Poorly written release in Massachusetts stop lawsuit for falling off a horse during riding lessons.

Release 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.

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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].

———

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.

———


Massachusetts Equine Liability Act

GENERAL LAWS OF MASSACHUSETTS

Part I. ADMINISTRATION OF THE GOVERNMENT

Title XIX. AGRICULTURE AND CONSERVATION

Chapter 128. AGRICULTURE

§ 128:2D. Liability of equine professionals and equine activity sponsors

(a)    For the purposes of this section, the following words shall have the following meanings:

“Engage in an equine activity”, riding, training, assisting in veterinary treatment of, driving, or being a passenger upon an equine, whether mounted or unmounted, visiting or touring or utilizing an equine facility as part of an organized event or activity, or assisting a participant or show management. The term “engage in an equine activity” shall not include being a spectator at an equine activity, except in cases where the spectator places himself in an unauthorized area or in immediate proximity to the equine activity.

“Equine”, a horse, pony, mule, or donkey.

“Equine activity”

(1)    equine shows, fairs, competitions, performances, or parades that involve any or all breeds of equines and any of the equine disciplines, including, but not limited to, dressage, hunter and jumper horse shows, grand prix jumping, three-day events, combined training, rodeos, riding, driving, pulling, cutting, polo, steeplechasing, English and western performance riding, endurance trail riding, gymkhana games, and hunting;

(2)    equine training or teaching activities or both;

(3)    boarding equines; including normal daily care thereof;

(4)    riding, inspecting, or evaluating by a purchaser or an agent an equine belonging to another, whether or not the owner has received some monetary consideration or other thing of value for the use of the equine or is permitting a prospective purchaser of the equine to ride, inspect, or evaluate the equine;

(5)    rides, trips, hunts or other equine activities of any type however informal or impromptu that are sponsored by an equine activity sponsor;

(6)    placing or replacing horseshoes or hoof trimming on an equine; and

(7)    providing or assisting in veterinary treatment.

“Equine activity sponsor”, an individual, group, club, partnership, or corporation, whether or not the sponsor is operating for profit or nonprofit, which sponsors, organizes, or provides the facilities for, an equine activity, including but not limited to: pony clubs, 4-H clubs, hunt clubs, riding clubs, school and college-sponsored classes, programs and activities, therapeutic riding programs, stable and farm owners and operators, instructors, and promoters of equine facilities, including but not limited to farms, stables, clubhouses, pony ride strings, fairs, and arenas at which the activity is held.

“Equine professional”, a person engaged for compensation:

(1)    in instructing a participant or renting to a participant an equine for the purpose of riding, driving or being a passenger upon the equine;

(2)    in renting equipment or tack to a participant;

(3)    to provide daily care of horses boarded at an equine facility; or

(4)    to train an equine.

“Inherent risks of equine activities”, dangers or conditions which are an integral part of equine activities, including but not limited to:

(1)    The propensity of equines to behave in ways that may result in injury, harm, or death to persons on or around them;

(2)    the unpredictability of an equine’s reaction to such things as sounds, sudden movement, and unfamiliar objects, persons, or other animals;

(3)    certain 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 his ability.

“Participant”, any person, whether amateur or professional, who engages in an equine activity, whether or not a fee is paid to participate in such equine activity.

(b)    Except as provided in subsection (c), an equine activity sponsor, an equine professional, or any other person, which shall include a corporation or partnership, shall not be liable for an injury to or the death of a participant resulting from the inherent risks of equine activities and, except as provided in said subsection (c), no participant nor participant’s representative shall make any claim against, maintain an action against, or recover from an equine activity sponsor, an equine professional, or any other person for injury, loss, damage, or death of the participant resulting from any of the inherent risks of equine activities.

(c)    This section shall not apply to the racing meetings as defined by section one of chapter one hundred and twenty-eight A.

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)

(i)    provided the equipment or tack, and knew or should have known that the equipment or tack was faulty, and such equipment or tack was faulty to the extent that it did cause the injury; or

(ii)    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, and determine the ability of the participant to safely manage the particular equine based on the participant’s representations of his ability;

(2)    owns, leases, rents, has authorized use of, or is otherwise 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 to the equine activity sponsor, equine professional, or person and for which warning signs, pursuant to subsection (d), have not been conspicuously posted;

(3)    commits an act of omission that constitutes willful or wanton disregard for the safety of the participant, and that act of omission caused the injury; or

(4)    intentionally injures the participant.

(d)

(1)    Every equine professional shall post and maintain signs which contain the warning notice specified in paragraph (2). Such signs shall be placed in a clearly visible location in the proximity of the equine activity. The warning notice specified in said paragraph (2) shall appear on the sign in black letters, with each letter to be a minimum of one inch in height. Every written contract entered into by an equine professional for the providing of professional services, instruction, or the rental of equipment or tack or an equine to a participant, whether or not the contract involves equine activities on or off the location or site of the equine professional’s business, shall contain in clearly readable print the warning notice specified in said paragraph (2).

(2)    The signs and contracts described in paragraph (1) shall contain the following notice:

Under Massachusetts 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, pursuant to section 2D of chapter 128 of the General Laws.

Cite as Mass. Gen. Laws ch. 128, § 2D