upheld only if it appears that the plaintiff understood the import of the agreement or that a reasonable person in his position would have known of the exculpatory provision.”

“Since the terms of the contract are strictly construed against the defendant, the contract must clearly state that the defendant is not responsible for the consequences of his negligence.”

The court then read the release to determine if a reasonable person would have known about the exculpatory clause in the release. The court then worked hard to find a reasonable person would not.

A reasonable person would understand the provision if its language “clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence . . . .” We will assess the clarity of the con-tract by evaluating it as a whole, not by examining isolated words and phrases.

We conclude that the contract structure and organization obscured the exculpatory clauses. Strictly construing the contract language against the defendant, we find the contract did not clearly relieve the defendant of responsibility for the sort of negligence at issue in this case.

The language the court examined was in all caps so the language stood out from the surrounding language. However, the court stated that when the entire agreement was read, the all cap language was unclear. (?) The court’s determination that the clause was not clear was based on the word therefore.

In this case, the term “therefore” is significant. A common definition of “therefore” is “for that rea-son: because of that: on that ground . . . .” Webster’s Third New International Dictionary 2372 (unabridged ed. 1961) (Webster’s). A clause that is introduced by the term “therefore” cannot be understood without reading the antecedent language.

The court found additional language that it held confused the meaning of the release. The court concluded its analysis with this statement.

The exculpatory contract lacks a straightforward statement of the defendant’s intent to avoid liability for its failure to use reasonable care in any way. The agreement easily could have been framed in a manner that would have expressed more clearly its conditions and exclusions.

There was a dissent by two justices. Both who found the majority’s analysis was just a little ridiculous.

So Now What?

Sometimes your release is not going to win. In those cases, you are going to rely on your insurance company. In this case, the court worked hard to find little ways it could justify its desire to not support the release.

Possibly, this release might have had a better chance with a simple clear statement that by signing the release the signor could not sue for negligence. This release reads like it was written by an attorney training to kill trees rather than write documents for consumers.

But!

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn





If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@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, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


Wright v. Loon Mountain Recreation Corporation, 140 N.H. 166; 663 A.2d 1340; 1995 N.H. LEXIS 119

Wright v. Loon Mountain Recreation Corporation, 140 N.H. 166; 663 A.2d 1340; 1995 N.H. LEXIS 119

Brenda Wright v. Loon Mountain Recreation Corporation d/b/a Loon Mountain Equestrian Center

No. 94-266

SUPREME COURT OF NEW HAMPSHIRE

140 N.H. 166; 663 A.2d 1340; 1995 N.H. LEXIS 119

August 22, 1995, Decided

SUBSEQUENT HISTORY: [***1] Released for Publication September 7, 1995.

PRIOR HISTORY: Merrimack County.

DISPOSITION: Reversed and remanded.

CASE SUMMARY:

PROCEDURAL POSTURE: Plaintiff injured brought a negligence action against defendant tour company after being hurt while on a horseback riding tour. The injured appealed the decision of the Superior Court of Merrimack County (New Hampshire), which granted the tour company’s motion for summary judgment.

OVERVIEW: Before going horseback riding on the tour, the injured signed an exculpatory agreement that released the tour company from liability as a result of various occurrences. The tour company successfully argued in the trial court that the exculpatory agreement barred the injured’s suit. The court found that the issue of whether the injured understood the agreement presented an issue of fact. In assessing the clarity of the contract by evaluating it as a whole, the court found that the contract structure and organization obscured the exculpatory clauses and did not clearly relieve the tour company of responsibility for the sort of negligence at issue in the case. The court reasoned that one clause was understandable to relate to the inherent dangers of horseback riding and liability for injures that occurred for that reason. However, the court found that receiving an injury that would not have occurred but for a tour guide’s negligence was not an inherent danger. Because the contract did not put the injured on clear notice, the tour company was not entitled to summary judgment.

OUTCOME: The judgment was reversed, and the case was remanded.

CORE TERMS: horse, exculpatory, horseback riding, reasonable person, exculpatory provision, personal injury, own negligence, summary judgment, public policy, animal, exculpatory clauses, issue of fact, opportunity to prove, contravenes, inclusive, obscured, verb, tour guide, qualifying, notice, ridden, matter of law, entitled to judgment, contract language, misunderstanding, unabridged, exhaustive, quotations, prefaced, genuine

LexisNexis(R) Headnotes

Civil Procedure > Summary Judgment > Burdens of Production & Proof > Movants

Civil Procedure > Summary Judgment > Opposition > General Overview

Civil Procedure > Summary Judgment > Standards > Genuine Disputes

[HN1] The trial court must grant summary judgment when it finds no genuine issue of material fact, after considering the affidavits and other evidence presented in a light most favorable to the non-moving party, and when the moving party is entitled to judgment as a matter of law. The party opposing summary judgment must put forth contradictory evidence under oath, sufficient to indicate that a genuine issue of fact exists so that the party should have an opportunity to prove the fact at trial. All reasonable doubts should be resolved against the movant.

Contracts Law > Contract Conditions & Provisions > Exculpatory Clauses

Torts > Negligence > Defenses > Exculpatory Clauses > Interpretation

Torts > Procedure > Settlements > Releases > Construction & Interpretation

[HN2] The court will not enforce an exculpatory contract that contravenes public policy. Once an exculpatory agreement is found unobjectionable as a matter of public policy, it will be upheld only if it appears that the plaintiff understood the import of the agreement or that a reasonable person in his position would have known of the exculpatory provision. Since the terms of the contract are strictly construed against the defendant, the contract must clearly state that the defendant is not responsible for the consequences of his negligence.

Contracts Law > Contract Conditions & Provisions > Indemnity

[HN3] The plaintiff’s understanding presents an issue of fact, and the plaintiff should have an opportunity to prove the fact at trial unless the exculpatory language was clear and a misunderstanding was unreasonable.

Contracts Law > Contract Conditions & Provisions > Exculpatory Clauses

Contracts Law > Types of Contracts > Releases

Torts > Procedure > Settlements > Releases > General Overview

[HN4] The court examines the language of the release to determine whether a reasonable person in the plaintiff’s position would have known of the exculpatory provision. A reasonable person would understand the provision if its language clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence. The court assesses the clarity of the contract by evaluating it as a whole, not by examining isolated words and phrases.

HEADNOTES

1. Contracts–Liability for Negligence–Public Policy

New Hampshire Supreme Court will not enforce an exculpatory contract that contravenes public policy.

2. Contracts–Construction–Ambiguity

The plaintiff’s understanding of the release presents an issue of fact, and the plaintiff should have an opportunity to prove the fact at trial unless the exculpatory language was clear and a misunderstanding was unreasonable.

3. Contracts–Liability for Negligence–Exculpatory Provision

A reasonable person would “understand” an exculpatory provision if its language clearly and specifically indicated the intent to release the defendant from liability for personal injury caused by the defendant’s negligence.

4. Contracts–Liability for Negligence–Exculpatory Provision

Release language should be plain; a careful reading should not be necessary to divine the defendant’s intent.

5. Contracts–Liability for Negligence–Exculpatory Provision

The release language fails where it is obscured by qualifying terms and phrases and doesn’t put the plaintiff on clear notice.

COUNSEL: Craig, Wenners, Craig & Casinghino, P.A., of Manchester (Gary L. Casinghino and Gemma M. Dreher on the brief, and Mr. Casinghino orally), for the plaintiff.

Devine, Millimet & Branch, P.A., of Manchester (Gregory D. H. Jones and Joseph M. McDonough, III, on the brief, and Mr. Jones orally), for the defendant.

JUDGES: JOHNSON, J.; THAYER, J., with whom BROCK, C.J., joined, dissented; the others concurred.

OPINION BY: JOHNSON

OPINION

[*167] [**1341] JOHNSON, J. The question presented is whether an exculpatory contract signed by the plaintiff, Brenda Wright, released the defendant, Loon Mountain Recreation Corporation, from liability for its own negligence. The Superior Court (Manias, J.) found that the signed release barred the plaintiff’s negligence claim and granted the defendant’s motion for summary judgment. We reverse.

Before embarking on a horseback riding tour at the Loon Mountain Equestrian Center, owned and operated by the defendant, the plaintiff was asked to read, complete, and sign the following exculpatory [***2] agreement:

I accept for use, as is, the animals listed on this form and accept full responsibility for its care while it is in my possession. I have made no misrepresentation to Loon Mountain regarding my name, address or age. I agree to hold harmless and indemnify Loon Mountain Recreation Corporation and its owners, agents and employees for any loss or damage, including any that result from claims for personal injury or property damage related to the use of this animal.

I understand and am aware that horseback riding is a HAZARDOUS ACTIVITY. I understand that the above activity and the use of horses involves a risk of injury to any and all parts of my body. I hereby agree to freely and expressly assume and accept any and all risks of injury or death from the use of this animal while participating in this activity.

I understand that it is not possible to predict every situation and condition of the terrain a horse will be ridden on; therefore, it is impossible to guarantee the horse I am riding will react safely in all riding situations. [*168]

I realize that it is mandatory that I wear a helmet at all times while horseback riding, and that I will obey all trail signs [***3] and remain only on open trails.

I therefore release Loon Mountain Recreation Corporation, its owners, agents and employees FROM ANY AND ALL LIABILITY FOR DAMAGES AND PERSONAL INJURY TO MYSELF OR ANY PERSON OR PROPERTY RESULTING FROM THE NEGLIGENCE OF LOON MOUNTAIN RECREATION CORPORATION TO INCLUDE NEGLIGENCE IN SELECTION, ADJUSTMENT OR ANY MAINTENANCE OF ANY HORSE, accepting myself the full responsibility for any and all damages or injury of any kind which may result. (PLEASE SIGN: Brenda Wright/s)

I agree that there have been no warranties, expressed or implied, which have been made to me which extend beyond the description of the equipment listed on this form. I the undersigned, acknowledge that I have carefully read this agreement and release of liability, and I understand its contents. I understand that my signature below expressly waives any rights I have to sue Loon Mountain Recreation Corporation for injuries and damages.

The plaintiff signed this agreement after the fifth paragraph and at the bottom.

While on the tour, the plaintiff was kicked in the leg by her guide’s horse and sustained an injury. She brought a negligence action against the defendant, alleging [***4] that her tour guide had failed to respond to indications that his horse was about to “act out.” The defendant argued that the exculpatory contract barred the plaintiff’s suit and moved for summary judgment. The Superior Court (Manias, J.) granted its motion, and this appeal followed.

[**1342] On appeal, the defendant argues that we should uphold the trial court’s grant of summary judgment because the contract “clearly and specifically indicated an intent to release Loon Mountain from liability for injury resulting from its own negligence while [the plaintiff] was engaged in the activity of horseback riding.”

[HN1] The trial court must grant summary judgment when it finds no genuine issue of material fact, after considering the affidavits and other evidence presented in a light most favorable to the non-moving party, and when the moving party is entitled to judgment as a matter of law. The party opposing summary judgment must put forth contradictory [*169] evidence under oath, sufficient to indicate that a genuine issue of fact exists so that the party should have an opportunity to prove the fact at trial. All reasonable doubts should be resolved against the movant.


Phillips v. Verax [***5] Corp., 138 N.H. 240, 243, 637 A.2d 906, 909 (1994) (brackets, ellipses, and quotations omitted).

[HN2] This court will not enforce an exculpatory contract that contravenes public policy. Audley v. Melton, 138 N.H.. 416, 418, 640 A.2d 777, 779 (1994). “Once an exculpatory agreement is found unobjectionable as a matter of public policy, it will be upheld only if it appears that the plaintiff understood the import of the agreement or that a reasonable person in his position would have known of the exculpatory provision.” Barnes v. N.H. Karting Assoc., 128 N.H. 102, 107, 509 A.2d 151, 154 (1986). “Since the terms of the contract are strictly construed against the defendant, the contract must clearly state that the defendant is not responsible for the consequences of his negligence.” Id.

The plaintiff does not argue that the exculpatory contract contravenes public policy. Accordingly, we determine only whether “the plaintiff understood the import of the agreement,” and if not, whether “a reasonable person in [her] position would have known of the exculpatory provision.” Id.

The parties dispute whether the plaintiff understood the agreement to release the defendant from [***6] liability for its own negligence. [HN3] The plaintiff’s understanding presents an issue of fact, and the plaintiff should have an opportunity to prove the fact at trial unless the exculpatory language was clear and a misunderstanding was unreasonable. See Phillips, 138 N.H. at 243, 637 A.2d at 909; Barnes, 128 N.H. at 107, 509 A.2d at 154.

[HN4] We therefore examine the language of the release to determine whether “a reasonable person in [the plaintiff’s] position would have known of the exculpatory provision.” Barnes, 128 N.H. at 107, 509 A.2d at 154; cf. Raudonis v. Ins. Co. of North America, 137 N.H. 57, 59, 623 A.2d 746, 747 (1993) (interpretation of insurance contract language a question of law; we construe terms as would reasonable person in insured’s position). A reasonable person would understand the provision if its language “clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence . . . .” Barnes, 128 N.H. at 107, 509 A.2d at 154. We will assess the clarity of the contract by evaluating it as a whole, not by examining isolated [*170] words and phrases. See Chadwick v. CSI, Ltd., [***7] 137 N.H. 515, 524, 629 A.2d 820, 826 (1993).

We conclude that the contract structure and organization obscured the exculpatory clauses. Strictly construing the contract language against the defendant, we find the contract did not clearly relieve the defendant of responsibility for the sort of negligence at issue in this case. See Barnes, 128 N.H. at 107, 509 A.2d at 154.

The defendant emphasizes the language of the agreement’s fifth paragraph, which states: “I therefore release [the defendant] from ANY AND ALL LIABILITY FOR . . . PERSONAL INJURY TO MYSELF . . . RESULTING FROM THE NEGLIGENCE OF [THE DEFENDANT] TO INCLUDE NEGLIGENCE IN SELECTION, ADJUSTMENT OR ANY MAINTENANCE OF ANY HORSE, accepting myself the full responsibility for any . . . injury of any kind which may result.” (Emphasis added.) We find that when this clause is read within the [**1343] context of the entire agreement, its meaning is less than clear.

In this case, the term “therefore” is significant. A common definition of “therefore” is “for that reason: because of that: on that ground . . . .” Webster’s Third New International Dictionary 2372 (unabridged ed. 1961) (Webster’s). A clause that is introduced [***8] by the term “therefore” cannot be understood without reading the antecedent language.

The paragraphs preceding the exculpatory clause emphasize the inherent hazards of horseback riding. Because the exculpatory clause is prefaced by the term “therefore,” a reasonable person might understand its language to relate to the inherent dangers of horseback riding and liability for injuries that occur “for that reason.” Being kicked by a horse is a danger inherent to horseback riding; receiving an injury that would not have occurred but for a tour guide’s negligence, however, is not.

The exculpatory phrase in the fifth paragraph is further clouded by the qualifying language that follows. Pursuant to the contract, the defendant is released from liability for its negligence “to include negligence in selection, adjustment or any maintenance of any horse.” If we parse these terms, they do not necessarily restrict the defendant’s release to liability for negligent selection, adjustment, or maintenance of any horse. The superfluity of the terms, however, serves to obscure rather than clarify. Moreover, one sense of the word “inclusive” is “covering or intended to cover all items . . . .” Webster’s, [***9] supra at 1143. A reasonable person reading the clause thus might conclude that the agreement relieved the defendant of responsibility for the enumerated types of negligence only.

[*171] Whether the tour guide’s failure to control his horse constitutes “the negligent . . . maintenance of any horse,” is unclear. Webster’s gives several definitions for the word “maintain,” the two most relevant being: (1) “to keep in a state of repair, efficiency, or validity: preserve from failure or decline” and (2) “to provide for: bear the expense of: SUPPORT.” Webster’s, supra at 1362. When read in the context of selection and adjustment, therefore, a reasonable person in the position of the plaintiff might understand “the negligent . . . maintenance of any horse” to relate to negligent upkeep rather than control.

The contract is also unclear with respect to injuries involving horses not ridden by the plaintiff. The first, second, and third paragraphs emphasize only the horse that the plaintiff “accept[s] for use.” We reject the defendant’s argument that the phrase “use of this animal,” used in the first and second paragraphs, “is merely an alternative expression for the activity of ‘horseback [***10] riding.'” We also reject the defendant’s contention that the phrase “use of this animal” does not limit the contract’s application to injuries involving the plaintiff’s horse because “[a] careful reading . . . reveals that it is part of a clause modifying plaintiff’s agreement to ‘hold harmless and indemnify [the defendant] for any loss or damage. . . .'” The Barnes test requires that release language be plain; a careful reading should not be necessary to divine the defendant’s intent.

In Audley, we concluded:

Quite simply, the general release language does not satisfy the Barnes requirement that the contract must clearly state that the defendant is not responsible for the consequences of his negligence. The release fails in this respect not because it neglects to use the word ‘negligence’ or any other special terms; instead it fails because no particular attention is called to the notion of releasing the defendant from liability for his own negligence. The general language in the context of the release simply did not put the plaintiff on clear notice of such intent.


Audley, 138 N.H. at 419, 640 A.2d at 779 (quotations and citations omitted). [***11] Whereas the release language in Audley failed because it was too general, the release language in the present case fails because it is obscured by qualifying terms and phrases. The cases are similar, however, because neither contract put the plaintiff “on clear notice,” id.

The exculpatory contract lacks a straightforward statement of the defendant’s intent [**1344] to avoid liability for its failure to use reasonable [*172] care in any way. The agreement easily could have been framed in a manner that would have expressed more clearly its conditions and exclusions. The defendant was not entitled to judgment as a matter of law.

Reversed and remanded.

THAYER, J., with whom BROCK, C.J., joined, dissented; the others concurred.

DISSENT BY: THAYER

DISSENT

THAYER, J., dissenting: I would uphold the trial court’s grant of summary judgment because the exculpatory contract explicitly indicated an intent to release the defendant from liability for its own negligence. The contract in question purports to release the defendant from “ANY AND ALL LIABILITY FOR . . . PERSONAL INJURY TO MYSELF . . . RESULTING FROM THE NEGLIGENCE OF [THE DEFENDANT] TO INCLUDE NEGLIGENCE IN SELECTION, ADJUSTMENT OR ANY MAINTENANCE [***12] OF ANY HORSE.” The language clearly indicates an intent to release the defendant from liability for its own negligence. I agree with the majority that the use of the word “therefore” restricts the release to negligence associated with the inherent hazards of horseback riding. I do not agree, however, that the negligence alleged is not such a risk. The plaintiff alleged that the defendant’s employee had failed to properly control his horse, and that as a result, the horse “acted out.” Controlling a horse is an essential part of horseback riding. The possibility that someone will fail to exercise the proper control would seem to fall squarely within the category of dangers inherent in the sport.

The majority bases its holding in part on its interpretation of the phrase “to include.” In holding that the list prefaced by the words “to include” is meant to be exhaustive, the majority relies on a definition of the word “inclusive.” Such reliance is misplaced. The contract used the word “include” as a verb. The primary relevant definition of that word is “to place, list, or rate as a part or component of a whole or a larger group, class, or aggregate.” Webster’s Third New International [***13] Dictionary 1143 (unabridged ed. 1961) (Webster’s). “Inclusive,” however, is an adjective and its definition differs from the verb form of the word. See In re Dumaine, 135 N.H. 103, 107, 600 A.2d 127, 129 (1991). The use of the verb form of the word indicates that the listed types of negligence are “component[s] of a whole or a larger group,” Webster’s, supra, and that the list was not exhaustive.

The appropriate question, therefore, is whether the negligence alleged in this case is of the same type as those listed. The plaintiff [*173] alleges that the defendant’s employee failed to properly control his mount. This would seem to fall squarely within the type of negligence defined by the contract. That the horse causing the injury was not ridden by the plaintiff is irrelevant. The contract releases the defendant for negligence resulting from “the use of horses” and specifically from “NEGLIGENCE IN SELECTION, ADJUSTMENT OR ANY MAINTENANCE OF ANY HORSE.” (Emphasis added.) While the contract does refer to the plaintiff’s horse on a number of occasions, it also refers to horses generally and to “any” horse. This language cannot be read to restrict the defendant’s release [***14] solely to injuries caused by the plaintiff’s horse. I disagree with the majority’s reading of the exculpatory contract. Therefore, I respectfully dissent.

BROCK, C.J., joins in the dissent.


Ellis v. YMCA Camp Mohawk, Inc., 615 Fed. Appx. 697; 2015 U.S. App. LEXIS 16057

Ellis v. YMCA Camp Mohawk, Inc., 615 Fed. Appx. 697; 2015 U.S. App. LEXIS 16057

Louisa R. Ellis, ppa Elizabeth Ellis, Elizabeth Ellis, Plaintiff-Appellant, -v.- YMCA Camp Mohawk, Inc., Defendant-Appellee.

14-3460

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

615 Fed. Appx. 697; 2015 U.S. App. LEXIS 16057

September 10, 2015, Decided

NOTICE: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

PRIOR HISTORY: [**1] Appeal from a judgment of the United States District Court for the District of Connecticut (Thompson, J.).

Ellis v. Y.M.C.A. Camp Mohawk, Inc., 2014 U.S. Dist. LEXIS 110403 (D. Conn., Aug. 11, 2014)

CASE SUMMARY:

OVERVIEW: HOLDINGS: [1]-A claim that a summer camp operator was negligent in offering horseback riding instruction required the support of expert testimony, as the intricacies of horseback riding technique and horsemanship were no longer within the bounds of ordinary knowledge or experience of judges and jurors; [2]-The proffered expert witness was not qualified under Fed. R. Evid. 702, as he claimed a generalized familiarity with camp education but had practically no knowledge or experience relating to horsemanship.

OUTCOME: Judgment affirmed.

CORE TERMS: expert testimony, summary judgment, state law, standard of care, specialized knowledge, horsemanship, expertise, juror, horseback riding, expert witness, issues of material fact, qualification, familiarity, membership, diversity, resume, equestrian, pony

COUNSEL: FOR APPELLANT: Megan L. Piltz, Sabatini and Associates, LLC, Newington, Connecticut.

FOR APPELLEES: Renee W. Dwyer and Katherine L. Matthews, Gordon, Muir and Foley, LLP, Hartford, Connecticut.

JUDGES: PRESENT: RALPH K. WINTER, JOHN M. WALKER, JR., DENNIS JACOBS, Circuit Judges.

OPINION

[*697] SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED.

Louisa Ellis and Elizabeth Ellis (“Appellants”) appeal from the judgment of the United States District Court for the District of Connecticut (Thompson, J.), dismissing [*698] on summary judgment their diversity action alleging negligence against YCMA Camp Mohawk, Inc. (“YMCA”). Appellants argue that the district court abused its discretion in determining that their expert, Corey Andres, was not qualified to render an expert opinion regarding the standard of care for an equestrian course at the YMCA camp at which twelve-year-old Louisa was injured. Appellants also argue that the district court erred in determining that all of the issues presented require expert testimony. We assume the parties’ [**2] familiarity with the underlying facts, the procedural history, and the issues presented for review.

On July 18, 2011, Louisa Ellis fell from a pony while taking horseback riding lessons at YMCA Camp Mohawk. Ellis sustained injuries to her hand and elbow that required surgery and therapy. Appellants identified Andres, an employee of Robson Forensic, to investigate the claims and to provide expert testimony. Andres claimed his expertise based on his membership in the American Camp Association (“ACA”) and his study of therapeutic education at Ohio State, University of Toledo, including a study pertaining to equestrian matters. Andres’s investigation concluded that YMCA was negligent in failing to provide complete and proper instruction as to how to fall from a horse in a way that minimizes injury.

The district court excluded Andres’s expert testimony on the ground that he had limited experience in the field of horseback riding. Therefore, appellants’ failure to produce an expert where expert testimony was required led the district court to grant summary judgment.

[HN1] A grant of summary judgment is reviewed de novo to determine whether any genuine issues of material fact would bar summary judgment. [**3] Zurich Am. Ins. Co. v. ABM Indus., Inc., 397 F.3d 158, 164 (2d Cir. 2005). [HN2] We review the district court’s evidentiary ruling under an abuse-of-discretion standard. See id. at 171-72. “Either an error of law or a clear error of fact may constitute an abuse of discretion.” Schering Corp. v. Pfizer, Inc., 189 F.3d 218, 224 (2d Cir. 1999) (internal quotation marks and citations omitted). [HN3] A district court’s qualification of an expert witness will only be overturned if it is manifestly erroneous. United States v. Barrow, 400 F.3d 109, 123 (2d Cir. 2005).

[HN4] In a diversity action, whether expert testimony is required is a matter of state law, whereas the admissibility of a given expert witness is governed by the Federal Rules of Evidence. See 29 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 6263; see also Beaudette v. Louisville Ladder Inc., 462 F.3d 22, 27 (1st Cir. 2006). [HN5] Under Connecticut state law, expert testimony is required when a matter goes “beyond the ordinary knowledge and experience of judges or jurors.” LePage v. Horne, 262 Conn. 116, 809 A.2d 505, 511 (Conn. 2002). Connecticut courts have held, on similar facts, that the general public is no longer as familiar with horsemanship as it arguably was at the beginning of the twentieth century, and that expert testimony is necessary to establish a standard of care and a breach of that standard. Keeney v. Mystic Valley Hunt Club, Inc., 93 Conn. App. 368, 889 A.2d 829, 833-34 (Conn. App. Ct. 2006).

As the district court held, Appellants’ claims required the support of expert testimony. The intricacies of horseback riding technique and horsemanship [**4] are no longer within the bounds of ordinary knowledge or experience of judges and jurors. Questions [*699] such as whether the stirrups were improperly installed and whether the pony was of sufficient size to carry the rider are not questions that the average juror can decide based on past knowledge or experience. We therefore agree that Ellis needed expert testimony to show both a standard of care and a breach of that standard.

Andres claimed a generalized familiarity with camp education. However, [HN6] Federal Rule of Evidence 702 requires expertise based on specialized knowledge and experience, not a mere understanding derived from others’ publications. “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702(a); see also Marvel Characters, Inc. v. Kirby, 726 F.3d 119, 135 (2d Cir. 2013). Andres does not rise to the level of expertise required to opine on the matters at hand. Andres has practically no knowledge or experience relating to horsemanship — his resume makes no reference to any such knowledge, and his investigation merely points to three publications [**5] that he relied on when preparing his report. Andres’s resume instead highlights a wide array of fields and organizations in which he has obtained certifications or is a member. Appellants argue that Andres’s membership in the ACA broadly reaches all camp recreations. This broad qualification falls well short of the specialized knowledge that Federal Rule of Evidence 702 demands. The district court therefore did not abuse its discretion in its decision to exclude Andres’s testimony.

Appellants’ failure to provide necessary expert testimony precludes them from presenting these claims under Connecticut state law. See LePage, 809 A.2d at 511. Thus, there are no issues of material fact raised to challenge the district court’s entry of summary judgment.

For the foregoing reasons, and finding no merit in Appellant’s other arguments, we hereby AFFIRM the judgment of the district court.


Melendez v. Happy Trails and Riding Center, Inc., 2016 U.S. Dist. LEXIS 131576

Melendez v. Happy Trails and Riding Center, Inc., 2016 U.S. Dist. LEXIS 131576

Wilberto Melendez, Plaintiff, v. Happy Trails and Riding Center, Inc., Defendant.

3:14-CV-1894

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

2016 U.S. Dist. LEXIS 131576

September 26, 2016, Decided

September 26, 2016, Filed

CORE TERMS: trail, summary judgment, exculpatory, recklessness, equine, stirrup, stable, immunity, genuine, horse, horseback riding, recreational, animal, material fact, skiing, ride, assumption of risk, faulty, broken, ski, rider, inherent risk, exculpatory clause, riding, sport, skier, enumerate, counter, rental, entity

COUNSEL:  [*1] For Wilberto Melendez, Plaintiff, Counterclaim Defendant: Robin A. Feeney, LEAD ATTORNEY, FINE & STAUD LLP, PHILADELPHIA, PA.

For Happy Trails and Riding Center, Incorporated, Defendant, Counterclaim Plaintiff: Dennis M. Marconi, Barnaba & Marconi, LLP, Trenton, NJ.

JUDGES: Robert D. Mariani, United States District Judge.

OPINION BY: Robert D. Mariani

OPINION

MEMORANDUM OPINION

I. Introduction and Procedural History

On September 30, 2014, Plaintiff, Wilberto Melendez, filled a one count Complaint with this Court against Defendant, Happy Trails and Riding Center, lnc.1 (Doc. 1). The Complaint alleges that Plaintiff suffered injury as a result of Defendant’s negligence in its operation of a business which rented horses and equipment to the public for recreational horseback riding. After the conclusion of fact discovery, Defendant filed a Motion for Summary Judgment (Doc. 19) and supporting brief (Doc. 20) on October 29, 2015. Plaintiff filed a Brief in Opposition (Doc. 22) and Defendant filed a Reply. (Doc. 23). Oral argument on the matter was held on April 4, 2016.

1 Defendant points out that the business is owned and operated by Randolph Bennett, d/b/a Happy Trails Stables, and was incorrectly pleaded as Happy Trails Riding [*2]  Center, Inc. For the purposes of this motion, the error, if any, is immaterial and the opinion will refer to Defendant as “Defendant” or “Happy Trails.”

The motion is now ripe for decision. For the reasons set forth below the Court will deny Defendant’s motion in its entirety.

II. Statement of Undisputed Facts

In accordance with Local Rule 56.1, Defendant submitted a Statement of Material Facts in Support of its Motion for Summary Judgment, (Doc. 20), as to which it contends that there is no genuine dispute for trial. Plaintiff submitted a response, a Counter Statement of Facts, (Doc. 22), with the result being that the following facts have been admitted, except as specifically noted:

Plaintiff, Wilberto Melendez, went to Defendant’s stable on May 31, 2014, for the purpose of going horseback riding. (Doc. 20, ¶¶ 1, 2). After his group arrived, Plaintiff went into the stable’s office to register. (Id. at ¶ 5). Plaintiff was presented with a form (the “agreement”), which stated, in pertinent part:

AGREEMENT FOR PARTICIPATION AND\OR VOLUNTEERS [sic] I RELEASE AND DISCHARGE, ACCEPTANCE OF RESPONSIBILITY AND ACKNOWLEDGE [sic] OF RISK:

IN CONDERATION [sic] FOR BEING PERMITTED TO UTILIZE THE FACILITIES AND EQUIPMENT [*3]  OF HAPPY TRAILS RIDING STABLES AND TO ENGAGE IN HORSEBACK RIDING, AND ALL RELATED ACTIVITIES.

….

1. I understand and acknowledge that the activity I am voluntarily engage [sic] in as a participant and/or [sic] bears certain know [sic] risk [sic] and unanticipated risks which could result in jury, [sic] death, illness, or disease, physical or mental, or damage to myself, to my property, or to spectators or other third parties. I understand and acknowledge those risk [sic] may result in personal claims against “HAPPY TRAILS STABLES” or claims against me by spectators or other third parties.

1. [sic] The nature of the activity itself, including the possible risks to you the rider.

A. The animal may be startled by unforeseen or unexpected noises from other animals, people, vehicles, activities and as a result you the rider may be hurt or injured should the animal react to said noises or activity, by running, bucking, rolling, or kicking, etc.

B. That you as the rider realizes [sic] that the animal is reacting to your physical instructions, conduct, and verbal instructions and commands, and therefore, the animal will respond in accordance with your reactions or commands. However, there are [*4]  times when the animal may be confused or distracted during course [sic] of your instructions and/or commands.

C. You the rider understands [sic] that an animal may kick or bite you the rider, or you the pedestrian, and that other animals which may be on tour, could kick or bite you the rider and/or pedestrian.

D. You the rider are aware that physical conditions of the trails may cause injury or risk to you, should these physical conditions such as low tree limbs, bushes, or other type of natural growth come in contact with animal [sic] or yourself.

2. I hereby release and discharge Happy Trails Stables, instructors, trail guides, stable managers, employees, owners of the horses and related equipment and land utilized for Happy Trails Stables activities, hereinafter referred to as the “Released Parties,” from any and all claims, demands, or cause of action that I, or any of my heirs, successors or assigns, [sic] may hereafter have for injuries and/or damages arising out of my participation in Happy Trails activities, including but not limited to, loses caused by negligence of the released parties.

3. I further agree that I, my heirs, successors, or assigns, [sic] will not sue or make claim [*5]  against the Released Parties for damage or other loses sustained as a result of my participation in Happy Trails activities.

….

4. I understand and acknowledge that Happy Trails activities have inherent dangers that no amount of cares, [sic] caution, instruction, or expertise can eliminate and I expressly and voluntarily assume all risk of personal injury or death sustained while participating in “Happy Trails Stables” activities weather [sic] or not caused by negligence of the Released Parties ….

….

6. I hereby expressly recognize that this Agreement and Release of Liability is a contract pursuant to which I have released any and all claims against the Released Parties resulting from my participation in Happy Trails activities including any claims caused by negligence of the Released Parties. I also assume the risk of the equine activities pursuant to the [sic] Pennsylvania law.

(Id. at ¶¶ 5, 11; Doc. 20-7) (emphasis original). An employee of Happy Trails informed Plaintiff that Plaintiff must sign the agreement in order to go horseback riding. (Doc. 20, 5). Plaintiff signed the agreement. (Id. at ¶ 8). In addition to the agreement, there were signs posted inside the office, outside [*6]  the office, and by the stable which read “You assume the risk of equine activities pursuant to Pennsylvania Law.” (See id. at ¶¶ 12-15; Doc. 20-8).

After completing the agreement, Plaintiff waited while a Happy Trails employee saddled up a horse. (Doc. 20, ¶ 17). Plaintiff then mounted the horse and participated in a guided group horseback ride for the next forty-five minutes without incident. (Id. at ¶¶ 19, 21). On several occasions during the ride, Plaintiff requested permission from the guide to gallop the horse. (Id. at ¶¶ 22, 23). Plaintiff was told it was too dangerous to do on the trail. (Id.). At the end of the ride, one of the guides brought Plaintiff away from the group so that Plaintiff could canter the horse. (Id. at ¶ 26). Plaintiff then put the horse into a gallop and, while rounding a turn, a stirrup broke and Plaintiff fell from the animal. (id. at ¶¶ 27-29).

Plaintiff maintains that the stirrup Defendant provided him was faulty or defective and that this was the cause of his fall. (Doc. 22 at 1). Plaintiff further maintains that this fall resulted in fractured ribs and pneumothorax. (Id. at 3).

III. Standard of Review

Through summary adjudication, the court may dispose of those [*7]  claims that do not present a “genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). “As to materiality, ….[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Once such a showing has been made, the non-moving party must offer specific facts contradicting those averred by the movant to establish a genuine issue of material fact. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990). Therefore, the non-moving party may not oppose summary judgment simply on the basis of the pleadings, or on conclusory statements that a factual issue exists. Anderson, 477 U.S. at 248. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record…or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A)-(B). In evaluating whether summary judgment should be granted, “[t]he court need consider only the cited materials, but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3). “Inferences [*8]  should be drawn in the light most favorable to the non-moving party, and where the non-moving party’s evidence contradicts the movant’s, then the non-movant’s must be taken as true.” Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied 507 U.S. 912, 113 S. Ct. 1262, 122 L. Ed. 2d 659 (1993).

However, “facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007). If a party has carried its burden under the summary judgment rule,

its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.

Id. (internal quotations, citations, and alterations omitted).

IV. Analysis [*9]

Plaintiffs complaint alleges that Defendant was negligent in providing broken or defective equipment–the stirrup–to Plaintiff, which directly resulted in his injury. (Doc. 1, ¶ 20). Defendant puts forth two arguments that it maintains are separate and independent grounds for summary judgment. First, Defendant argues that the agreement that Plaintiff signed prior to the horseback ride insulates Defendant from liability under these facts. (Doc. 20 at 9). Second, Defendant argues that, pursuant to 4 P.S. §§ 601-606 (hereinafter “Equine Activities Immunity Act,” “EAIA,” or “the Act”), Happy Trails is immune from liability as a provider of equine activities. (Id.).

A. Exculpatory Agreement

An exculpatory clause is valid if (1) the clause does “not contravene public policy”; (2) the contract is “between persons relating entirely to their own private affairs”; and (3) each party is “a free bargaining agent to the agreement so that the contract is not one of adhesion.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1189 (Pa. 2010) (quoting Topp Copy Prods., Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98, 99 (Pa. 1993)). However, a valid exculpatory clause will nevertheless be unenforceable “unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.” Id. (quoting Topp Copy Prods., 626 A.2d at 99). Contracts immunizing a [*10]  party against liability for negligence are not favored by law and therefore established standards must be “met before an exculpatory provision will be interpreted and construed to relieve a person of liability for his own or his servants’ acts of negligence.” Dilks v. Flohr Chevrolet, Inc., 411 Pa. 425, 192 A.2d 682, 687 (Pa. 1963). Thus, Pennsylvania courts have established several standards governing the enforceability of exculpatory clauses:

1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing immunity is upon the party invoking protection under the clause.

Tayar v. Camelback Ski Corp., 616 Pa. 385, 47 A.3d 1190, 1196 (Pa. 2012) (quoting Topp Copy Prods., 626 A.2d at 99). Further, exculpatory clauses may not immunize a party for intentional or reckless behavior. Id. at 1202-03.

Defendant contends that the agreement Plaintiff signed is valid, enforceable, and encompasses broken equipment. (Doc. 20 at 13-16). Therefore, Defendant argues, Plaintiffs negligence [*11]  claim is barred and Happy Trails is entitled to summary judgment. (Id. at 16).

Plaintiff does not appear to argue that the agreement is not valid on its face. Nor should he, considering that the agreement easily satisfies the validity requirements under Chepkevich. First, the agreement does not violate any public policy of Pennsylvania. In light of the Equine Activities Immunity Act–discussed in the next section–and similar statutes addressing other recreational activities, it is the policy of the state to encourage participation in those activities, despite their inherent danger, and assign the risk of loss to those who choose to participate in them. Cf. Chepkevich, 2 A.3d at 1191 (finding that, in light of a statute that preserves the assumption of risk defense in the context of downhill skiing, it is “the clear policy of this Commonwealth . . .to encourage the sport and to place the risks of skiing squarely on the skier.”). Further, Pennsylvania courts have held as valid similar exculpatory agreements in the context of a variety of other inherently dangerous recreational activities. See, e.g., id. (downhill skiing); Wang v. Whitetail Mountain Resort, 2007 PA Super 283, 933 A.2d 110, 113-14 (Pa. Super. Ct. 2007) (snow tubing); Valeo v. Pocono Int’l Raceway, Inc., 347 Pa. Super. 230, 500 A.2d 492, 492-93 (Pa. Super. Ct. 1985) (auto racing); Nissley v. Candytown Motorcycle Club, Inc., 2006 PA Super 349, 913 A.2d 887, 889-91(Pa. Super. Ct. 2006) (motorcycle riding).

Second, the agreement was between two private [*12]  parties, Happy Trails and Mr. Melendez, concerning the purely private matter of renting a horse for recreational purposes. Finally, this is not a contract of adhesion. See Chepkevich, 2 A.3d at 1190-91 (“The signer I is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.”). Thus, the agreement is facially valid.

Turning to enforceability, Plaintiff contends that Defendant has failed to meet its burden to show either that defective equipment is an inherent risk of horseback riding, or that the language of the agreement shows that Plaintiff expressly assumed the risk of defective equipment. (Doc. 22 at 11). Plaintiff points out that the agreement does not enumerate defective equipment as a risk. (Id.). Further, Plaintiff argues that a broken stirrup is not an inherent risk of horseback riding as demonstrated by the testimony of both Happy Trails’ owner and a Happy Trails’ employee who both stated they had never seen a stirrup break before. (Id. at 12-13). Thus, Plaintiff argues, because the risk was not foreseeable and was not expressly in the agreement, Plaintiff could [*13]  not appreciate the risk and could therefore not assume it. (Id. at 13).

Plaintiffs argument essentially states that the second element from Tayar –that “the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties”–is not met in this case because the agreement did not specifically enumerate the risk of defective equipment. Pennsylvania courts, however, have rejected this argument before. See Chepkevich, 2 A.3d at 1193-94.

In Chepkevich, a skier, Lori Chepkevich, sued a ski resort after she fell from a ski lift and was injured. Id. at 1175-76. She claimed her injury occurred because an employee promised to stop the ski lift briefly to allow Chepkevich to help a child board the lift and then the employee failed to do so. Id. Prior to the accident, Chepkevich had signed a document titled “RELEASE FROM LIABILITY” which stated, in pertinent part,

Skiing, Snowboarding, and Snowblading, including the use of lifts, is a dangerous sport with inherent and other risks which include but are not limited to [certain enumerated risks]…. I agree to accept all these risks and agree not to sue Hidden Valley [*14]  Resort or their employees if injured while using their facilities regardless of any negligence on their part.

Id. at 1176. The Pennsylvania Supreme Court first rejected Chepkevich’s argument that she did not assume the specific risk that caused her injury and instead found that a fall from a ski lift was an inherent risk in the sport of skiing. Id. at 1188. Therefore, the Court found that the suit was barred by the Skier’s Responsibility Act, 42 PA. Cons. Stat. Ann. § 7102(c), which preserves the common law assumption of the risk defense in the context of downhill skiing. Chepkevich, 2 A.3d at 1187-88.

Turning to an alternative ground for summary judgment–the release–the Chepkevich Court held that the term “negligence” did not require any definition or illustration to be given effect. Id. at 1193. Indeed, reversing the court below on that point, the Court found “no reason to require the drafters of exculpatory releases to provide definitions and context for commonly used terms such as ‘negligence.”‘ Id. The Court then found that the plain language of the release encompassed Chepkevich’s claim for negligence and therefore barred the claim. Id. at 1194-95. Because the Court had already found that the risk involved was inherent, the Court found it unnecessary to address the merits of Chepkevich’s [*15]  final argument “that the Release exempted Hidden Valley from liability only when its negligence gave rise to a risk otherwise inherent to the sport of skiing.” Id. at 1193-94.

Concerning the case at hand, while this Court agrees with Plaintiff that the provision of defective equipment is not an inherent risk in the sport of horseback riding, this point is not dispositive. As one Pennsylvania court explained, “the assumption of the risk doctrine bars a plaintiff from recovering in tort for risks inherent to a certain activity. In contrast, the explicit, broad, and valid language of the exculpatory clause bars all claims, regardless of whether they arise from an inherent risk.” Nissley, 913 A.2d at 892 (footnote and internal citations omitted). Thus, as long as the language of the exculpatory agreement applies, any inherent risk analysis is superfluous. The fact that the court in Chepkevich found it unnecessary to its holding to address the plaintiffs argument that non-inherent risks cannot be released in exculpatory agreements does not affect this analysis. As that court saw no need to overturn the language in Nissley, this Court sees no reason not to follow it.

As for enforceability of the agreement, in the realm of recreational [*16]  activities, Pennsylvania has upheld expansive language in exculpatory agreements. See, e.g., Nissley, 913 A.2d at 890-91 (upholding motor cycle club’s exculpatory agreement in a negligence action when the release stated that plaintiff “hereby give[s] up all my rights to sue or make claim”); Zimmer v. Mitchell & Ness, 385 A.2d 437, 440 (Pa. Super. Ct. 1978), aff’d per curiam, 416 A.2d 1010 (1980) (upholding ski rental shop’s exculpatory agreement in a negligence action when the release stated that skier released defendant from “any liability”); Valeo, 500 A.2d at 492-93 (upholding race track’s exculpatory agreement in a negligence action where race car driver signed an agreement releasing “defendants ‘from all liability …for all loss or damage'”).

Here, Plaintiff signed an agreement that he knew to be a waiver. (Doc. 20-2 at 51-53; Doc. 20-7). Paragraph two of the agreement stated that Plaintiff released Happy Trails “from any and all claims, demands, or cause of action that I…may hereafter have for injuries and/or damages arising out of my participation in Happy Trails activities, including but not limited to, loses caused by negligence.” Further, paragraph six states that Plaintiff “hereby expressly recognize[s] that this Agreement and Release of Liability is a contract pursuant to which I have released any and all claims against the [*17]  Released Parties resulting from my participation in Happy Trails activities including any claims caused by negligence.” Plaintiff has alleged that Defendant was negligent in providing him defective equipment during his trail ride. The plain language of the agreement signed by Plaintiff releases Defendant from “all claims” including those “caused by negligence.” Thus, Plaintiffs claim, in as much as it is alleging that Defendant acted negligently, is encompassed by the exculpatory language of the agreement and therefore barred.2

2 This Court notes that there is some language in Chepkevich that seems to support Plaintiffs argument. As an aside, the Chepkevich Court states that “the risk [in this case] was not so unexpected, or brought about in so strange a manner, as to justify placing this injury beyond the reach of the plain language of the Release.” Chepkevich, 2 A.3d at 1194. Plaintiff has pointed out that a broken stirrup is a very uncommon, and therefore unexpected, occurrence. (Doc. 22 at 12-13). Nevertheless, because Chepkevich does not give any standards for what type of risks fall beyond the realm of the plain language of an exculpatory agreement, this Court must turn to other cases. This Court finds  [*18]  Zimmer v. Mitchell and Ness  instructive.

In Zimmer, a skier, Joseph Zimmer, sued a ski rental company after the bindings on the skis he rented failed to release as they were supposed to during a fall, causing him substantial injury. Zimmer, 385 A.2d at 438. Zimmer argued that the rental company was negligent in renting him skis without testing and fitting the bindings. Id. at 440. The court granted the ski rental company’s motion for summary judgment based on an exculpatory agreement that Zimmer signed when he rented the skis that released the rental company “from any liability for damage and injury to myself or to any person or property resulting from the use of this equipment.” Id.

Thus, while the specific issue of a broken stirrup may be very uncommon, Pennsylvania courts have enforced exculpatory agreements in the case of a released party negligently providing the releasing party with defective or broken equipment.

Plaintiff advances a more narrow reading of the agreement and argues that because the agreement does not enumerate defective equipment as a risk, he did not expressly assume it. The Chepkevich Court, however, was clear that no illustrations or examples are required to give common terms effect in an exculpatory [*19]  agreement. See Chepkevich, 2 A.3d at 1193. “All claims” and “negligence” are commonly used terms and Pennsylvania law does not require drafters of exculpatory clauses to enumerate every possible contingency that is included in broader language they choose to use. Plaintiff agreed to release Defendant from “all claims” including those that arose from Defendant’s negligence. Plaintiff cannot now protest that he did not know what “all claims” included.3

3 At oral argument, Plaintiff advanced a slightly different argument. Plaintiff argued, in effect, that because paragraph one of the agreement enumerates risks associated with horseback riding, the rest of the agreement is limited to those enumerated lists. This argument was also advanced in Chepkevich. See Chepkevich, 2 A.3d at 1194. There, the court rejected the plaintiff’s argument that “by enumerating risks inherent to downhill skiing and then requiring the skier to accept those risks, the Release only bars suits that arise out of the listed risks.” Id. The court found that the release, which stated that skiing “is a dangerous sport with inherent and other risks,” was not limited to the enumerated the risks, but clearly included “other risks.” Here, as in Chepkevich, Plaintiff’s argument [*20]  fails on textual grounds. It is true that the agreement, in paragraph one, lists some risks inherent to horseback riding. However, in paragraph two and six, the agreement states that Plaintiff relinquishes “any and all claims.” There is no limiting language in paragraph two or six that would indicate that Plaintiff was only relinquishing claims arising out of the enumerated risks in paragraph one.

Plaintiff finally argues that Defendant’s conduct amounts to recklessness and exculpatory agreements cannot immunize reckless conduct. (Doc. 22 at 14); see Tayar, 47 A.3d at 1202-03. Defendant concedes that the agreement only releases it from suits for negligence, not recklessness, and counters that its “conduct at most amounts to ordinary negligence.” (Doc. 23 at 10). “Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence.” Tayar, 47 A.3d at 1200.

The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable [*21]  man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

Id. at 1200-01 (quoting Restatement (Second) of Torts § 500).

Defendant’s bare assertion that its actions do not rise to the level of recklessness does not satisfy its burden to show that there is no genuine dispute as to a material fact. The record shows that Happy Trails provided a saddle for Plaintiffs ride, that a stirrup on that saddle broke during the ride, and that Plaintiff fell from a horse when the stirrup broke. (Doc. 22-5 at 35-36, 39-40). It was the responsibility of Happy Trails, not the customer, to inspect the equipment, but no records of inspections or repairs were kept, nor was the Happy Trails’ owner able to say if any inspection of the specific stirrup occurred on the day of the accident. (Id. at 13, 53-55, 58, 60). Happy Trails’ owner testified that he bought used saddles on the internet and also from individuals who walk into his business. (Id. at 18). He was unable to say where he procured the saddle in question, how long he had had it, or how old it was. (Id. at 18-19, 58, 60). Additionally, Happy Trails’ owner displayed a somewhat cavalier attitude towards [*22]  safety, asserting that customers assume all risks associated with the activity, including equipment breaking, staff failing to put equipment on the horses correctly, and even staff failing to provide basic equipment like stirrups or a bridal. (Id. at 32-33). Viewing the record in a light most favorable to Plaintiff, a question of fact therefore remains as to whether Defendant’s action rose to the level of recklessness.

Defendant goes on to argue that Plaintiff failed to plead recklessness and that if “recklessness is the standard to apply in this case, plaintiffs compliant must be dismissed with prejudice.” (Doc. 23 at 10). This argument, however, runs counter to the holding in Archibald v. Kemble, 2009 PA Super 79, 971 A.2d 513 (Pa. Super. Ct. 2009).

Archibald involved a lawsuit stemming from Robert Archibald’s participation in a “no-check” adult hockey league. Id. at 515. In his complaint, Archibald alleged that another player, Cody Kemble, checked him into the boards of the ice hockey rink. Id. The complaint went on to say that

Cody Kemble’s negligence consisted of the following:

a. failing to assure that Robert Archibald was aware and/or warned that the check was going to be attempted before checking him into the boards;

b. failing to assure that Robert Archibald was willing [*23]  to be checked;

c. checking Robert Archibald when not safe to do so;

d. failing to understand and learn the rules, prohibition and limitation on any checking prior to participating in the non-checking league and game.

Id. at 516. First determining that Archibald would only be able to recover if he showed that Kemble acted recklessly, the Court went on to hold that recklessness “may be averred generally.” Id. at 517, 519. Thus, “merely determining the degree of care is recklessness does not give rise to a separate tort that must have been pled within the applicable statute of limitations.” Id. at 519. Instead, “Archibalds’ cause of action was…subsumed within the negligence count pled in their Complaint.” Id.; see also M.U. v. Downingtown High Sch. E., 103 F. Supp. 3d 612, 629 (E.D. Pa. 2015) (construing a separately pleaded recklessness claim “simply as a mechanism to recover punitive damages under [the] negligence claim” because “[t]here is no cause of action for recklessness under Pennsylvania law” and “recklessness is a heightened standard of care required to potentially recover punitive damages”).

Consequently, under Archibald, the fact that Plaintiff did not specifically plead recklessness in his Complaint is not fatal to his claim. In his Complaint, Plaintiff alleged that, among other things, [*24]  Defendant “provid[ed] equipment or tack that defendant knew or should have known was faulty.” This statement encompasses the allegation that Defendant recklessly provided Plaintiff with defective or faulty equipment. The fact that Plaintiffs Complaint does not contain the word “reckless” is immaterial.

In sum, because the agreement that Plaintiff signed is only enforceable to immunize Defendant for its negligence, and not for its recklessness, and because there is a genuine dispute as to the material fact of whether Defendant acted recklessly in this case, the Court finds that the agreement is not a sufficient basis for summary judgment.

B. Equine Activities Immunity Act

Defendant next points to the Equine Activities Immunity Act, 4 P.S. §§ 601-606, as an alternative, independent basis for summary judgment. The EAIA limits the liability of certain providers of equine activities if specific requirements are met. Defendant argues that, as a provider of a qualifying equine activity who has complied with the EAIA’s statutory requirements, it is entitled to immunity from suit. (Doc. 20 at 10-11). Plaintiff counters that Defendant’s negligent provision of defective or faulty equipment puts the suit outside of the EAIA’s [*25]  protections. (Doc. 22 at 4).

The issue of whether a covered entity is immunized from liability under the EAIA for providing defective or faulty equipment is a question of first impression. As such, this Court must engage in statutory interpretation. For this Court to interpret state law, it “must determine how the highest court of the State would decide an issue.” Baker ex rel. Thomas v. Gen. Motors Corp., 522 U.S. 222, 249, 118 S. Ct. 657, 139 L. Ed. 2d 580 (1998). Pennsylvania interprets statutes according to the Statutory Construction Act of 1972, 1 Pa.Cons. Stat. Ann. §§ 1501-1991. “When interpreting statutory language, the Pennsylvania Supreme Court is guided by the ‘plain meaning’ rule of construction.” Hofkin v. Provident Life & Accident Ins. Co., 81 F.3d 365, 371 (3d Cir. 1996) (citing Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583, 587 (Pa. 1982)). “The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.” 1 Pa. Cons. Stat. Ann. § 1921(a). “When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” Id. at § 1921(b).

The EAIA provides immunity for “an individual, group, club or business entity that sponsors, organizes, conducts or provides the facilities for an equine activity” including “[r]ecreational rides or drives which involve riding or other activity [*26]  involving the use of an equine.” 4 P.S. §§ 601, 602(b)(6). The EAIA, however, only provides immunity where signs of at least a certain size are “conspicuously posted on the premises…in two or more locations, which states the following: You assume the risk of equine activities pursuant to Pennsylvania law.” Id. at § 603. For covered entities in compliance with the signs requirement, “liability for negligence shall only be barred where the doctrine of knowing voluntary assumption of risk is proven with respect to damages due to injuries or death to an adult participant resulting from equine activities.” Id. at § 602(a). Finally, the Act is clear that “[t]he immunity provided for by this act shall be narrowly construed.” Id. at § 606.

Plaintiff does not argue that Defendant, as a provider of recreational horseback riding activities, is not a covered entity under the statute. Additionally, Plaintiff does not argue that Defendant did not have the appropriate signs as prescribed under the EAIA. Plaintiffs sole argument is that the Act does not bar actions for the negligent provision of faulty or defective equipment. (Doc. 22 at 6). Stated otherwise, Plaintiff argues that because he did not know he might be given defective or faulty [*27]  equipment, he could not knowingly assume the risk of such. Defendant counters that “[o]nce plaintiff entered the stables property and took part in recreational horse riding, he assumed the risk of harm associated with such activities.” (Doc. 20 at 11).

The EAIA states that “liability for negligence shall only be barred where the doctrine of knowing voluntary assumption of risk is proven.” 4 P.S. § 602(a). The Act, therefore, appears to preserve the common law assumption of risk doctrine in the context of equine activities. In delineating the contours of this doctrine, the Pennsylvania Supreme Court has looked to the Restatement Second of Torts. See Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339, 341-42 (Pa. 2000). The Restatement outlines four varieties of the doctrine, the first two of which are of interest in this case. See Restatement (second) of Torts § 496A cmt. c. The first, express assumption of risk occurs when lithe plaintiff has given his express consent to relieve the defendant of an obligation to exercise care for his protection, and agrees to take his chances as to injury from a known or possible risk.” Id. (emphasis added). This is the type of assumption of risk examined above in respect to the agreement signed by Plaintiff. The second, implied assumption of risk, occurs when lithe plaintiff has [*28]  entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances.” Id. (emphasis added).

It is self-evident that a person “cannot be found to have implicitly assumed a risk of which he had no knowledge.” Rutter v. Ne. Beaver Cty. Sch. Dist., 496 Pa. 590, 437 A.2d 1198, 1204 (Pa. 1981) (plurality opinion). As such, lithe defense of assumption of the risk requires that the defendant show that the plaintiff was subjectively aware of the facts which created the danger and…must have appreciated the danger itself and the nature, character and extent which made it unreasonable.”‘ Berman v. Radnor Rolls, Inc., 374 Pa. Super. 118, 542 A.2d 525, 532 (Pa. Super. Ct. 1988) (alteration in original) (quoting Crance v. Sohanic, 344 Pa. Super. 526, 496 A.2d 1230, 1232 (Pa. Super. Ct. 1985)); See also Restatement (second) of Torts § 496D.4 Thus, for a defendant to prevail on a summary judgment motion based on the assumption of risk defense, it must be “beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition.” Barrett v. Fredavid Builders, Inc., 454 Pa. Super. 162, 685 A.2d 129, 131 (Pa. Super. Ct. 1996) (citing Struble v. Valley Forge Military Acad., 445 Pa. Super. 224, 665 A.2d 4 (Pa. Super. Ct. 1995)). Finally, “[t]he mere fact one engages in activity that has some inherent danger does not mean that one cannot recover from a negligent party when injury is subsequently sustained.” Bullman v. Giuntoli, 2000 PA Super 284, 761 A.2d 566, 572 (Pa. Super. Ct. 2000).

4 Of course, a plaintiff’s own assertion about whether he knew of and understood [*29]  the risk is not conclusive.

There are some risks as to which no adult will be believed if he says that he did not know or understand them. Thus an adult who knowingly comes in contact with a fire will not be believed if he says that he was unaware of the risk that he might be burned by it; and the same is true of such risks as those of drowning in water or falling from a height, in the absence of any special circumstances which may conceal or appear to minimize the danger.

Restatement (Second) of Torts §496D cmt. d.

In short, to preclude Plaintiffs negligence action under the EAIA, Defendant must show that Plaintiff knew that the equipment he was provided with might break and voluntarily continued with the horseback ride in spite of that knowledge. Only then can Plaintiff be said to knowingly assume the risk. Defendant, however, has made no such showing. Defendant has failed to point to anything in the record to show that Plaintiff decided to use the equipment with the knowledge that the stirrup or any other equipment Plaintiff was provided with might break. Nor is this a case where the risk is so obvious that the knowledge could be inferred. The owner of Happy Trails testified that, in the approximately ten years he operated [*30]  the stable, he never remembered a single stirrup breaking. (Doc. 20-3 at 20-21). Given that it is not a common occurrence, it strains credibility to argue that a recreational participant would know that being provided broken equipment was likely.

Therefore, because there has been no showing that Plaintiff knew of the risk and voluntarily disregarded it, the EAIA provides no relief for Defendant.5

5 At oral argument, counsel for the Defendant conceded that, even under the broad interpretation of the Act that Defendant argued for, the Act would not immunize a covered entity for acts of recklessness or gross negligence. As this Court has already found that there is a genuine dispute as to the material fact of whether the Defendant acted recklessly, this provides an alternative ground for the finding that the Act does not provide immunity under these facts.

V. Conclusion

For the reasons stated above, the Court will deny Defendant’s Motion for Summary Judgment (Doc. 19). A separate Order follows.

/s/ Robert D. Mariani

Robert D. Mariani

United States District Judge

ORDER

AND NOW, THIS 26th DAY OF SEPTEMBER, 2016, upon consideration of Defendant’s Motion for Summary Judgment (Doc. 19), IT IS HEREBY ORDERED [*31]  THAT:

1. Defendant’s Motion for Summary Judgment (Doc. 19) is DENIED.

2. A telephone scheduling conference will be held on Wednesday, October 5, 2016, at 4:00 p.m. Counsel for Plaintiff is responsible for arranging the call to (570) 207-5750, and all parties should be ready to proceed before the undersigned is contacted.

/s/ Robert D. Mariani

Robert D. Mariani

United States District Judge