Opinion
No. 2021-02651 Index No. 52752/18
03-13-2024
Nancy Anthony, appellant, v. Amber Firehock, et al., respondents.
Rutberg Breslow Personal Injury Law (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Paul H. Seidenstock], of counsel), for appellant. MacVean, Lewis, Sherwin & McDermott, P.C., Middletown, NY (Jeffrey D. Sherwin and Nicholas J. Berwick of counsel), for respondents.
Rutberg Breslow Personal Injury Law (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Paul H. Seidenstock], of counsel), for appellant.
MacVean, Lewis, Sherwin & McDermott, P.C., Middletown, NY (Jeffrey D. Sherwin and Nicholas J. Berwick of counsel), for respondents.
MARK C. DILLON, J.P. CHERYL E. CHAMBERS LARA J. GENOVESI LOURDES M. VENTURA, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Christi J. Acker, J.), dated March 26, 2021. The order, insofar as appealed from, granted that branch of the motion of the defendants Amber Firehock and Christine Firehock which was for summary judgment dismissing the amended complaint insofar as asserted against the defendant Amber Firehock.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff enrolled in horseback riding lessons to be provided by the defendant Amber Firehock. The plaintiff signed a release, which, in relevant part, stated that the plaintiff "understands[s] the potential dangers that [she] could incur in mounting, riding, [and] walking... said horse.... Understanding those risks I hereby release... Amber Firehock... from any liability whatsoever in the event of injury or damage of any nature (or perhaps even death) to me or anyone else caused by or incidental to my electing to mount and ride a horse." The release further stated, in part, that the plaintiff agreed to hold the defendant Amber Firehock harmless from liability relating to "injuries, death or property damage from: mounting; riding; dismounting; walking;... use of horse barn, paddock, trails or horse ring, in any capacity; falling off horse whether horse is bucking, flipping, spooked." The plaintiff testified that, during a trail ride with Amber Firehock, the plaintiff was riding a horse that started to gallop towards the stables; the plaintiff jumped off the horse and was injured.
The plaintiff commenced this personal injury action against Amber Firehock and the defendant Christine Firehock (hereinafter together the defendants), among others. The defendants moved for summary judgment dismissing the complaint insofar as asserted against them, contending, inter alia, that the plaintiff had executed a release and assumed the risk of injury. In an order dated March 26, 2021, the Supreme Court, inter alia, granted that branch of the motion which was for summary judgment dismissing the amended complaint insofar as asserted against Amber Firehock. The plaintiff appeals.
"The doctrine of primary assumption of the risk provides that 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" (Kirkland v Hall, 38 A.D.3d 497, 498 [internal quotation marks omitted]; see Morgan v State of New York, 90 N.Y.2d 471, 484). "The risks of falling from a horse or a horse acting in an unintended manner are inherent in the sport of horseback riding" (Fenty v Seven Meadows Farms, Inc., 108 A.D.3d 588, 588; see Kirkland v Hall, 38 A.D.3d at 498). Here, the defendant Amber Firehock established her prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff assumed the risks inherent in riding a horse, including falling when the horse acted in an unintended manner (see Kirkland v Hall, 38 A.D.3d at 498; Eslin v County of Suffolk, 18 A.D.3d 698, 699). While the primary assumption of risk doctrine does not serve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased (see Custodi v Town of Amherst, 20 N.Y.3d 83), in opposition, the plaintiff failed to raise a triable issue of fact as to such risks (see Trummer v Niewisch, 17 A.D.3d 349, 350).
"'A valid release constitutes a complete bar to an action on a claim which is the subject of the release'" (Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V., 17 N.Y.3d 269, 276, quoting Global Mins. & Metals Corp. v Holme, 35 A.D.3d 93, 98). "'Although a defendant has the initial burden of establishing that it has been released from any claims, a signed release 'shifts the burden of going forward... to the [plaintiff] to show that there has been fraud, duress or some other fact which will be sufficient to void the release'" (Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V., 17 N.Y.3d at 276, quoting Fleming v Ponziani, 24 N.Y.2d 105, 111). Here, the language of the release clearly and unequivocally expressed the intention of the parties to relieve the defendant of liability for personal injuries sustained by the plaintiff during horseback riding lessons (see Schwartz v Martin, 82 A.D.3d 1201, 1203; Thiele v Oakland Val., Inc., 72 A.D.3d 803, 803; Boateng v Motorcycle Safety Sch., Inc., 51 A.D.3d 702, 703; Lemoine v Cornell Univ., 2 A.D.3d 1017, 1020). Moreover, the release is clear in reciting that the plaintiff was aware of and assumed the risks associated with participating in horseback riding lessons (see Sjogren v Board of Trustees of Dutchess Community Coll., 216 A.D.3d 836, 837-838; Boateng v Motorcycle Safety Sch., Inc., 51 A.D.3d at 703-704).
In opposition, the plaintiff failed to raise a triable issue of fact regarding whether the release was void, unenforceable, or barred by General Obligations Law § 5-326 (see Lago v Krollage, 78 N.Y.2d 95; Jones v Smoke Tree Farm, 161 A.D.3d 1590, 1591; Lemoine v Cornell Univ., 2 A.D.3d at 1018; Millan v Brown, 295 A.D.2d 409, 411).
Accordingly, we affirm the order insofar as appealed from.
DILLON, J.P., CHAMBERS, GENOVESI and VENTURA, JJ., concur.