Poorly written release in Massachusetts stop lawsuit for falling off a horse during riding lessons.
Posted: June 1, 2020 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Massachusetts, Release (pre-injury contract not to sue) | Tags: Chrislar Farm, Engage in an Equine Activity, Equine Liabililty Act, Equine Liability Protection Act, Equine Liability Statute, Massachusetts, Massachusetts Appeals Court, Massachusetts Equine Liability Act Leave a commentRelease used poor language and was hidden within an application to learn to ride.
Markovitz v. Cassenti, 56 N.E.3d 894, 90 Mass.App.Ct. 1102 (2016)
State: Massachusetts , Appeals Court of Massachusetts
Plaintiff: Joanne Markovitz
Defendant: Christine Cassenti
Plaintiff Claims: Negligence
Defendant Defenses: Release
Holding: For the Defendant
Year: 2016
Summary
A release stopped a negligence claim for falling off a horse in Massachusetts. The plaintiff had been riding with the stable for more than a year and had been riding this horse for over a month when she fell off. She argued the Massachusetts Equine Liability Act allowed her to sue. The court said not, the release stopped her lawsuit and her arguments about the Massachusetts Equine Liability Act were incorrect.
Facts
On July 16, 2009, the plaintiff filled out and signed an application for riding lessons at Chrislar Farm. In that application, she wrote that she had six months of riding experience in 2001 and that she wanted to continue to learn to ride. The form contained a section entitled ” RELEASE,” which stated: ” I, the Club member/Student (or parent or guardian) recognize the inherent risks of injury involved in horseback riding/driving and being around horses generally, and in learning to ride/drive in particular. In taking lessons at CHRISLAR FARM or participating in Club activities, I assume any and all such risk of injury and further, I voluntarily release CHRISLAR FARM, its owners, instructors, employees and agents from any and all responsibility on account of any injury I (or my child or ward) may sustain for any reason while on the premises of CHRISLAR FARM or participating in Club activities, and I agree to indemnify and hold harmless CHRISLAR FARM, its owners, instructors, employees and agents on account of any such claim.”
The plaintiff signed the form on the signature line immediately below the release.
Between July of 2009 and September of 2010, the plaintiff took thirty-minute private riding lessons on a regular basis. Between September, 2010, and January, 2011, the plaintiff took one-hour group riding lessons and walked, trotted, and cantered several different horses. On September 3, 2010, the defendants leased a horse named Jolee. Christine Cassenti had known this horse for a long time. The trainer conducting the lessons thought that the horse was ” sweet and did everything you asked her to do.”
The plaintiff first rode Jolee during a ” musical horses” exercise. She then rode Jolee during the next three one-hour group lessons on December 23, 2010, December 30, 2010, and January 6, 2011. At one point during the December 23, 2010, lesson, Jolee went from a trot into a canter and stayed in a circle formation instead of performing a figure eight. Following the instructions from the trainer, the plaintiff slowed down and stopped Jolee. The plaintiff rode Jolee without incident on December 30, 2010, and January 6, 2011.
On January 20, 2011, a year and one-half after the plaintiff began taking lessons at Chrislar Farm, the plaintiff rode Jolee for the fourth time. She noticed that Jolee briefly pinned her ears. After finishing a walk, the plaintiff began trotting Jolee. At one point, Jolee sped up into a faster trot and turned left, causing the plaintiff to lose her balance and fall.
Analysis: making sense of the law based on these facts.
The argument the plaintiff attempted to make was the Massachusetts Equine Liability Act created a duty on the part of the defendants that was not protected by the release. The act listed risks which a rider of a horse accepted. The statute had an exception to that list
“Nothing in subsection (b) shall prevent or limit the liability of an equine activity sponsor, an equine professional, or any other person if the equine activity sponsor, equine professional, or person: ” (1) . . . (ii) provided the equine and failed to make reasonable and prudent efforts to determine the ability of the participant . . . to safely manage the particular equine based on the participant’s representations of his ability.”
The plaintiff argued this created a new duty which the defendant in this case breached.
However the court found the section did not create a new duty, it only allowed a plaintiff to proceed with a negligence claim in certain exceptional situations. Because the release barred negligence claims the plaintiff’s lawsuit was properly dismissed by the courts.
So Now What?
The odd thing about this case is there was no gross negligence claim to get around the release.
However, the were some risks run by the plaintiff that in other states might have caused problems. They were obvious issues by this court because the court raised them in the facts.
- The form Application for Riding Lessons also contained the release, hidden in the form.
- The language in the release was weak and did not contain the word negligence.
But for solid law in Massachusetts supporting releases this case in other states would have gone differently.
What do you think? Leave a comment.
Copyright 2020 Recreation Law (720) 334 8529
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Jim@Rec-Law.US
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,
Markovitz v. Cassenti, 56 N.E.3d 894, 90 Mass.App.Ct. 1102 (2016)
Posted: May 27, 2020 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Legal Case, Massachusetts, Release (pre-injury contract not to sue) | Tags: Donkeys, Equine Activities, Equine Activities (Horses, Equine Liability Statute, Massachusetts, Massachusetts Equine Liability Act, Mules), riding, Riding Lesson 1 CommentMarkovitz v. Cassenti, 56 N.E.3d 894, 90 Mass.App.Ct. 1102 (2016)
90 Mass.App.Ct. 1102 (2016)
56 N.E.3d 894
Joanne Markovitz & another [ 1]
Christine Cassenti & another. [ 2]
15-P-1274
Appeals Court of Massachusetts
August 18, 2016
Editorial Note:
This decision has been referenced in an “Appeals Court of Massachusetts Summary Dispositions” table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel’s decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 N.4, 881 N.E.2d 792 (2008).
Judgment affirmed.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this negligence action arising out of the plaintiff’s injury following her fall off a horse during a group riding lesson at defendants’ Chrislar Farm, a Superior Court judge granted summary judgment for the defendants.[ 3] The plaintiff appealed.
Background.
On July 16, 2009, the plaintiff filled out and signed an application for riding lessons at Chrislar Farm. In that application, she wrote that she had six months of riding experience in 2001 and that she wanted to continue to learn to ride. The form contained a section entitled ” RELEASE,” which stated: ” I, the Club member/Student (or parent or guardian) recognize the inherent risks of injury involved in horseback riding/driving and being around horses generally, and in learning to ride/drive in particular. In taking lessons at CHRISLAR FARM or participating in Club activities, I assume any and all such risk of injury and further, I voluntarily release CHRISLAR FARM, its owners, instructors, employees and agents from any and all responsibility on account of any injury I (or my child or ward) may sustain for any reason while on the premises of CHRISLAR FARM or participating in Club activities, and I agree to indemnify and hold harmless CHRISLAR FARM, its owners, instructors, employees and agents on account of any such claim.”
The plaintiff signed the form on the signature line immediately below the release.[ 4]
Between July of 2009 and September of 2010, the plaintiff took thirty-minute private riding lessons on a regular basis. Between September, 2010, and January, 2011, the plaintiff took one-hour group riding lessons and walked, trotted, and cantered several different horses. On September 3, 2010, the defendants leased a horse named Jolee. Christine Cassenti had known this horse for a long time. The trainer conducting the lessons thought that the horse was ” sweet and did everything you asked her to do.”
The plaintiff first rode Jolee during a ” musical horses” exercise. She then rode Jolee during the next three one-hour group lessons on December 23, 2010, December 30, 2010, and January 6, 2011. At one point during the December 23, 2010, lesson, Jolee went from a trot into a canter and stayed in a circle formation instead of performing a figure eight. Following the instructions from the trainer, the plaintiff slowed down and stopped Jolee. The plaintiff rode Jolee without incident on December 30, 2010, and January 6, 2011.
On January 20, 2011, a year and one-half after the plaintiff began taking lessons at Chrislar Farm, the plaintiff rode Jolee for the fourth time. She noticed that Jolee briefly pinned her ears. After finishing a walk, the plaintiff began trotting Jolee. At one point, Jolee sped up into a faster trot and turned left, causing the plaintiff to lose her balance and fall.
Discussion.
Massachusetts courts have generally upheld release agreements immunizing defendants from future liability for their negligent acts, including in cases related to sports and recreation. See Lee v. Allied Sports Assocs., Inc., 349 Mass. 544, 550, 552, 209 N.E.2d 329 (1965) (spectator at pit area of speedway); Cormier v. Central Mass. Chapter of the Natl. Safety Council, 416 Mass. 286, 288-289, 620 N.E.2d 784 (1993) (beginner rider in motorcycle safety class); Sharon v. Newton, 437 Mass. 99, 105-107, 769 N.E.2d 738 (2002) (student at cheerleading practice). The challenges to releases from liability have regularly been resolved by summary judgment. See, e.g., Cormier, supra at 287; Sharon, supra at 103; Gonsalves v. Commonwealth, 27 Mass.App.Ct. 606, 606, 541 N.E.2d 366 (1989). In this case, we conclude that the release signed by the plaintiff, which the plaintiff has not challenged as unclear or ambiguous, barred her negligence claim.[ 5]
To avoid the preclusive effect of the release, the plaintiff argues that she was entitled to proceed under G. L. c. 128, § 2D( c )(1)(ii), inserted by St. 1992, c. 212, § 1, which provides one of the exceptions to the exemption from liability: ” Nothing in subsection (b) shall prevent or limit the liability of an equine activity sponsor, an equine professional, or any other person if the equine activity sponsor, equine professional, or person: ” (1) . . . (ii) provided the equine and failed to make reasonable and prudent efforts to determine the ability of the participant . . . to safely manage the particular equine based on the participant’s representations of his ability.” [ 6]
Rather than creating a new duty in addition to those that already exist under our common law, as argued by the plaintiff, this subsection provides an exception to the overall bar to liability established by the statute, and allows a plaintiff to proceed with a negligence claim in certain limited circumstances. Because the statute does not create new duties on the part of the equine professional, the plaintiff cannot rely on it to avoid the preclusive effect of the release she signed. This case is distinguishable from Pinto v. Revere-Saugus Riding Academy, Inc., 74 Mass.App.Ct. 389, 395, 907 N.E.2d 259 (2009), which did not involve a release.
Where the release is dispositive of the plaintiff’s claim, we need not decide if there were genuine issues of material fact as to whether the defendants failed to make reasonable efforts to determine the plaintiff’s ability to safely manage Jolee.
Judgment affirmed.
Cohen, Agnes & Henry, JJ.[ 7].
———
Notes:
[1]Gabriel Markovitz. He claimed loss of consortium.
[2]Lawrence Cassenti.
[3]For simplicity, we will refer to Joanne Markovitz as the plaintiff.
[4]The form also contained the following: ” WARNING: Under Massachusetts law, an equine professional is not liable for any injury to, or the death of, a participant in equine activities resulting from the inherent risks of equine activities, pursuant to Chapter 128, Section 2D of the General Laws.”
[5]” [W]hile a party may contract against liability for harm caused by its negligence, it may not do so with respect to its gross negligence.” Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass.App.Ct. 17, 19, 687 N.E.2d 1263 (1997). In a footnote in her brief, the plaintiff argues that it is a question of fact whether the trainer’s conduct amounted to gross negligence or wilful and wanton conduct. Here, viewing the summary judgment record in the light most favorable to the plaintiff, she cannot make out a case of gross negligence.
[6]The complaint contains a negligence count and a loss of consortium count. There is no mention of G. L. c. 128, § 2D.
[7]The panelists are listed in order of seniority.
———
Hawaii § 663B-2. Equine activities; rebuttable presumption
Posted: September 17, 2019 Filed under: Hawaii | Tags: Equine Activities, Equine Liability Act, Equine Liability Statute, Hawaii Leave a commentHawaii Statutes
Division 4. COURTS AND JUDICIAL PROCEEDINGS
Title 36. CIVIL REMEDIES AND DEFENSES AND SPECIAL PROCEEDINGS
Chapter 663B. EQUINE ACTIVITIES
Current through Act 286 of the 2019 Legislative Session
§ 663B-2. Equine activities; rebuttable presumption
(a) In any civil action for injury, loss, damage, or death of a participant, there shall be a presumption that the injury, loss, damage, or death was not caused by the negligence of an equine activity sponsor, equine professional, or their employees or agents, if the injury, loss, damage, or death was caused solely by the inherent risk and unpredictable nature of the equine. An injured person or their legal representative may rebut the presumption of no negligence by a preponderance of the evidence.
(b) Nothing in this section shall prevent or limit the liability of an equine activity sponsor, an equine professional, or their employees or agents if the equine activity sponsor, equine professional, or person:
(1) Provided the equipment or tack, and knew or should have known that the equipment or tack was faulty, and the equipment or tack was a proximate cause of the injury;
(2) Provided the equine and failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity; or determine the ability of the participant to safely manage the particular equine based on the participant’s representations of the participant’s ability; or determine the characteristics of the particular equine and suitability of the equine to participate in equine activities with the participant; or failed to reasonably supervise the equine activities and such failure is a proximate cause of the injury;
(3) Owns, leases, rents, or otherwise is in lawful possession and control of the land or facilities upon which the participant sustained injuries because of a dangerous latent condition which was known or reasonably should have been known to the equine activity sponsor, equine professional, or person, or for which reasonable warning signs have not been conspicuously posted;
(4) Commits an act or omission that constitutes gross negligence or wilful or wanton disregard for the safety of the participant, and that act or omission caused the injury; or
(5) Intentionally injures the participant.
(c) Nothing in subsection (a) shall prevent or limit the liability of an equine activity sponsor or an equine professional under liability provisions as set forth in the products liability laws or in sections 142-63, 142-64, 142-65, 142-66, and 142-68.
Cite as (Casemaker) HRS § 663B-2
History. L 1994, c 249, pt of §1
Note:
Revision Note
Subsection (c) redesignated pursuant to § 23G-15(1).
Case Notes:
If plaintiff’s claims that ranch tour guide failed to reasonably supervise the equine activities that were the proximate cause of plaintiff’s injury were correct, the presumption of non-negligence set forth in this section would not apply; thus it was error for trial court to apply this section to the case. 111 Haw. 254, 141 P.3d 427.
Pennsylvania Equine Activities Immunity Act
Posted: June 6, 2017 Filed under: Pennsylvania | Tags: Equine, Equine Liability Act, Equine Liability Protection Act, Equine Liability Statute, Horse, Immunity, Pennsylvania Equine Activities Immunity Act, stable Leave a commentPennsylvania Equine Activities Immunity Act
Pennsylvania Statutes
Title 4. Amusements
Chapter 13. Equine Activity
§ 601. Scope. 1
§ 602. Immunity. 1
§ 603. Signing. 2
§ 604. Equine propensity. 3
§ 605. Effect on other laws. 3
§ 606. Construction.. 3
§ 601. Scope
This act shall apply to an individual, group, club or business entity that sponsors, organizes, conducts or provides the facilities for an equine activity as defined in this act.
HISTORY: Act 2005-93 (S.B. 618), P.L. 472, § 1, approved Nov. 22, 2005, eff. in 60 days.
§ 602. Immunity
(a) ASSUMPTION OF RISK.–
As to those within the scope of this act, 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.
(b) EQUINE ACTIVITIES.–
For the purposes of this act, immunity shall apply where an equine is utilized in the following manner:
(1) Equine training, teaching, riding instruction, shows, fairs, parades, competitions or performances which involve breeds of equine participating in an activity. This paragraph shall include, but not be limited to, dressage, hunter and jumper shows, Grand Prix jumping, three-day eventing, combined training, rodeos, reining, cutting, team penning and sorting, driving, pulling, barrel racing, steeplechasing, English and Western performance riding and endurance and nonendurance trail riding. This paragraph shall also include Western games, gymkhana, hunting, packing, therapeutic riding and driving and recreational riding.
(2) Equine or rider and driver training, teaching, instruction or evaluation. This paragraph includes clinics, seminars and demonstrations.
(3) Boarding equines, including normal daily care.
(4) Breeding equines, whether by live cover or artificial insemination.
(5) Inspecting, riding or evaluating an equine belonging to another by a purchaser or agent, whether or not the owner of the equine has received anything of value for the use of the equine or is permitting a prospective purchaser or a purchaser’s agent to ride, drive, inspect or evaluate the equine.
(6) Recreational rides or drives which involve riding or other activity involving the use of an equine.
(7) Placing, removing or replacing of horseshoes or the trimming of an equine’s hooves.
(8) Leading, handling or grooming of an equine.
HISTORY: Act 2005-93 (S.B. 618), P.L. 472, § 2, approved Nov. 22, 2005, eff. in 60 days.
1. In support of an affirmance on appeal, judgment was properly entered for a decedent’s estate administratrix on her claims of negligence, wrongful death, and survival against a race track entity that arose when the thoroughbred race horse that decedent was exercising reacted to chickens that were roaming freely on the track, as the Pennsylvania Equine Activities Act was inapplicable to the decedent’s activity. Calderon v. Phila. Park Casino & Racetrack, 2014 Phila. Ct. Com. Pl. LEXIS 394 (Pa. C.P. Nov. 24, 2014).
2. In support of an affirmance on appeal, judgment was properly entered for a decedent’s estate administratrix on her claims of negligence, wrongful death, and survival against a race track entity that arose when the thoroughbred race horse that decedent was exercising reacted to chickens that were roaming freely on the track, as the Pennsylvania Equine Activities Act was inapplicable to the decedent’s activity. Calderon v. Phila. Park Casino & Racetrack, 2014 Phila. Ct. Com. Pl. LEXIS 394 (Pa. C.P. Nov. 24, 2014).
§ 603. Signing
% This act shall provide immunity only where signing is conspicuously posted on the premises on a sign at least three feet by two feet, in two or more locations, which states the following: You assume the risk of equine activities pursuant to Pennsylvania law.
HISTORY: Act 2005-93 (S.B. 618), P.L. 472, § 3, approved Nov. 22, 2005, eff. in 60 days.
§ 604. Equine propensity
Evidence of viciousness of the equine shall not be required before a possessor of an equine shall be subject to liability for harm.
HISTORY: Act 2005-93 (S.B. 618), P.L. 472, § 4, approved Nov. 22, 2005, eff. in 60 days.
§ 605. Effect on other laws
This act shall not affect common law or any statute for the protection of the user of the equine. In no event shall this act apply to any matter involving a motor vehicle covered by 75 Pa.C.S. Ch. 17 (relating to financial responsibility) or a successor act or to any non-equine-related activity or entity.
HISTORY: Act 2005-93 (S.B. 618), P.L. 472, § 5, approved Nov. 22, 2005, eff. in 60 days.
§ 606. Construction
The immunity provided for by this act shall be narrowly construed.
HISTORY: Act 2005-93 (S.B. 618), P.L. 472, § 6, approved Nov. 22, 2005, eff. in 60 days.
LexisNexis (R) Notes: Go to CASE NOTESCASE NOTESGo back to the top of LexisNexis (R) NotesCASE NOTES
1. In support of an affirmance on appeal, judgment was properly entered for a decedent’s estate administratrix on her claims of negligence, wrongful death, and survival against a race track entity that arose when the thoroughbred race horse that decedent was exercising reacted to chickens that were roaming freely on the track, as the Pennsylvania Equine Activities Act was inapplicable to the decedent’s activity. Calderon v. Phila. Park Casino & Racetrack, 2014 Phila. Ct. Com. Pl. LEXIS 394 (Pa. C.P. Nov. 24, 2014).
2. In support of an affirmance on appeal, judgment was properly entered for a decedent’s estate administratrix on her claims of negligence, wrongful death, and survival against a race track entity that arose when the thoroughbred race horse that decedent was exercising reacted to chickens that were roaming freely on the track, as the Pennsylvania Equine Activities Act was inapplicable to the decedent’s activity. Calderon v. Phila. Park Casino & Racetrack, 2014 Phila. Ct. Com. Pl. LEXIS 394 (Pa. C.P. Nov. 24, 2014).
Michigan Equine Activity Liability Act
Posted: January 9, 2016 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Michigan | Tags: Equine, Equine Activities, Equine Liability Act, Equine Liability Statute, Horse, Horses, Michigan, stable Leave a commentMICHIGAN COMPILED LAWS SERVICE
Copyright © 2015 Matthew Bender & Company, Inc.
a member of the LexisNexis Group.
All rights reserved.
This document is current through 2015 Public Act 202 with the exception of Public Acts 160, 167, 170, 173-176, 178-179, 181, 182, 191, and 198.
Chapter 691 Judiciary
Act 351 of 1994 Equine Activity Liability Act
Go to the Michigan Code Archive Directory
MCLS § 691.1662 (2015)
§ 691.1663. Injury, death, or property damage; liability.
§ 691.1664. Liability; exception; waiver.
§ 691.1665. Liability not prevented or limited; conditions.
§ 691.1666. Notice; posting and maintenance of signs; contract; contents of notice.
§ 691.1667. Applicability of act.
§ 691.1661. Short title.
Sec. 1. This act shall be known and may be cited as the “equine activity liability act”.
HISTORY: Pub Acts 1994, No. 351, § 1, eff March 30, 1995.
NOTES:
Prior codification:
MSA § 12.418(1)
Editor’s notes:
Pub Acts 1994, No. 351, § 7, eff March 30, 1995, provides:
“Sec. 7. This act applies only to a cause of action filed on or after the effective date of this act.”.
LexisNexis(R) Michigan analytical references:
Michigan Law and Practice, Animals §§ 61, 71
Michigan Law and Practice, Torts § 74
ALR notes:
Liability of owner or bailor of horse for injury by horse to hirer or bailee thereof, 6 ALR4th 358
Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 54 ALR5th 513
Liability of owner of horse to person injured or killed when kicked, bitten, knocked down, and the like, 85 ALR2d 1161
Liability of youth camp, its agents or employees, or of scouting leader or organization, for injury to child participant in program, 88 ALR3d 1236
Research references:
4 Am Jur 2d, Animals §§ 96-100, 105, 106, 113-115, 122, 134, 136-141
1C Am Jur Pl & Pr Forms, Rev, Animals, §§ 3, 132-140
13 Am Jur Proof of Facts 2d 473, Knowledge of Animal’s Vicious Propensities
25 Am Jur Proof of Facts 2d 461, Failure to Use Due Care in Providing Horses for Hire
§ 691.1662. Definitions.
Sec. 2. As used in this act:
(a) “Engage in an equine activity” means riding, training, driving, breeding, being a passenger upon, or providing or assisting in veterinary treatment of an equine, whether mounted or unmounted. Engage in an equine activity includes visiting, touring, or utilizing an equine facility as part of an organized event or activity including the breeding of equines, or assisting a participant or show management. Engage in equine activity does not include spectating at an equine activity, unless the spectator places himself or herself in an unauthorized area and in immediate proximity to the equine activity.
(b) “Equine” means horse, pony, mule, donkey, or hinny.
(c) “Equine activity” means any of the following:
(i) An equine show, fair, competition, performance, or parade including, but not limited to, dressage, a hunter and jumper horse show, grand prix jumping, a 3-day event, combined training, a rodeo, riding, driving, pulling, cutting, polo, steeplechasing, English and western performance riding, endurance trail riding, gymkhana games, and hunting.
(ii) Equine training or teaching activities.
(iii) Boarding equines, including their normal daily care.
(iv) Breeding equines, including the normal daily care and activities associated with breeding equines.
(v) Riding, inspecting, or evaluating an equine belonging to another, whether or not the owner receives monetary consideration or another thing of value for the use of the equine or is permitting a prospective purchaser of the equine or an agent to ride, inspect, or evaluate the equine.
(vi) A ride, trip, hunt, or other activity, however informal or impromptu, that is sponsored by an equine activity sponsor.
(vii) Placing or replacing a horseshoe on or hoof trimming of an equine.
(d) “Equine activity sponsor” means an individual, group, club, partnership, or corporation, whether or not operating for profit, that sponsors, organizes, or provides the facilities for an equine activity, including, but not limited to, a pony club; 4-H club; hunt club; riding club; school- or college-sponsored class, program, or activity; therapeutic riding program; stable or farm owner; and operator, instructor, or promoter of an equine facility including, but not limited to, a stable, clubhouse, ponyride string, fair, or arena at which the equine activity is held.
(e) “Equine professional” means a person engaged in any of the following for compensation:
(i) Instructing a participant in an equine activity.
(ii) Renting an equine, equipment, or tack to a participant.
(iii) Providing daily care of horses boarded at an equine facility.
(iv) Training an equine.
(v) Breeding of equines for resale or stock replenishment.
(f) “Inherent risk of an equine activity” means a danger or condition that is an integral part of an equine activity, including, but not limited to, any of the following:
(i) An equine’s propensity to behave in ways that may result in injury, harm, or death to a person on or around it.
(ii) The unpredictability of an equine’s reaction to things such as sounds, sudden movement, and people, other animals, or unfamiliar objects.
(iii) A hazard such as a surface or subsurface condition.
(iv) Colliding with another equine or object.
(g) “Participant” means an individual, whether amateur or professional, engaged in an equine activity, whether or not a fee is paid to participate.
HISTORY: Pub Acts 1994, No. 351, § 2, eff March 30, 1995.
NOTES:
Prior codification:
MSA § 12.418(2)
Editor’s notes:
Pub Acts 1994, No. 351, § 7, eff March 30, 1995, provides:
“Sec. 7. This act applies only to a cause of action filed on or after the effective date of this act.”.
NOTES TO DECISIONS
Plaintiff, a visitor to a stable, was a “participant” under the Equine Activity Liability Act when she briefly assisted in the care of a horse owned by a friend. Therefore her claim for damages arising from being bitten by a horse was properly dismissed on summary. Amburgey v. Sauder, 238 Mich. App. 228, 605 N.W.2d 84, 1999 Mich. App. LEXIS 282 (Mich. Ct. App. 1999).
Horse owner could invoke MCL § 691.1663 of the Michigan Equine Activity Liability Act (EALA), MCL §§ 691.1661 et seq., although she was not an equine professional or an equine activity sponsor because she fit within the definition of “another person” under § 691.1663 of the EALA. Also, she properly was characterized as an equine participant as that term was defined in MCL § 691.1662. Gardner v. Simon, 445 F. Supp. 2d 786, 2006 U.S. Dist. LEXIS 57228 (W.D. Mich. 2006).
Rider’s injuries while riding a horse resulted from “an inherent risk of an equine activity” as that phrase was defined under MCL § 691.1662(f) of the Michigan Equine Activity Liability Act, MCL §§ 691.1661 et seq., based on the rider’s testimony that, upon being mounted, the horse got a little antsy and started to raise up on the front end a little bit at which time the rider, who was experienced, began turning the horse in tight circles to settle him down. After turning two circles, the horse bumped his head on a tree; reared up and caught one of his front hoofs in a tree; went over backwards and fell on the rider, injuring the rider. Gardner v. Simon, 445 F. Supp. 2d 786, 2006 U.S. Dist. LEXIS 57228 (W.D. Mich. 2006).
LexisNexis(R) Michigan analytical references:
Michigan Law and Practice, Animals § 73
ALR notes:
Liability of owner or bailor of horse for injury by horse to hirer or bailee thereof, 6 ALR4th 358
Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 54 ALR5th 513
Liability of owner of horse to person injured or killed when kicked, bitten, knocked down, and the like, 85 ALR2d 1161
Liability of youth camp, its agents or employees, or of scouting leader or organization, for injury to child participant in program, 88 ALR3d 1236
Michigan Digest references:
Animals § 15
Research references:
1C Am Jur Pl & Pr Forms, Rev, Animals, § 1
25 Am Jur Proof of Facts 2d 461, Failure to Use Due Care in Providing Horses for Hire
§ 691.1663. Injury, death, or property damage; liability.
Sec. 3. Except as otherwise provided in section 5, an equine activity sponsor, an equine professional, or another person is not liable for an injury to or the death of a participant or property damage resulting from an inherent risk of an equine activity. Except as otherwise provided in section 5, a participant or participant’s representative shall not make a claim for, or recover, civil damages from an equine activity sponsor, an equine professional, or another person for injury to or the death of the participant or property damage resulting from an inherent risk of an equine activity.
HISTORY: Pub Acts 1994, No. 351, § 3, eff March 30, 1995.
NOTES:
Prior codification:
MSA § 12.418(3)
Editor’s notes:
Pub Acts 1994, No. 351, § 7, eff March 30, 1995, provides:
“Sec. 7. This act applies only to a cause of action filed on or after the effective date of this act.”.
NOTES TO DECISIONS
Judgment granting summary disposition under MCR 2.116(C)(10) in favor of a horse owner in a neighbor’s personal injury action was affirmed because the neighbor failed to produce evidence in support of her claims under MCL 691.1665(b) and (d) as her injury resulted from an inherent risk of an equine activity and she did not prove otherwise. The claim was barred under MCL 691.1663. Beattie v. Mickalich, 284 Mich. App. 564, 773 N.W.2d 748, 2009 Mich. App. LEXIS 1445 (Mich. Ct. App. 2009), rev’d, 486 Mich. 1060, 784 N.W.2d 38, 2010 Mich. LEXIS 1452 (Mich. 2010).
Horse owner could invoke MCL § 691.1663 of the Michigan Equine Activity Liability Act (EALA), MCL §§ 691.1661 et seq., although she was not an equine professional or an equine activity sponsor because she fit within the definition of “another person” under § 3 of the EALA. Also, she properly was characterized as an equine participant as that term was defined in MCL § 691.1662. Gardner v. Simon, 445 F. Supp. 2d 786, 2006 U.S. Dist. LEXIS 57228 (W.D. Mich. 2006).
Bar to liability set forth in MCL § 691.1663 of the Michigan Equine Activity Liability Act (EALA), MCL §§ 691.1661 et seq., was subject to MCL § 691.1665, which provided that § 691.1663 of the EALA did not prevent liability for a negligent act or omission that proximately caused an injury. Accordingly, the EALA did not prevent liability on a rider’s claim that a horse owner was negligent in failing to warn the rider about the horse’s dangerous and viscous propensities; and whether the owner acted reasonably by suggesting to the rider that he ride the horse and not warning the rider that the horse was in need of further training, in light of the rider’s extensive experience with horses, was clearly a question of fact for a jury. Gardner v. Simon, 445 F. Supp. 2d 786, 2006 U.S. Dist. LEXIS 57228 (W.D. Mich. 2006).
Statutory references:
Section 5, above referred to, is § 691.1665.
LexisNexis(R) Michigan analytical references:
Michigan Law and Practice, Animals §§ 71, 73
Michigan Law and Practice, Torts § 74
ALR notes:
Liability of owner or bailor of horse for injury by horse to hirer or bailee thereof, 6 ALR4th 358
Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 54 ALR5th 513
Liability of owner of horse to person injured or killed when kicked, bitten, knocked down, and the like, 85 ALR2d 1161
Liability of youth camp, its agents or employees, or of scouting leader or organization, for injury to child participant in program, 88 ALR3d 1236
Michigan Digest references:
Animals § 15
Research references:
4 Am Jur 2d, Animals §§ 96-100, 105, 106, 113-115, 122, 134, 136-141
1C Am Jur Pl & Pr Forms, Rev, Animals, §§ 3, 132-140
13 Am Jur Proof of Facts 2d 473, Knowledge of Animal’s Vicious Propensities
25 Am Jur Proof of Facts 2d 461, Failure to Use Due Care in Providing Horses for Hire
§ 691.1664. Liability; exception; waiver.
Sec. 4. (1) This act does not apply to a horse race meeting that is regulated by the racing law of 1980, Act No. 327 of the Public Acts of 1980, being sections 431.61 to 431.88 of the Michigan Compiled Laws.
(2) Two persons may agree in writing to a waiver of liability beyond the provisions of this act and such waiver shall be valid and binding by its terms.
HISTORY: Pub Acts 1994, No. 351, § 4, eff March 30, 1995.
NOTES:
Prior codification:
MSA § 12.418(4)
Editor’s notes:
Pub Acts 1994, No. 351, § 7, eff March 30, 1995, provides:
“Sec. 7. This act applies only to a cause of action filed on or after the effective date of this act.”.
NOTES TO DECISIONS
The Equine Activity Liability Act (EALA) provides immunity to commercial riding stables from claims for damages resulting from the inherent risks of horseback riding and being around horses, but the immunity provision does not apply to horse race meetings; a horse race meeting within the meaning of the EALA includes the activity of exercising a race horse at a track in preparation for a race; while the EALA did not confer immunity on a race track in a suit brought by a exercise rider who was injured when he was thrown from a horse, the release signed by the plaintiff was broad enough to protect the defendant from liability. Cole v. Ladbroke Racing Mich., Inc., 241 Mich. App. 1, 614 N.W.2d 169, 2000 Mich. App. LEXIS 110 (Mich. Ct. App. 2000), app. denied, 463 Mich. 972, 623 N.W.2d 595, 2001 Mich. LEXIS 223 (Mich. 2001).
LexisNexis(R) Michigan analytical references:
Michigan Law and Practice, Animals § 71
Michigan Law and Practice, Torts § 74
ALR notes:
Liability of owner or bailor of horse for injury by horse to hirer or bailee thereof, 6 ALR4th 358
Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 54 ALR5th 513
Liability of owner of horse to person injured or killed when kicked, bitten, knocked down, and the like, 85 ALR2d 1161
Liability of youth camp, its agents or employees, or of scouting leader or organization, for injury to child participant in program, 88 ALR3d 1236
Michigan Digest references:
Animals § 13
Research references:
4 Am Jur 2d, Animals §§ 96-100, 105, 106, 113-115, 122, 134, 136-141
25 Am Jur Proof of Facts 2d 461, Failure to Use Due Care in Providing Horses for Hire
Legal periodicals:
Fayz, Annual Survey of Michigan Law, June 1, 1999-May 31, 2000: Torts, 47 Wayne L Rev 719 (2001)
§ 691.1664. Liability; exception; waiver.
Sec. 4. (1) This act does not apply to a horse race meeting that is regulated by the racing law of 1980, Act No. 327 of the Public Acts of 1980, being sections 431.61 to 431.88 of the Michigan Compiled Laws.
(2) Two persons may agree in writing to a waiver of liability beyond the provisions of this act and such waiver shall be valid and binding by its terms.
HISTORY: Pub Acts 1994, No. 351, § 4, eff March 30, 1995.
NOTES:
Prior codification:
MSA § 12.418(4)
Editor’s notes:
Pub Acts 1994, No. 351, § 7, eff March 30, 1995, provides:
“Sec. 7. This act applies only to a cause of action filed on or after the effective date of this act.”.
NOTES TO DECISIONS
The Equine Activity Liability Act (EALA) provides immunity to commercial riding stables from claims for damages resulting from the inherent risks of horseback riding and being around horses, but the immunity provision does not apply to horse race meetings; a horse race meeting within the meaning of the EALA includes the activity of exercising a race horse at a track in preparation for a race; while the EALA did not confer immunity on a race track in a suit brought by a exercise rider who was injured when he was thrown from a horse, the release signed by the plaintiff was broad enough to protect the defendant from liability. Cole v. Ladbroke Racing Mich., Inc., 241 Mich. App. 1, 614 N.W.2d 169, 2000 Mich. App. LEXIS 110 (Mich. Ct. App. 2000), app. denied, 463 Mich. 972, 623 N.W.2d 595, 2001 Mich. LEXIS 223 (Mich. 2001).
LexisNexis(R) Michigan analytical references:
Michigan Law and Practice, Animals § 71
Michigan Law and Practice, Torts § 74
ALR notes:
Liability of owner or bailor of horse for injury by horse to hirer or bailee thereof, 6 ALR4th 358
Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 54 ALR5th 513
Liability of owner of horse to person injured or killed when kicked, bitten, knocked down, and the like, 85 ALR2d 1161
Liability of youth camp, its agents or employees, or of scouting leader or organization, for injury to child participant in program, 88 ALR3d 1236
Michigan Digest references:
Animals § 13
Research references:
4 Am Jur 2d, Animals §§ 96-100, 105, 106, 113-115, 122, 134, 136-141
25 Am Jur Proof of Facts 2d 461, Failure to Use Due Care in Providing Horses for Hire
Legal periodicals:
Fayz, Annual Survey of Michigan Law, June 1, 1999-May 31, 2000: Torts, 47 Wayne L Rev 719 (2001)
§ 691.1665. Liability not prevented or limited; conditions.
Sec. 5. Section 3 does not prevent or limit the liability of an equine activity sponsor, equine professional, or another person if the equine activity sponsor, equine professional, or other person does any of the following:
(a) Provides equipment or tack and knows or should know that the equipment or tack is faulty, and the equipment or tack is faulty to the extent that it is a proximate cause of the injury, death, or damage.
(b) Provides an equine and fails to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity and to determine the ability of the participant to safely manage the particular equine. A person shall not rely upon a participant’s representations of his or her ability unless these representations are supported by reasonably sufficient detail.
(c) Owns, leases, rents, has authorized use of, or otherwise is in lawful possession and control of land or facilities on which the participant sustained injury because of a dangerous latent condition of the land or facilities that is known to the equine activity sponsor, equine professional, or other person and for which warning signs are not conspicuously posted.
(d) If the person is an equine activity sponsor or equine professional, commits an act or omission that constitutes a willful or wanton disregard for the safety of the participant, and that is a proximate cause of the injury, death, or damage.
(e) If the person is not an equine activity sponsor or equine professional, commits a negligent act or omission that constitutes a proximate cause of the injury, death, or damage.
HISTORY: Pub Acts 1994, No. 351, § 5, eff March 30, 1995; amended by Pub Acts 2015, No. 87, eff September 21, 2015.
NOTES:
Prior codification:
MSA § 12.418(5)
Editor’s notes:
Pub Acts 1994, No. 351, § 7, eff March 30, 1995, provides:
“Sec. 7. This act applies only to a cause of action filed on or after the effective date of this act.”.
Amendment Notes
The 2015 amendment by PA 87 rewrote (d), which formerly read: “Commits a negligent act or omission that constitutes a proximate cause of the injury, death, or damage”; and added (e).
NOTES TO DECISIONS
Judgment granting summary disposition under MCR 2.116(C)(10) in favor of a horse owner in a neighbor’s personal injury action was affirmed because the neighbor failed to produce evidence in support of her claims under MCL 691.1665(b) and (d) as her injury resulted from an inherent risk of an equine activity and she did not prove otherwise. The claim was barred under MCL 691.1663. Beattie v. Mickalich, 284 Mich. App. 564, 773 N.W.2d 748, 2009 Mich. App. LEXIS 1445 (Mich. Ct. App. 2009), rev’d, 486 Mich. 1060, 784 N.W.2d 38, 2010 Mich. LEXIS 1452 (Mich. 2010).
Bar to liability set forth in MCL § 691.1663 of the Michigan Equine Activity Liability Act (EALA), MCL §§ 691.1661 et seq., was subject to MCL § 691.1665, which provided that § 691.1663 of the EALA did not prevent liability for a negligent act or omission that proximately caused an injury. Accordingly, the EALA did not prevent liability on a rider’s claim that a horse owner was negligent in failing to warn the rider about the horse’s dangerous and viscous propensities; and whether the owner acted reasonably by suggesting to the rider that he ride the horse and not warning the rider that the horse was in need of further training, in light of the rider’s extensive experience with horses, was clearly a question of fact for a jury. Gardner v. Simon, 445 F. Supp. 2d 786, 2006 U.S. Dist. LEXIS 57228 (W.D. Mich. 2006).
Statutory references:
Section 3, above referred to, is § 691.1663.
LexisNexis(R) Michigan analytical references:
Michigan Law and Practice, Animals § 71
ALR notes:
Liability of owner or bailor of horse for injury by horse to hirer or bailee thereof, 6 ALR4th 358
Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 54 ALR5th 513
Liability of owner of horse to person injured or killed when kicked, bitten, knocked down, and the like, 85 ALR2d 1161
Liability of youth camp, its agents or employees, or of scouting leader or organization, for injury to child participant in program, 88 ALR3d 1236
Michigan Digest references:
Animals § 15
Research references:
4 Am Jur 2d, Animals §§ 96-100, 105, 106, 113-115, 122, 134, 136-141
1C Am Jur Pl & Pr Forms, Rev, Animals, §§ 3, 132-140
25 Am Jur Proof of Facts 2d 461, Failure to Use Due Care in Providing Horses for Hire
Act 351 of 1994 Equine Activity Liability Act prec 691.1661
AN ACT to regulate civil liability related to equine activities; and to prescribe certain duties for equine professionals.
The People of the State of Michigan enact:
HISTORY: ACT 351, 1994, p 1749, eff March 30, 1995.
NOTES:
Editor’s notes:
Pub Acts 1994, No. 351, § 7, eff March 30, 1995, provides:
“Sec. 7. This act applies only to a cause of action filed on or after the effective date of this act.”
§ 691.1666. Notice; posting and maintenance of signs; contract; contents of notice.
Sec. 6. (1) An equine professional shall post and maintain signs that contain the warning notice set forth in subsection (3). The signs shall be placed in a clearly visible location in close proximity to the equine activity. The warning notice shall appear on the sign in conspicuous letters no less than 1 inch in height.
(2) A written contract entered into by an equine professional for providing professional services, instruction, or rental of equipment, tack, or an equine to a participant, whether or not the contract involves an equine activity on or off the location or site of the equine professional’s business, shall contain in clearly readable print the warning notice set forth in subsection (3).
(3) A sign or contract described in this section shall contain substantially the following warning notice:
WARNING
Under the Michigan equine activity liability act, an equine professional is not liable for an injury to or the death of a participant in an equine activity resulting from an inherent risk of the equine activity.
HISTORY: Pub Acts 1994, No. 351, § 6, eff March 30, 1995.
NOTES:
Prior codification:
MSA § 12.418(6)
Editor’s notes:
Pub Acts 1994, No. 351, § 7, eff March 30, 1995, provides:
“Sec. 7. This act applies only to a cause of action filed on or after the effective date of this act.”.
LexisNexis(R) Michigan analytical references:
Michigan Law and Practice, Animals § 72
ALR notes:
Liability of owner or bailor of horse for injury by horse to hirer or bailee thereof, 6 ALR4th 358
Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 54 ALR5th 513
Liability of owner of horse to person injured or killed when kicked, bitten, knocked down, and the like, 85 ALR2d 1161
Liability of youth camp, its agents or employees, or of scouting leader or organization, for injury to child participant in program, 88 ALR3d 1236
§ 691.1667. Applicability of act.
Sec. 7. This act applies only to a cause of action filed on or after the effective date of this act.
HISTORY: Pub Acts 1994, No. 351, § 7, eff March 30, 1995.
NOTES:
Prior codification:
MSA § 12.418(7)
One winner for equine liability statutes. Indiana statute stops litigation based on horse kick.
Posted: June 30, 2014 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Indiana | Tags: 4-H, Equine Liability Statute, Horse, Horses, Indiana, statute, Whitley County 4-H Clubs Inc. Leave a commentHowever, the plaintiff in this case owned horses and participated as a volunteer in the activities. Equine liability statutes protect horses better than the horse owners.
Perry v. Whitley County 4-H Clubs Inc., 931 N.E.2d 933; 2010 Ind. App. LEXIS 1501
Plaintiff: Teresa Perry
Defendant: Whitley County 4-H Clubs Inc.
Plaintiff Claims: injuries were caused by the 4-H Club‘s negligence in “allowing horse activities to be conducted on premises unsuitable for such activities.” the 4-H Club was negligent in deciding to hold the Round Robin Competition in the Show Barn instead of the Horse Barn…
Defendant Defenses: Equine Activity Statute
Holding:
The plaintiff was a volunteer with the defendant 4-H Club serving on its Equine Advisory Board. She also owned seven horses. During an event, the plaintiff walked over to a child to instruct the child to move her horse because she was at risk of being injured. The plaintiff in the process was kicked by a horse.
The plaintiff sued. The trial court dismissed the case based on the Indiana Equine Activity Statute. This appeal followed.
Summary of the case
The court fist looked at its duties when interpreting a statute for the first time.
When courts set out to construe a statute, the goal is to determine and give effect to the intent of the legislature. The first place courts look for evidence is the language of the statute itself, and courts strive to give the words their plain and ordinary meaning. We examine the statute as a whole and try to avoid excessive reliance on a strict literal meaning or the selective reading of individual words. We presume the legislature intended the language used in the statute to be applied logically, consistent with the statute’s underlying policy and goals, and not in a manner that would bring about an unjust or absurd result.
The court then looked at the requirements of the statute and whether or not the defendant had met the requirements. First, the protection afforded by the statute does not apply unless at least one warning sign is posted on the premises.
…the Equine Activity Statute provides that an equine activity sponsor, as a condition precedent to immunity under the statute, must post and maintain a warning sign in at least one location “on the grounds or in the building that is the site of an equine activity.” Ind. Code § 34-31-5-3(a)I. The sign “must be placed in a clearly visible location in proximity to the equine activity,” and the warning must be printed in black letters at least one inch in height. Ind. Code § 34-31-5-3(b), (c).
The court found the signs were posted at all entrances to the horse barn and were clearly visible. However, there were no signs on the show barn where the incident occurred. However, the plaintiff admitted that she had seen the signs posted on the horse barn.
The next issue was whether or not the incident and injury the plaintiff suffered were an inherent risk of equine activities. (Really? I grew up with horses; being kicked happens…….a lot.) In this case, the plaintiff tried to argue the language in the statute did not cover the actual incident that caused her injury. Meaning the accident was not caused by an inherent risk but by negligence of the defendants.
Subject to section 2 of this chapter, an equine activity sponsor or equine professional is not liable for:
(1) an injury to a participant; or
(2) the death of a participant;
resulting from an inherent risk of equine activities.
Ind. Code § 34-31-5-1(a). 2 The definition of “inherent risks of equine activities” is:
the dangers or conditions that are an integral part of equine activities, including the following:
(1) The propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around the equine.
(2) The unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals.
(3) Hazards such as surface and subsurface conditions.
(4) Collisions with other equines or objects.
(5) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within the participant’s ability.
Ind. Code § 34-6-2-69. The Equine Activity Statute further provides:
Section 1 of this chapter does not prevent or limit the liability of an equine activity sponsor . . .:
(1) who:
(A) provided equipment or tack that was faulty and that caused the injury; and
(B) knew or should have known that the equipment or tack was faulty;
(2) who provided the equine and failed to make reasonable and prudent efforts based on the participant’s representations of the participant’s ability to:
(A) determine the ability of the participant to engage safely in the equine activity; and
(B) determine the ability of the participant to safely manage the particular equine;
(3) who:
(A) was in lawful possession and control of the land or facilities on which the participant sustained injuries; and
(B) knew or should have known of the dangerous latent condition that caused the injuries;
if warning signs concerning the latent dangerous condition were not conspicuously posted on the land or in the facilities;
(4) who committed an act or omission that:
(A) constitutes reckless disregard for the safety of the participant; and
(B) caused the injury; or
(5) who intentionally injured the participant.
The court’s analysis quasi reversed the plaintiff’s argument. If the injury was caused by an inherent risk of equine activities, then it would not matter if the defendant was negligent.
The statutory definition of “inherent risks of equine activities” includes, without limitation, “[t]he unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals,” and “[t]he propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around the equine.”
The plaintiff’s injuries were due to an inherent risk of horses.
As explained above, the statute does not require that an equine activity sponsor’s alleged negligence in no way contribute to the injury complained of. Rather, the Equine Activity Statute only requires that, in order for immunity to apply, the injury must have resulted from broad categories of risk deemed integral to equine activities, regardless of whether the sponsor was negligent.
Consequently, the court held the complaint was properly dismissed, and the defendant was not liable.
So Now What?
This is a great case; the statute worked. I now have to change my quote. Equine liability statutes are 100% effective. Since being passed no horse has been sued, but owners of horses are still being sued. And the statute protected one of them.
If you are subject to a statute that requires signs, post them everywhere. Post them in every location where people enter the premises. Post them on every building and every building entrance. Post them inside the building were spectators, and participants will see the signs. The signs are cheap compared to the cost of litigation.
Understand the statute and make sure you fulfill every aspect of the statute and cover all the requirements.
As this case points out, however, the statute still left a lot to lose a lawsuit over. Statutes are rarely written to provide 100% protection. Consequently, unless you want to litigate every word in the statute, use additional defenses.
1. Use a release. As pointed out in this case, if interpreted differently or if a sign had blown away, the best defense to this lawsuit would have been a release.
2. Educate the youth you are working with and the adults working with them. In this case, the adult was there because of her knowledge of the risks of the activity.
One point that stands out in this decision is the knowledge and experience of the plaintiff. It is hard for someone who owns seven horses to argue that getting kicked by a horse is not an inherent risk of horses.
Would this decision be different if the plaintiff had no knowledge or experience with horses?
What do you think? Leave a comment.
If you like this let your friends know or post it on FaceBook, Twitter or LinkedIn
Copyright 2013 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />
#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, Indiana, Horses, 4-H, Equine Liability Statute, Whitley County 4-H Clubs Inc.,
Perry v. Whitley County 4-H Clubs Inc., 931 N.E.2d 933; 2010 Ind. App. LEXIS 1501
Posted: June 30, 2014 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Indiana, Legal Case | Tags: 4-H, Equine Liability Statute, Horses, Indiana, Whitley County 4-H Clubs Inc. Leave a commentPerry v. Whitley County 4-H Clubs Inc., 931 N.E.2d 933; 2010 Ind. App. LEXIS 1501
Teresa Perry, Appellant-Plaintiff, vs. Whitley County 4-H Clubs Inc., Appellee-Defendant.
No. 92A03-1002-CT-101
Court Of Appeals Of Indiana
931 N.E.2d 933; 2010 Ind. App. LEXIS 1501
August 16, 2010, Decided
August 16, 2010, Filed
PRIOR HISTORY: [**1]
APPEAL FROM THE WHITLEY CIRCUIT COURT. The Honorable James R. Heuer, Judge. Cause No. 92C01-0809-CT-652.
COUNSEL: ATTORNEY FOR APPELLANT: SARAH E. RESER, Glaser & Ebbs, Fort Wayne, Indiana.
ATTORNEY FOR APPELLEE: CARRIE KOONTZ GAINES, Kopka, Pinkus Dolin & Eads, L.L.C., Mishawaka, Indiana.
JUDGES: ROBB, Judge. FRIEDLANDER, J., and KIRSCH, J., concur.
OPINION BY: ROBB
OPINION
[*934] OPINION – FOR PUBLICATION
ROBB, Judge
Case Summary and Issue
Teresa Perry appeals the trial court’s entry of summary judgment in favor of Whitley County 4-H Clubs, Inc. (the “4-H Club”) on Perry’s negligence complaint for personal injuries suffered during a horse competition sponsored by the 4-H Club. For our review, Perry raises two issues, which we consolidate and restate as whether the trial court properly granted summary judgment based on the Indiana Equine Activity Statute. Concluding there is no genuine issue of material fact and the Equine Activity Statute bars Perry’s claim for injuries resulting from inherent risks of equine activities, we affirm.
Facts and Procedural History
The undisputed facts and those most favorable to Perry as the non-movant are as follows. At all relevant times, Perry, an adult, was a member of the 4-H Clubs Equine Advisory [**2] Board, which provides guidance and instruction to children participating in the 4-H Club’s horse events, and was herself a regular participant in those [*935] events. Perry was also the owner of seven horses. In July 2007, the 4-H Club held horse practices and competitions at the Whitley County Fairgrounds as part of the Whitley County Fair. These events were generally held in the 4-H Club’s Horse Barn, but one event, the Large Animal Round Robin Competition, was held in the 4-H Club’s Show Barn, located next to the Horse Barn. The Horse Barn is over 100 feet wide but the Show Barn is approximately thirty-six feet wide along its shorter side. Horses were generally familiar with the Horse Barn but unfamiliar with the Show Barn, where they were “not allowed any other time” besides the Round Robin Competition. Appellant’s Appendix at 88. At all entrances to the Horse Barn, the 4-H Club had posted “Equine Activity warning signs” that were “clearly visible.” Id. at 18-19 (affidavit of Bill Leeuw, 4-H Club’s President of the Board).
On July 25, 2007, the Round Robin Competition was held. The Equine Advisory Board and volunteers selected the horses to be shown, and Perry herself selected one of those [**3] horses “at the last minute.” Id. at 93. Perry was present at the Round Robin Competition as an Equine Advisory Board member responsible for the safety of children handling the horses. As part of the event, seven horses were led from the Horse Barn into the Show Barn and lined up approximately two and one-half feet apart along the shorter side of the Show Barn. The horses were then turned over to children who did not normally handle horses but had experience handling animals such as pigs and cows and had received brief instruction on how to handle a horse. After one of the children finished leading a horse through a series of maneuvers, the child left the horse facing away from the center of the Show Barn, in the opposite direction from the neighboring horses and with its rear next to the head of a neighboring horse. The horse facing backwards began sniffing the rear of the neighboring horse, which pinned its ears against its head as a sign it was agitated. Perry realized this situation posed a danger to the child handling the horse facing backwards. Perry therefore approached the child and told the child to turn the horse around. As the child was doing so, the neighboring horse kicked [**4] Perry in the knee. Perry was thrown back and suffered personal injuries.
In September 2008, Perry filed a complaint against the 4-H Club alleging her injuries were caused by the 4-H Club’s negligence in “allowing horse activities to be conducted on premises unsuitable for such activities.” Id. at 6. As specifically argued by Perry at the summary judgment hearing, she alleged the 4-H Club was negligent in deciding to hold the Round Robin Competition in the Show Barn instead of the Horse Barn, as the smaller Show Barn “requires horses to be placed close together, increasing the chances that a child near the horse will be injured by one. It’s also an environment the horses aren’t familiar with, which makes it more likely that a horse will get spooked and kick someone.” Transcript at 4. Among the 4-H Club’s affirmative defenses, it alleged in its answer that Perry’s claim was barred by the Indiana Equine Activity Statute.
The 4-H Club filed a motion for summary judgment based in part on the Equine Activity Statute. Following a hearing, the trial court on January 27, 2010, issued its order granting summary judgment to the 4-H Club. The trial court found and concluded in relevant part:
14. [**5] The [4-H Club] was a sponsor of an equine activity when the accident occurred.
15. [Perry] was a participant in the equine activity in her capacity as a safe [*936] keeper when she approached the horses and was kicked.
16. The Equine Activities Act . . . is applicable to this case.
17. Being kicked by a horse is an inherent risk of equine activity.
18. There is no evidence in the designation of material facts that [the 4-H Club] committed an act or omission which constituted a reckless disregard for the safety of [Perry] or that any other conditions set in [Indiana Code section] 34-31-5-2 existed at the time of the accident.
Appellant’s App. at 5. Perry now appeals.
Discussion and Decision
I. Standard of Review
[HN1] We review a summary judgment order de novo. Tri-Etch, Inc. v. Cincinnati Ins. Co., 909 N.E.2d 997, 1001 (Ind. 2009). In so doing, we stand in the same position as the trial court and must determine whether the designated evidence shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind. 2009). In making this determination, we construe [**6] the evidence in a light most favorable to the non-moving party and resolve all doubts as to the existence of a genuine factual issue against the moving party. N. Ind. Pub. Serv. Co. v. Bloom, 847 N.E.2d 175, 180 (Ind. 2006). Our review of a summary judgment motion is limited to those materials designated by the parties to the trial court. Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind. 2001). The movant has the initial burden of proving the absence of a genuine factual dispute as to an outcome-determinative issue and only then must the non-movant come forward with evidence demonstrating genuine factual issues that should be resolved at trial. Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994).
Because this case turns on the proper application of the Equine Activity Statute, we also recite our well-established standard of review for interpretation of statutes:
[HN2] When courts set out to construe a statute, the goal is to determine and give effect to the intent of the legislature. The first place courts look for evidence is the language of the statute itself, and courts strive to give the words their plain and ordinary meaning. [**7] We examine the statute as a whole and try to avoid excessive reliance on a strict literal meaning or the selective reading of individual words. We presume the legislature intended the language used in the statute to be applied logically, consistent with the statute’s underlying policy and goals, and not in a manner that would bring about an unjust or absurd result.
Cooper Indus., LLC v. City of South Bend, 899 N.E.2d 1274, 1283 (Ind. 2009) (citations omitted).
II. Equine Activity Statute
A. Warning Signs
Perry argues the trial court erred in granting summary judgment because there is a genuine issue of fact as to whether the 4-H Club complied with the warning sign requirements of the Equine Activity Statute. We address this sub-issue first because it bears on the threshold applicability of the Equine Activity Statute as a bar to Perry’s claim. See Ind. Code § 34-31-5-3(a) (providing [HN3] “[t]his chapter does not apply unless” equine activity sponsor has posted at least one complaint warning sign). In response to Perry’s argument, the 4-H Club initially [*937] contends Perry waived the argument by not raising it to the trial court prior to the summary judgment hearing. We disagree. In general, arguments [**8] by an appellant are waived if not presented to the trial court on summary judgment, see Cook v. Ford Motor Co., 913 N.E.2d 311, 322 n.5 (Ind. Ct. App. 2009), trans. denied, and summary judgment may not be reversed on the grounds of a genuine factual issue “unless the material fact and the evidence relevant thereto shall have been specifically designated to the trial court,” T.R. 56(H). However, Perry did argue at the summary judgment hearing that the evidence designated by the 4-H Club was insufficient to establish its compliance with the warning sign requirements of the Equine Activity Statute. Moreover, this issue was already before the trial court based upon the 4-H Club’s motion for summary judgment and designation of material facts.
Proceeding to Perry’s claim, [HN4] the Equine Activity Statute provides that an equine activity sponsor, as a condition precedent to immunity under the statute, must post and maintain a warning sign in at least one location “on the grounds or in the building that is the site of an equine activity.” Ind. Code § 34-31-5-3(a)I. The sign “must be placed in a clearly visible location in proximity to the equine activity,” and the warning must be printed in black [**9] letters at least one inch in height. Ind. Code § 34-31-5-3(b), (c). The warning must state: “Under Indiana law, an equine professional is not liable for an injury to, or the death of, a participant in equine activities resulting from the inherent risks of equine activities.” Ind. Code § 34-31-5-5.
The undisputed evidence is that the 4-H Club, on the day of the incident, maintained “Equine Activity warning signs” on all entrances to the Horse Barn, and the signs were “clearly visible.” Appellant’s App. at 18-19. The 4-H Club’s equine activities were regularly held inside the Horse Barn, except for the Round Robin Competition held in the Show Barn located next to the Horse Barn. Perry acknowledged in her deposition she had seen “those signs” on the Horse Barn, id. at 114, and did not designate any evidence the signs were absent on the day of the incident or lacked the specific warning required by Indiana Code section 34-31-5-5. Perry argues, in effect, that because the only photographs the 4-H Club properly designated to the trial court do not directly show the signs contained the specific warning required, 1 the 4-H Club did not meet its burden of making a prima facie case of compliance [**10] with the statute. We decline Perry’s invitation to, in effect, interpret the Equine Activity Statute to require an equine activity sponsor to submit such photographic or documentary evidence in order to support its claim of immunity. Rather, we conclude the affidavit the 4-H Club properly designated established its prima facie case that it maintained proper warning signs, such that the burden shifted to Perry to come forward with evidence the signs were deficient. Because she did not do so, there is no genuine issue of fact as to the warning signs, and the trial court [*938] properly concluded the Equine Activity Statute applies to this case.
1 The parties dispute, and it is unclear from the record, whether a photograph identified as Defendant’s Exhibit A at Perry’s deposition, and allegedly included along with the deposition in the 4-H Club’s designation of evidence, was actually part of the designated material submitted to the trial court. That photograph, unlike those included as the 4-H Club’s Exhibit C in support of summary judgment and to which the 4-H Club referred at the summary judgment hearing, shows a warning sign containing the text specified in Indiana Code section 34-31-5-5.
B. [**11] Inherent Risk of Equine Activities
Perry also argues the trial court erred in granting summary judgment because there is a genuine issue of fact as to whether her injuries resulted from an inherent risk of equine activities. The Equine Activity Statute provides:
[HN5] Subject to section 2 of this chapter, an equine activity sponsor or equine professional is not liable for:
(1) an injury to a participant; or
(2) the death of a participant;
resulting from an inherent risk of equine activities.
Ind. Code § 34-31-5-1(a). 2 [HN6] The definition of “inherent risks of equine activities” is:
the dangers or conditions that are an integral part of equine activities, including the following:
(1) The propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around the equine.
(2) The unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals.
(3) Hazards such as surface and subsurface conditions.
(4) Collisions with other equines or objects.
(5) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the [**12] animal or not acting within the participant’s ability.
Ind. Code § 34-6-2-69. The Equine Activity Statute further provides:
[HN7] Section 1 of this chapter does not prevent or limit the liability of an equine activity sponsor . . .:
(1) who:
(A) provided equipment or tack that was faulty and that caused the injury; and
(B) knew or should have known that the equipment or tack was faulty;
(2) who provided the equine and failed to make reasonable and prudent efforts based on the participant’s representations of the participant’s ability to:
(A) determine the ability of the participant to engage safely in the equine activity; and
(B) determine the ability of the participant to safely manage the particular equine;
(3) who:
(A) was in lawful possession and control of the land or facilities on which the participant sustained injuries; and
(B) knew or should have known of the dangerous latent condition that caused the injuries;
if warning signs concerning the latent dangerous condition were not conspicuously posted on the land or in the facilities;
(4) who committed an act or omission that:
(A) constitutes reckless disregard for the safety of the participant; and
(B) caused the injury; or
[*939] (5) who intentionally [**13] injured the participant.
Ind. Code § 34-31-5-2(b). As Indiana’s Equine Activity Statute has not previously been interpreted in any reported case, 3 we will cite for their persuasive value the decisions of other jurisdictions that have interpreted similar statutes.
2 “Equine activity,” pursuant to its statutory definition, includes among other things “[e]quine shows, fairs, competitions, performances, or parades that involve equines.” Ind. Code § 34-6-2-41(a). “Equine activity sponsor” means “a person who sponsors, organizes, or provides facilities for an equine activity.” Ind. Code § 34-6-2-42. Perry does not dispute that the 4-H Club qualifies as an equine activity sponsor.
3 In Anderson v. Four Seasons Equestrian Center, Inc., 852 N.E.2d 576 (Ind. Ct. App. 2006), trans. denied, the only reported case citing the Equine Activity Statute, this court affirmed summary judgment for the defendant on the alternative grounds of waiver and release of liability. Id. at 585. We concluded the waiver applied because the plaintiff’s fall from a horse that moved while the plaintiff was attempting to mount it resulted from a risk “inherent in the nature of the activity of horse riding.” Id. at 584. However, [**14] we did not explicitly base that conclusion upon the text of the Equine Activity Statute.
Perry’s argument is that a reasonable trier of fact could find the cause of her injury was not an inherent risk of equine activities, but negligence of the 4-H Club in staging the Round Robin Competition. Perry makes no argument that any of the exceptions to immunity spelled out in Indiana Code section 34-31-5-2(b) (“Section 2(b)”) — faulty equipment or tack, provision of the equine and failure to make reasonable and prudent efforts to match the participant to the particular equine and equine activity, a latent premises defect, reckless disregard, or intentional injury — apply in this case. Therefore, we must examine whether and to what extent, consistent with the Equine Activity Statute, an equine activity sponsor may be liable for simple negligence allegedly causing injury to a participant.
Initially we note that negligence of an equine activity sponsor neither is one of the exceptions to immunity listed in Section 2(b), nor is it included in the non-exclusive list of inherent risks of equine activity under Indiana Code section 34-6-2-69. Thus, Indiana’s Equine Activity Statute, like equine activity [**15] statutes in some states but unlike some others, is silent on the place of sponsor negligence in the overall scheme of equine liability. Compare Lawson v. Dutch Heritage Farms, Inc., 502 F.Supp.2d 698, 700 (N.D. Ohio 2007) (noting Ohio’s Equine Activity Liability Act, like some other states?, is “silent as to simple negligence as an inherent risk”) (quotation omitted); with Beattie v. Mickalich, 486 Mich. 1060, 1060 784 N.W.2d 38, 2010 Mich. LEXIS 1452, 2010 WL 2756979, at *1 (Mich., July 13, 2010) (per curiam) (Michigan’s Equine Activity Liability Act abolishes strict liability for equines but expressly provides liability is not limited “‘if the . . . person . . . [c]ommits a negligent act or omission that constitutes a proximate cause of the injury?” (quoting Mich. Comp. Laws § 691.1665)). Because it is as important to recognize what a statute does not say as what it does say, City of Evansville v. Zirkelbach, 662 N.E.2d 651, 654 (Ind. Ct. App. 1996), trans. denied, and [HN8] statutes granting immunity, being in derogation of the common law, are strictly construed, see Mullin v. Municipal City of South Bend, 639 N.E.2d 278, 281 (Ind. 1994), we conclude the Equine Activity Statute was not intended by the general assembly [**16] to abrogate the cause of action for common-law negligence of an equine activity sponsor. However, pursuant to the clear text of the statute, a negligence action is precluded if the injury resulted from an inherent risk of equine activities and the facts do not fit one of the exceptions to immunity provided by Section 2(b). Stated differently, if none of the Section 2(b) exceptions apply, then an equine activity sponsor is not liable for failing to use reasonable care to mitigate an already inherent risk of equine activities that ultimately resulted in a participant’s injury.
[*940] Turning to Perry’s claim, she was injured when unexpectedly kicked by a horse that became agitated during the 4-H Club’s Round Robin Competition. The horse became agitated because another horse was standing too close nearby and began sniffing its rear, and to remove the danger to the child handling the other horse, Perry intervened. The statutory definition of “inherent risks of equine activities” includes, without limitation, “[t]he unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals,” and “[t]he propensity of an equine to behave in ways [**17] that may result in injury, harm, or death to persons on or around the equine.” Ind. Code § 34-6-2-69. Such risks directly caused Perry’s injury, in that the horse kicked as part of an unpredictable reaction to the other horse nearby and, Perry alleges, the close quarters and unfamiliar environment of the Show Barn. See Kangas v. Perry, 2000 WI App 234, 239 Wis.2d 392, 620 N.W.2d 429, 433 (Wis. Ct. App. 2000) (based on Wisconsin’s similar definition of inherent risks, concluding “horses? propensity to move without warning is an inherent risk of equine activity contemplated by the statute”), review denied. We therefore conclude Perry’s injury resulted from inherent risks of equine activities within the meaning of the Equine Activity Statute.
Perry argues the likelihood of a horse becoming agitated and kicking, and a child becoming endangered and needing to be rescued by a supervisor such as Perry, were unreasonably increased by the 4-H Club’s decision to hold the Round Robin Competition in the Show Barn, a cramped space unfamiliar to the horses. Even if that is true, however, the 4-H Club’s conduct would have contributed to Perry’s injury only by heightening the already inherent risk that a horse might [**18] behave unpredictably and in an injury-causing manner. Thus, Perry’s argument that her injury resulted not from an inherent risk of equine activities, but from the 4-H Club’s negligence in its manner of staging the Round Robin Competition, amounts to hair splitting irrelevant to the Equine Activity Statute. As explained above, the statute does not require that an equine activity sponsor’s alleged negligence in no way contribute to the injury complained of. Rather, the Equine Activity Statute only requires that, in order for immunity to apply, the injury must have resulted from broad categories of risk deemed integral to equine activities, regardless of whether the sponsor was negligent. See Ind. Code §§ 34-6-2-69; 34-31-5-1.
Perry also relies on cases from other jurisdictions that, while involving similar statutes, are distinguishable on their facts. In Steeg v. Baskin Family Camps, Inc., 124 S.W.3d 633 (Tex. App. 2003), review dismissed, the court held summary judgment for the defendant improper where there was evidence the proximate causes of the rider’s fall included the saddle slipping and the defendant’s negligent failure to secure the saddle. Id. at 639-40. In Fielder v. Academy Riding Stables, 49 P.3d 349 (Colo. Ct. App. 2002), [**19] cert. denied, the court held the defendant was not entitled to immunity where the defendant’s wranglers negligently failed to remove a screaming child from a horse, an “obvious danger” the wranglers had notice of well before the horse bolted. Id. at 351-52. Here, by contrast, there is no evidence the 4-H Club ignored an obvious, imminent danger or that Perry’s injury directly resulted from anything other than unpredictable horse behavior.
In sum, the facts viewed most favorably to Perry as the party opposing summary judgment show her injury resulted from inherent risks of equine activities and the 4-H Club was negligent, if at all, only for [*941] failing to mitigate those inherent risks. Therefore, the trial court properly concluded the Equine Activity Statute bars Perry’s claim and properly granted summary judgment to the 4-H Club.
Conclusion
There are no genuine issues of material fact that the 4-H Club complied with the warning sign requirements of the Equine Activity Statute and that Perry’s injury resulted from inherent risks of equine activities. Therefore, Perry’s claim is barred by the Equine Activity Statute and the trial court properly granted summary judgment to the 4-H Club.
Affirmed.
FRIEDLANDER, [**20] J., and KIRSCH, J., concur.
Indiana Equine Liability Statute used to stop litigation
Posted: April 29, 2013 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Indiana | Tags: 4-H, 4-H Club, Animal, Equine, Equine Liability Statute, Equus (genus), health, Horse, Indiana, Sports, United States Leave a commentPerry v. Whitley County 4-H Clubs Inc., 931 N.E.2d 933; 2010 Ind. App. LEXIS 1501
Issue of failure to post the required notice, not at issue when the plaintiff admitted reading the sign on the other building.
In this case, the plaintiff was an adult leader of a 4-H house club. The plaintiff had helped the kids and participated in the activity for years and owned seven horses. During an event, the plaintiff was moving to assist a child who had lined her horse up in a way that was irritating other horses. While moving to assist the child the plaintiff was kicked by a horse.
The event was held in a building that was only used once a year. Normally, all events were held at the horse building. The horse building had the required Indiana Equine Liability Act signs on all entrances into the building. The plaintiff had been in the Horse Building and admitted seeing the signs.
The defendant filed a motion for summary judgment, which was granted by the trial court based upon the issue that the accident was caused by a horse, and the defendant was protected under the Indiana statute. The motion was granted, and the plaintiff appealed.
Summary of the case
The plaintiff claimed the 4-H club was negligent for having a horse show in premises that were unsuitable for such activities. The plaintiff also argued that there were no warning signs as required by the statute posted around the building were the accidents occurred.
The court reviewed the statute and the required posting of the warning notice. The statute could not be used as a defense, unless there was a sign posted around the building or on the premises.
34-31-5-3. Warning notices required.
(a) This chapter does not apply unless an equine activity sponsor or an equine professional posts and maintains in at least one (1) location on the grounds or in the building that is the site of an equine activity a sign on which is printed the warning notice set forth in section 5 [IC 34-31-5-5] of this chapter.
(b) A sign referred to in subsection (a) must be placed in a clearly visible location in proximity to the equine activity.
(c)The warning notice on a sign referred to in subsection (a) must be printed in black letters, and each letter must be at least one (1) inch in height.
The court found that signs on the other building were sufficient to meet the requirements of the statute. It did so not by finding the signs were present, but by finding the plaintiff did not prove the signs were absent. An affidavit of the defendant stating the signs were present shifted the burden of proof to the plaintiff and the plaintiff failed to prove the necessary facts.
The plaintiff then argued that her injury did not arise from an inherent risk of an equine activity. (Really? The number-one thing’s horses do is kick; number two is bite and number three throw you off; This from a person who has been kicked, bitten and thrown off horses.)
The court found the plaintiff was injured by an inherent risk of hanging around horses.
The statutory definition of “inherent risks of equine activities” includes, without limitation, “[t]he unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals,” and “[t]he propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around the equine.” Ind. Code § 34-6-2-69. Such risks directly caused Perry’s injury, in that the horse kicked as part of an unpredictable reaction to the other horse nearby and, Perry alleges, the close quarters and unfamiliar environment of the Show Barn.
So Now What?
The obvious argument of the plaintiff was the injury was not due to the actions of the horse but because of the negligence of the 4-H. This normally is very effective in eliminating the defense of equine liability statutes. The human was liable; the horse was not the cause of the accident, just what was being ridden.
Looking at the argument a different way, the ladder failed not because the ladder broke, but because the person who placed the ladder where he did, caused the ladder to break.
The second issue is always having extra statutorily required warning signs, posting them wherever there are horses. It would have been easy to post a sign on the entrance with tape just for the event. Better, post a warning sign near the entrance into the grounds and on every building.
Finally, this was a lucky case. Another court could have ruled the club was negligent for creating the situation. Most courts have. Since equine liability acts have been enacted, lawsuits against horses have disappeared, however, suits against horse owners are on the rise.
Like a broken record, having all the participants, youth, parents and adults sign a release would have prevented this action, or at least made it even quicker to dismiss under Indiana’s law.
Plaintiff: Teresa Perry
Defendant: Whitley County 4-H Clubs Inc.
Plaintiff Claims: Negligence
Defendant Defenses: Indiana Equine Liability Statute
Holding: For the defendant. The acts that gave rise to the plaintiff’s injuries were protected from suit by the Indiana statute.
What do you think? Leave a comment.
If you like this let your friends know or post it on FaceBook, Twitter or LinkedIn
Copyright 2013 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss
#Authorrank
<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />
#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Indiana, 4-H, Equine, Horse, Equine Liability Statute, 4-H Club,
WordPress Tags: Indiana,Equine,Statute,litigation,author,RecreationLaw,Outside,Recreation,Outdoor,Adventure,Travel,Moss,James,Attorney,Tourism,Blog,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,Negligence,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,laws,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Horse,Club
Perry v. Whitley County 4-H Clubs Inc., 931 N.E.2d 933; 2010 Ind. App. LEXIS 1501
Posted: April 22, 2013 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Indiana, Legal Case | Tags: 4-H, 4-H Club, Appellant, Equine, Equine Liability Statute, Horse, Indiana, Indiana Court of Appeals, Summary judgment, Trial court, United States Leave a commentPerry v. Whitley County 4-H Clubs Inc., 931 N.E.2d 933; 2010 Ind. App. LEXIS 1501
Teresa Perry, Appellant-Plaintiff, vs. Whitley County 4-H Clubs Inc., Appellee-Defendant.
No. 92A03-1002-CT-101
Court Of Appeals Of Indiana
931 N.E.2d 933; 2010 Ind. App. LEXIS 1501
August 16, 2010, Decided
August 16, 2010, Filed
PRIOR HISTORY: [**1]
APPEAL FROM THE WHITLEY CIRCUIT COURT. The Honorable James R. Heuer, Judge. Cause No. 92C01-0809-CT-652.
COUNSEL: ATTORNEY FOR APPELLANT: SARAH E. RESER, Glaser & Ebbs, Fort Wayne, Indiana.
ATTORNEY FOR APPELLEE: CARRIE KOONTZ GAINES, Kopka, Pinkus Dolin & Eads, L.L.C., Mishawaka, Indiana.
JUDGES: ROBB, Judge. FRIEDLANDER, J., and KIRSCH, J., concur.
OPINION BY: ROBB
OPINION
[*934] OPINION – FOR PUBLICATION
ROBB, Judge
Case Summary and Issue
Teresa Perry appeals the trial court’s entry of summary judgment in favor of Whitley County 4-H Clubs, Inc. (the “4-H Club”) on Perry’s negligence complaint for personal injuries suffered during a horse competition sponsored by the 4-H Club. For our review, Perry raises two issues, which we consolidate and restate as whether the trial court properly granted summary judgment based on the Indiana Equine Activity Statute. Concluding there is no genuine issue of material fact and the Equine Activity Statute bars Perry’s claim for injuries resulting from inherent risks of equine activities, we affirm.
Facts and Procedural History
The undisputed facts and those most favorable to Perry as the non-movant are as follows. At all relevant times, Perry, an adult, was a member of the 4-H Clubs Equine Advisory [**2] Board, which provides guidance and instruction to children participating in the 4-H Club’s horse events, and was herself a regular participant in those [*935] events. Perry was also the owner of seven horses. In July 2007, the 4-H Club held horse practices and competitions at the Whitley County Fairgrounds as part of the Whitley County Fair. These events were generally held in the 4-H Club’s Horse Barn, but one event, the Large Animal Round Robin Competition, was held in the 4-H Club’s Show Barn, located next to the Horse Barn. The Horse Barn is over 100 feet wide but the Show Barn is approximately thirty-six feet wide along its shorter side. Horses were generally familiar with the Horse Barn but unfamiliar with the Show Barn, where they were “not allowed any other time” besides the Round Robin Competition. Appellant’s Appendix at 88. At all entrances to the Horse Barn, the 4-H Club had posted “Equine Activity warning signs” that were “clearly visible.” Id. at 18-19 (affidavit of Bill Leeuw, 4-H Club’s President of the Board).
On July 25, 2007, the Round Robin Competition was held. The Equine Advisory Board and volunteers selected the horses to be shown, and Perry herself selected one of those [**3] horses “at the last minute.” Id. at 93. Perry was present at the Round Robin Competition as an Equine Advisory Board member responsible for the safety of children handling the horses. As part of the event, seven horses were led from the Horse Barn into the Show Barn and lined up approximately two and one-half feet apart along the shorter side of the Show Barn. The horses were then turned over to children who did not normally handle horses but had experience handling animals such as pigs and cows and had received brief instruction on how to handle a horse. After one of the children finished leading a horse through a series of maneuvers, the child left the horse facing away from the center of the Show Barn, in the opposite direction from the neighboring horses and with its rear next to the head of a neighboring horse. The horse facing backwards began sniffing the rear of the neighboring horse, which pinned its ears against its head as a sign it was agitated. Perry realized this situation posed a danger to the child handling the horse facing backwards. Perry therefore approached the child and told the child to turn the horse around. As the child was doing so, the neighboring horse kicked [**4] Perry in the knee. Perry was thrown back and suffered personal injuries.
In September 2008, Perry filed a complaint against the 4-H Club alleging her injuries were caused by the 4-H Club’s negligence in “allowing horse activities to be conducted on premises unsuitable for such activities.” Id. at 6. As specifically argued by Perry at the summary judgment hearing, she alleged the 4-H Club was negligent in deciding to hold the Round Robin Competition in the Show Barn instead of the Horse Barn, as the smaller Show Barn “requires horses to be placed close together, increasing the chances that a child near the horse will be injured by one. It’s also an environment the horses aren’t familiar with, which makes it more likely that a horse will get spooked and kick someone.” Transcript at 4. Among the 4-H Club’s affirmative defenses, it alleged in its answer that Perry’s claim was barred by the Indiana Equine Activity Statute.
The 4-H Club filed a motion for summary judgment based in part on the Equine Activity Statute. Following a hearing, the trial court on January 27, 2010, issued its order granting summary judgment to the 4-H Club. The trial court found and concluded in relevant part:
14. [**5] The [4-H Club] was a sponsor of an equine activity when the accident occurred.
15. [Perry] was a participant in the equine activity in her capacity as a safe [*936] keeper when she approached the horses and was kicked.
16. The Equine Activities Act . . . is applicable to this case.
17. Being kicked by a horse is an inherent risk of equine activity.
18. There is no evidence in the designation of material facts that [the 4-H Club] committed an act or omission which constituted a reckless disregard for the safety of [Perry] or that any other conditions set in [Indiana Code section] 34-31-5-2 existed at the time of the accident.
Appellant’s App. at 5. Perry now appeals.
Discussion and Decision
I. Standard of Review
[HN1] We review a summary judgment order de novo. Tri-Etch, Inc. v. Cincinnati Ins. Co., 909 N.E.2d 997, 1001 (Ind. 2009). In so doing, we stand in the same position as the trial court and must determine whether the designated evidence shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind. 2009). In making this determination, we construe [**6] the evidence in a light most favorable to the non-moving party and resolve all doubts as to the existence of a genuine factual issue against the moving party. N. Ind. Pub. Serv. Co. v. Bloom, 847 N.E.2d 175, 180 (Ind. 2006). Our review of a summary judgment motion is limited to those materials designated by the parties to the trial court. Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind. 2001). The movant has the initial burden of proving the absence of a genuine factual dispute as to an outcome-determinative issue and only then must the non-movant come forward with evidence demonstrating genuine factual issues that should be resolved at trial. Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994).
Because this case turns on the proper application of the Equine Activity Statute, we also recite our well-established standard of review for interpretation of statutes:
[HN2] When courts set out to construe a statute, the goal is to determine and give effect to the intent of the legislature. The first place courts look for evidence is the language of the statute itself, and courts strive to give the words their plain and ordinary meaning. [**7] We examine the statute as a whole and try to avoid excessive reliance on a strict literal meaning or the selective reading of individual words. We presume the legislature intended the language used in the statute to be applied logically, consistent with the statute’s underlying policy and goals, and not in a manner that would bring about an unjust or absurd result.
Cooper Indus., LLC v. City of South Bend, 899 N.E.2d 1274, 1283 (Ind. 2009) (citations omitted).
II. Equine Activity Statute
A. Warning Signs
Perry argues the trial court erred in granting summary judgment because there is a genuine issue of fact as to whether the 4-H Club complied with the warning sign requirements of the Equine Activity Statute. We address this sub-issue first because it bears on the threshold applicability of the Equine Activity Statute as a bar to Perry’s claim. See Ind. Code § 34-31-5-3(a) (providing [HN3] “[t]his chapter does not apply unless” equine activity sponsor has posted at least one complaint warning sign). In response to Perry’s argument, the 4-H Club initially [*937] contends Perry waived the argument by not raising it to the trial court prior to the summary judgment hearing. We disagree. In general, arguments [**8] by an appellant are waived if not presented to the trial court on summary judgment, see Cook v. Ford Motor Co., 913 N.E.2d 311, 322 n.5 (Ind. Ct. App. 2009), trans. denied, and summary judgment may not be reversed on the grounds of a genuine factual issue “unless the material fact and the evidence relevant thereto shall have been specifically designated to the trial court,” T.R. 56(H). However, Perry did argue at the summary judgment hearing that the evidence designated by the 4-H Club was insufficient to establish its compliance with the warning sign requirements of the Equine Activity Statute. Moreover, this issue was already before the trial court based upon the 4-H Club’s motion for summary judgment and designation of material facts.
Proceeding to Perry’s claim, [HN4] the Equine Activity Statute provides that an equine activity sponsor, as a condition precedent to immunity under the statute, must post and maintain a warning sign in at least one location “on the grounds or in the building that is the site of an equine activity.” Ind. Code § 34-31-5-3(a)I. The sign “must be placed in a clearly visible location in proximity to the equine activity,” and the warning must be printed in black [**9] letters at least one inch in height. Ind. Code § 34-31-5-3(b), (c). The warning must state: “Under Indiana law, an equine professional is not liable for an injury to, or the death of, a participant in equine activities resulting from the inherent risks of equine activities.” Ind. Code § 34-31-5-5.
The undisputed evidence is that the 4-H Club, on the day of the incident, maintained “Equine Activity warning signs” on all entrances to the Horse Barn, and the signs were “clearly visible.” Appellant’s App. at 18-19. The 4-H Club’s equine activities were regularly held inside the Horse Barn, except for the Round Robin Competition held in the Show Barn located next to the Horse Barn. Perry acknowledged in her deposition she had seen “those signs” on the Horse Barn, id. at 114, and did not designate any evidence the signs were absent on the day of the incident or lacked the specific warning required by Indiana Code section 34-31-5-5. Perry argues, in effect, that because the only photographs the 4-H Club properly designated to the trial court do not directly show the signs contained the specific warning required, 1 the 4-H Club did not meet its burden of making a prima facie case of compliance [**10] with the statute. We decline Perry’s invitation to, in effect, interpret the Equine Activity Statute to require an equine activity sponsor to submit such photographic or documentary evidence in order to support its claim of immunity. Rather, we conclude the affidavit the 4-H Club properly designated established its prima facie case that it maintained proper warning signs, such that the burden shifted to Perry to come forward with evidence the signs were deficient. Because she did not do so, there is no genuine issue of fact as to the warning signs, and the trial court [*938] properly concluded the Equine Activity Statute applies to this case.
1 The parties dispute, and it is unclear from the record, whether a photograph identified as Defendant’s Exhibit A at Perry’s deposition, and allegedly included along with the deposition in the 4-H Club’s designation of evidence, was actually part of the designated material submitted to the trial court. That photograph, unlike those included as the 4-H Club’s Exhibit C in support of summary judgment and to which the 4-H Club referred at the summary judgment hearing, shows a warning sign containing the text specified in Indiana Code section 34-31-5-5.
B. [**11] Inherent Risk of Equine Activities
Perry also argues the trial court erred in granting summary judgment because there is a genuine issue of fact as to whether her injuries resulted from an inherent risk of equine activities. The Equine Activity Statute provides:
[HN5] Subject to section 2 of this chapter, an equine activity sponsor or equine professional is not liable for:
(1) an injury to a participant; or
(2) the death of a participant;
resulting from an inherent risk of equine activities.
Ind. Code § 34-31-5-1(a). 2 [HN6] The definition of “inherent risks of equine activities” is:
the dangers or conditions that are an integral part of equine activities, including the following:
(1) The propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around the equine.
(2) The unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals.
(3) Hazards such as surface and subsurface conditions.
(4) Collisions with other equines or objects.
(5) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the [**12] animal or not acting within the participant’s ability.
Ind. Code § 34-6-2-69. The Equine Activity Statute further provides:
[HN7] Section 1 of this chapter does not prevent or limit the liability of an equine activity sponsor . . .:
(1) who:
(A) provided equipment or tack that was faulty and that caused the injury; and
(B) knew or should have known that the equipment or tack was faulty;
(2) who provided the equine and failed to make reasonable and prudent efforts based on the participant’s representations of the participant’s ability to:
(A) determine the ability of the participant to engage safely in the equine activity; and
(B) determine the ability of the participant to safely manage the particular equine;
(3) who:
(A) was in lawful possession and control of the land or facilities on which the participant sustained injuries; and
(B) knew or should have known of the dangerous latent condition that caused the injuries;
if warning signs concerning the latent dangerous condition were not conspicuously posted on the land or in the facilities;
(4) who committed an act or omission that:
(A) constitutes reckless disregard for the safety of the participant; and
(B) caused the injury; or
[*939] (5) who intentionally [**13] injured the participant.
Ind. Code § 34-31-5-2(b). As Indiana’s Equine Activity Statute has not previously been interpreted in any reported case, 3 we will cite for their persuasive value the decisions of other jurisdictions that have interpreted similar statutes.
2 “Equine activity,” pursuant to its statutory definition, includes among other things “[e]quine shows, fairs, competitions, performances, or parades that involve equines.” Ind. Code § 34-6-2-41(a). “Equine activity sponsor” means “a person who sponsors, organizes, or provides facilities for an equine activity.” Ind. Code § 34-6-2-42. Perry does not dispute that the 4-H Club qualifies as an equine activity sponsor.
3 In Anderson v. Four Seasons Equestrian Center, Inc., 852 N.E.2d 576 (Ind. Ct. App. 2006), trans. denied, the only reported case citing the Equine Activity Statute, this court affirmed summary judgment for the defendant on the alternative grounds of waiver and release of liability. Id. at 585. We concluded the waiver applied because the plaintiff’s fall from a horse that moved while the plaintiff was attempting to mount it resulted from a risk “inherent in the nature of the activity of horse riding.” Id. at 584. However, [**14] we did not explicitly base that conclusion upon the text of the Equine Activity Statute.
Perry’s argument is that a reasonable trier of fact could find the cause of her injury was not an inherent risk of equine activities, but negligence of the 4-H Club in staging the Round Robin Competition. Perry makes no argument that any of the exceptions to immunity spelled out in Indiana Code section 34-31-5-2(b) (“Section 2(b)”) — faulty equipment or tack, provision of the equine and failure to make reasonable and prudent efforts to match the participant to the particular equine and equine activity, a latent premises defect, reckless disregard, or intentional injury — apply in this case. Therefore, we must examine whether and to what extent, consistent with the Equine Activity Statute, an equine activity sponsor may be liable for simple negligence allegedly causing injury to a participant.
Initially we note that negligence of an equine activity sponsor neither is one of the exceptions to immunity listed in Section 2(b), nor is it included in the non-exclusive list of inherent risks of equine activity under Indiana Code section 34-6-2-69. Thus, Indiana’s Equine Activity Statute, like equine activity [**15] statutes in some states but unlike some others, is silent on the place of sponsor negligence in the overall scheme of equine liability. Compare Lawson v. Dutch Heritage Farms, Inc., 502 F.Supp.2d 698, 700 (N.D. Ohio 2007) (noting Ohio’s Equine Activity Liability Act, like some other states?, is “silent as to simple negligence as an inherent risk”) (quotation omitted); with Beattie v. Mickalich, 486 Mich. 1060, 1060 784 N.W.2d 38, 2010 Mich. LEXIS 1452, 2010 WL 2756979, at *1 (Mich., July 13, 2010) (per curiam) (Michigan’s Equine Activity Liability Act abolishes strict liability for equines but expressly provides liability is not limited “‘if the . . . person . . . [c]ommits a negligent act or omission that constitutes a proximate cause of the injury?” (quoting Mich. Comp. Laws § 691.1665)). Because it is as important to recognize what a statute does not say as what it does say, City of Evansville v. Zirkelbach, 662 N.E.2d 651, 654 (Ind. Ct. App. 1996), trans. denied, and [HN8] statutes granting immunity, being in derogation of the common law, are strictly construed, see Mullin v. Municipal City of South Bend, 639 N.E.2d 278, 281 (Ind. 1994), we conclude the Equine Activity Statute was not intended by the general assembly [**16] to abrogate the cause of action for common-law negligence of an equine activity sponsor. However, pursuant to the clear text of the statute, a negligence action is precluded if the injury resulted from an inherent risk of equine activities and the facts do not fit one of the exceptions to immunity provided by Section 2(b). Stated differently, if none of the Section 2(b) exceptions apply, then an equine activity sponsor is not liable for failing to use reasonable care to mitigate an already inherent risk of equine activities that ultimately resulted in a participant’s injury.
[*940] Turning to Perry’s claim, she was injured when unexpectedly kicked by a horse that became agitated during the 4-H Club’s Round Robin Competition. The horse became agitated because another horse was standing too close nearby and began sniffing its rear, and to remove the danger to the child handling the other horse, Perry intervened. The statutory definition of “inherent risks of equine activities” includes, without limitation, “[t]he unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals,” and “[t]he propensity of an equine to behave in ways [**17] that may result in injury, harm, or death to persons on or around the equine.” Ind. Code § 34-6-2-69. Such risks directly caused Perry’s injury, in that the horse kicked as part of an unpredictable reaction to the other horse nearby and, Perry alleges, the close quarters and unfamiliar environment of the Show Barn. See Kangas v. Perry, 2000 WI App 234, 239 Wis.2d 392, 620 N.W.2d 429, 433 (Wis. Ct. App. 2000) (based on Wisconsin’s similar definition of inherent risks, concluding “horses? propensity to move without warning is an inherent risk of equine activity contemplated by the statute”), review denied. We therefore conclude Perry’s injury resulted from inherent risks of equine activities within the meaning of the Equine Activity Statute.
Perry argues the likelihood of a horse becoming agitated and kicking, and a child becoming endangered and needing to be rescued by a supervisor such as Perry, were unreasonably increased by the 4-H Club’s decision to hold the Round Robin Competition in the Show Barn, a cramped space unfamiliar to the horses. Even if that is true, however, the 4-H Club’s conduct would have contributed to Perry’s injury only by heightening the already inherent risk that a horse might [**18] behave unpredictably and in an injury-causing manner. Thus, Perry’s argument that her injury resulted not from an inherent risk of equine activities, but from the 4-H Club’s negligence in its manner of staging the Round Robin Competition, amounts to hair splitting irrelevant to the Equine Activity Statute. As explained above, the statute does not require that an equine activity sponsor’s alleged negligence in no way contribute to the injury complained of. Rather, the Equine Activity Statute only requires that, in order for immunity to apply, the injury must have resulted from broad categories of risk deemed integral to equine activities, regardless of whether the sponsor was negligent. See Ind. Code §§ 34-6-2-69; 34-31-5-1.
Perry also relies on cases from other jurisdictions that, while involving similar statutes, are distinguishable on their facts. In Steeg v. Baskin Family Camps, Inc., 124 S.W.3d 633 (Tex. App. 2003), review dismissed, the court held summary judgment for the defendant improper where there was evidence the proximate causes of the rider’s fall included the saddle slipping and the defendant’s negligent failure to secure the saddle. Id. at 639-40. In Fielder v. Academy Riding Stables, 49 P.3d 349 (Colo. Ct. App. 2002), [**19] cert. denied, the court held the defendant was not entitled to immunity where the defendant’s wranglers negligently failed to remove a screaming child from a horse, an “obvious danger” the wranglers had notice of well before the horse bolted. Id. at 351-52. Here, by contrast, there is no evidence the 4-H Club ignored an obvious, imminent danger or that Perry’s injury directly resulted from anything other than unpredictable horse behavior.
In sum, the facts viewed most favorably to Perry as the party opposing summary judgment show her injury resulted from inherent risks of equine activities and the 4-H Club was negligent, if at all, only for [*941] failing to mitigate those inherent risks. Therefore, the trial court properly concluded the Equine Activity Statute bars Perry’s claim and properly granted summary judgment to the 4-H Club.
Conclusion
There are no genuine issues of material fact that the 4-H Club complied with the warning sign requirements of the Equine Activity Statute and that Perry’s injury resulted from inherent risks of equine activities. Therefore, Perry’s claim is barred by the Equine Activity Statute and the trial court properly granted summary judgment to the 4-H Club.
Affirmed.
FRIEDLANDER, [**20] J., and KIRSCH, J., concur.
Recreation Law 