Did Patron Assume or Release Risk of Horseback Riding Injury?
Francine Harrison fell off a horse (called “Herman”) at Minieri’s Parkview Riding Center and was dragged with her foot caught in the stirrup, causing her various injuries including a broken femur. Specifically, Harrison claimed the horse was “rooting” (thrusting/pulling, his head down), and that she had received no instructions on how to respond to this dangerous behavior until the accident occurred. Litigation ensued.
Riding Center claimed that it was entitled to summary judgment dismissal because there was insufficient admissible evidence to establish an issue of fact concerning any negligence; Harrison’s execution of the riding instruction agreement and liability release was valid; the action must be dismissed based on the doctrine of primary/express assumption of risk and also based upon the doctrine of implied assumption of risk; and finally, because Harrison failed to establish proximate cause.
The core question as to how and why the incident occurred turned on the credibility of the witnesses–Harrison and the instructor/trainer, Alexander Dassler.
Dassler acknowledged that rooting was unsafe behavior and that if he saw that a horse was rooting (pulling sharply and abruptly on the reins to lower its head all the way to the ground), he would change the horse for the lesson; however, Dassler testified that he had never seen a horse engage in rooting behavior at the Riding Center, nor was Herman rooting at the time of the incident, or pulling his head down in any way, or attempting to come to the center of the ring. Dassler specifically testified that his “concept of having an issue with riding a horse that I would change a horse because of, is if somebody had major issues such as bucking, rearing, rooting, issues that were unsafe.”
Further, Dassler testified that “[t]he reason that this incident happened was because the rider that particular day [Harrison] failed to listen to instruction and acted out in an aggressive manner towards the horse which caused the horse to canter while she was unprepared and not listening which that is what caused her to fall off was the fact that she did it without following instruction and without being prepared because she changed what she was doing as per how she was instructed prior.”
Specifically according to Dassler, “[t]he rider did not use the crop as it was instructed to use or intended to use, she used it at a much higher severity and against instruction, which is why she fell off, because she was unprepared for the result of using the crop in that manner. The issue was not the horse, the issue was the rider.” He testified that Harrison did not follow instructions, and insisted that she was going to “do it her way.” He further stated that Harrison was not balanced in the saddle when the horse stepped off into the canter, “because she twisted her body to hit the horse on the hind end. If she had taken instruction correctly and tapped the horse on the shoulder, her center of gravity and her balance would have been centered at her core, which is how you ride.”
In direct contravention to Dassler’s testimony, Harrison testified that Herman the horse exhibited some rooting behavior at a riding lesson the week prior to the incident, while Dassler was administering instruction during that prior lesson. Harrison further testified that on the occasion of the riding lesson the week prior to the accident, Dassler did not stop the lesson, change horses, or give any guidance to her on how to deal with the rooting behavior. Harrison had never before been on a horse that rooted. Instead, Dassler put her on the same horse one week later, thereby causing her to fall off Herman when he again exhibited rooting behavior. Harrison further denied that she failed to heed any instructions, or that she insisted on doing it “her way.” She stated that she was told what to do to stop the rooting only moments before the incident occurred, but was unable to implement those instructions in time.
Harrison further testified that, on the day of the incident, she mounted an English style saddle on Herman, as she had the week before, but that she was wearing a Western style boot that slipped all the way through the stirrup, thereby causing her to be dragged. She testified that maybe if she was wearing English style boots her right foot would not have slipped forward and through the stirrup.
According to Harrison, Dassler never told her to wear a different type of boot for English style riding. On the other hand, Dassler testified that the reason that her foot went completely forward into the stirrup was “because she had her foot very deep in the stirrup instead of on the ball of the foot, her foot and that her toe went down, which is basic instruction, we constantly tell riders, which is one of the most basic things, if you keep your heels down toes up…your foot cannot go into the stirrup because the stirrup is on the ball of the foot.” He further testified that he gave Harrison those instructions before, during, and in every lesson.
In addition to that testimony that differed in material respects, the co-owner/operator of the Riding Center, Michelle Cordingley, who did not witness the incident, and was not a riding instructor, testified as to the general operation of the Riding Center and described the duties of the riding instructors as being “to meet and greet their clients, discuss the horse that we want for that lesson for that client, give an amazing riding lesson and keep the clients happy.” Cordingley did not have any written lesson books for the horse or Harrison, and she was doubtful that the instructors maintained any notes related to their customers’ progress. According to her, Dassler worked for them part-time and had done so for several years prior, including at Cordingley’s sister’s riding facility that closed. When her sister’s facility closed, Dassler came to the Riding Center. His full-time job was in a warehouse for a drink distributor, and he was paid in cash by the Riding Center. Although Cordingley testified that Herman the horse did not have any bad habits that she was aware of, she testified that she did not stand at the ring and watch lessons, and she had never ridden Herman. According to her testimony, her instructors “very rarely” rode the horses themselves. Cordingley also denied that she had seen any of her lesson horses engage in rooting behavior.
After the incident, Cordingley filled out an accident report while speaking with Dassler, but she did not speak with Harrison about the occurrence. Portions of the accident report were read into the record at deposition: “Before she fell she was not listening to trainer and insisting on trying it her way is what she said;” “She was told to hold the crop, not to use it at all, several times and to shorten her reins several times. She did not listen;” “several times told not to tap the horse with the crop but did it anyway.” Those latter sentences concerning use of the crop seemed to contradict Dassler’s testimony that he told Harrison to tap Herman on the shoulder with the crop.
The magnitude of the contradictory testimony presented with respect to material issues of fact precluded finding that the Riding Center had established its prima facie entitlement to summary judgment as a matter of law as to its alleged negligence. Likewise, the existing questions of fact as to the Riding Center’s negligence necessarily precluded a determination by the Court that the Center did not proximately cause Harrison to fall from the horse.
The Riding Center further asserted that it was entitled to summary judgment dismissal of the complaint because Harrison assumed the risks of horseback riding, which included the risk of falling from a horse, being thrown from a horse, or a horse acting in an unintended manner.
CPLR § 1411 provides in pertinent part that, “[i]n any action to recover damages for personal injury…the culpable conduct attributable to the claimant…including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant…bears to the culpable conduct which caused the damages.”
Despite enactment of CPLR § 1411, Courts have held that a limited vestige of the assumption of the risk doctrine—referred to as `primary’ assumption of the risk—survived the enactment of Section 1411 as a defense to tort recovery in cases involving certain types of athletic or recreational activities. And have generally restricted the concept of assumption of the risk to particular athletic and recreative activities in recognition that such pursuits have ‘enormous social value’ even while they may involve significantly heightened risks. So the continued application of the doctrine facilitates free and vigorous participation in athletic activities and fosters those socially beneficial activities by shielding coparticipants, activity sponsors or venue owners from potentially crushing liability. Consistent with that justification cases have applied the doctrine to a sporting event or recreative activity that was sponsored or otherwise supported by the defendant, or occurred in a designated athletic or recreational venue.
With regard to primary assumption of the risk, risks in this category are incidental to a relationship of free association between the defendant and the plaintiff in the sense that either party is perfectly free to engage in the activity or not as he wishes. Defendant’s duty under such circumstances is a duty to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty. By engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. Relatedly, risks which are commonly encountered or inherent in a sport, such as being struck by a ball or bat in baseball, are risks for which various participants are legally deemed to have accepted personal responsibility.
On the other hand, an important counterweight to an undue interposition of the assumption of risk doctrine is that participants will not be deemed to have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risks. The applicable standard includes whether the conditions caused by the defendant’s negligence were unique and created a dangerous condition over and above the usual dangers that are inherent in the sport.
A key criteria for the application of the primary assumption of risk doctrine is the plaintiff’s awareness of the risk of harm, and that awareness is to be assessed against his skill, background and experience with the activity .
Here, it was apparently undisputed that, on the date of her fall from Herman, it was only Harrison’s second time riding that horse, with an English style saddle/stirrups. According to Harrison, the Riding Center assigned Herman to her; and she did not request to ride Herman. Dassler characterized Harrison alternately as a “beginner or advanced beginner” and as an “intermediate” rider. And Cordingley testified that Herman was a horse appropriate for beginners, and her knowledge of the Harrison’s riding abilities led her to classify Harrison as “still beginning,” but not a “novice rider.”
Most salient was the divergent testimony about whether Herman displayed rooting behavior prior to the date of Harrison’s fall. Dassler acknowledged that rooting was unsafe behavior and that he would change the horse if he observed that behavior, but he also stated that he never saw any horses at the Riding Center engage in rooting, including Herman. In contrast, Harrison testified that Herman engaged in rooting behavior the week prior to the incident, and she was not provided any instruction by Dassler as to how to deal with that behavior.
So, apart from the inherent risks involved in horseback riding, it was conceded by the Riding Center that rooting behavior was dangerous enough to justify changing a rider’s horse; therefore, if that behavior manifested itself in the same horse, with the same rider, prior to an incident causing injury to that rider, it would not necessarily constitute a horse acting suddenly in an unintended manner; however, that was a determination that only the trier of fact could make. Accordingly, there existed a triable question of fact as to whether the Riding Center exposed Harrison to an unreasonably increased risk that she was riding a horse that was prone to rooting behavior, which was a risk that Harrison could not be deemed to have assumed.
The Riding Center’s sign-in sheet/waiver form was insufficient, as written, to release it from liability. The one sheet of paper pre-printed form, at the top had the following language:
Upon my acceptance of horse and equipment. I acknowledge that 1 assume full responsibility for my safety. I further understand that I ride at my own risk, I agree to hold that above entity, its officers, employees etc. harmless from every and all claim which may arise from injury, which might occur from said horse and/or equipment, in favor of myself, my heirs, representatives, or dependents. I understand that the stable does not represent or warrant the quality or character of the horse furnished.
Underneath that paragraph appeared lines for the names and addresses of the riders. Approximately twenty-eight (28) different names appeared on the signature/address lines, including one entry for Fran Harrison. The date appearing on the top of the form was written as “Sunday November 26, 2017.” But Harrison did not deny that she “signed in” on the day of her lesson, on that sheet, and then she put her helmet on and went outside the office to the stable. There was no evidence that Harrison signed any other type of purported waiver or release, aside from the sign-in sheet.
The Riding Center maintained that the purported waiver/release set forth in its sign-in sheet was enforceable and not void under New York General Obligations Law § 5-326 because that law related solely to and voids releases by recreational facilities and was not applicable to cases where, as here, the purpose of Harrison’s horseback riding was instructional. And further contended that the purported waiver/release specifically referenced a release of liability from any claimed ordinary negligence by the Riding Center and there was no evidence of gross negligence.
The Riding Center’s argument was misplaced and mistaken. Even accepting that, under the circumstances present, GOL § 5-326 did not apply because Harrison was there for instructional purposes rather than recreational purposes, the purported waiver/release was wholly insufficient to absolve the Riding Center from any liability for its own negligence.
The law’s reluctance to enforce exculpatory provisions led to the development of an exacting standard by which courts measure their validity. So, it has been repeatedly emphasized that unless the intention of the parties was expressed in unmistakable language, an exculpatory clause will not be deemed to insulate a party from liability for his own negligent acts. The language must appear plainly and precisely that the limitation of liability extended to the party seeking to shed its ordinary responsibility. Not only does that stringent standard require that the drafter of such an agreement make its terms unambiguous, but it mandates that the terms be understandable as well. Thus, a provision that would exempt its drafter from all liability occasioned by his fault should not compel resort to a magnifying glass and lexicon.
While the word “negligence” does not have to be written for courts to give effect to such exculpatory language, words conveying a similar import must appear. But general language releasing a party from any and all responsibility or liability of any kind, or waiving claims for any loss to personal property or for any personal injury, does not bar claims based on the negligence of the party sought to be released.
The waiver contained in the sign-in sheet purported to release the Riding Center, its “officers, employees, etc.” from “every and all claim (sic) which may arise from injury, which might occur from said horse and/or equipment…” (emphasis added). That was exactly the type of language that did not clearly convey that there was a release of liability regardless of who was at fault, and even if the injury/claim was caused by the fault of the party seeking to insulate itself.
The language here could be interpreted to have alerted Harrison to the dangers inherent in horseback riding, but it did not serve to make her aware of, much less accept, any enhanced risk of injury that was caused by the carelessness/negligence of the very party upon whom she depended for her safety during the lesson. There was simply no language that demonstrated any intention on the part of the Riding Center to exempt itself from liability for injury resulting from its failure to use reasonable care in its administration of the lesson.
There was a question of fact here to whether the Riding Center or Dassler was negligent, and whether Harrison was put to the unreasonably increased risk that she was riding a horse that was prone to unsafe rooting behavior. Agreements to release a party from any and all responsibility or liability of any nature whatsoever will not bar claims sounding in ordinary negligence. Thus, while the sign-in sheet waiver was enforceable to the extent that it insulated the Riding Center from liability for injuries resulting from Harrison’s fall from the horse caused by reasons other than the Riding Center’s negligence, Riding Center failed to establish prima facie that it was not negligent. Accordingly, the sign-in sheet waiver did not advance the Riding Center’s argument that summary judgment should be granted on that basis.