Markovitz v. Cassenti, 56 N.E.3d 894, 90 Mass.App.Ct. 1102 (2016)

Markovitz 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].

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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.

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