Opinion
2003-I60 K C.
Decided February 5, 2004.
Appeal by plaintiffs from an order of the Civil Court, Kings County (P. Sweeney, J.), entered December 16, 2002, denying their motion to vacate their default in failing to appear for trial thereby rendering academic defendants' cross-motions for summary judgment.
Order unanimously reversed without costs, plaintiffs' motion to vacate their default and restore the action to the trial calendar granted and defendants' cross motions for summary judgment denied.
PRESENT: ARONIN, J.P., PATTERSON and RIOS, JJ.
For the reasons set forth below, we find that plaintiffs' motion to vacate their default should have been granted, as they demonstrated excusable default and a meritorious cause of action. Furthermore, the defendants' cross motions for summary judgment should be denied, as defendants' evidence did not establish as a matter of law their contention that the doctrine of primary assumption of the risk should bar this action ( see Winegrad v. New York Univ. Med. Center, 64 NY2d 851).
"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" ( Morcian v. State of New York, 90 NY2d 471, 484 [19971; see generally Turcotte v. Fell, 68 NY2d 432), including, in the case of horseback riding (the activity in which the injured plaintiff was engaged at the time of her accident), the consequences of dealing with a powerful and unpredictable living creature, as the court below noted ( see e.g. Norkus v. Scolaro, 267 AD2d 666; Becker v. Pleasant Valley Farms, 261 AD2d 427). A participant in such an activity does not assume risks that are unreasonably increased ( Morgan, 90 NY2d at 485; Millan v. Brown, 295 AD2d 409), or that are not inherent in the nature of the sport involved ( see e.g. Clark v. State of New York, 245 AD2d 413).
While there is evidence in the record that plaintiff Christine Morgan interpreted the behavior of the horse she was riding at the time of her accident as indicating that he was excited or energetic, there is no evidence on which to conclude that she had the knowledge and experience required to properly evaluate and consent to the resulting risk ( see Maddox v. City of New York, 66 NY2d 270, 278; Morella v. Fletcher Farm, 288 AD2d 447; cf. Wendt v. Jacus, 288 AD2d 889). Christine testified at her deposition that she asked the advice of her instructor, defendant Bridget Imparato about the horse's behavior both upon her arrival at the arena and after a prior fall during her lesson. On both occasions, lmparato indicated that this was not a matter for concern. In the circumstances testified to by the parties, there are issues as to whether this 13-year-old child was in a position to refuse to consent to risks in the face of instructions from a responsible and experienced adult ( see e.g. Benitez v. New York City Bd. of Ed., 73 NY2d 650, 658-659); whether Imparato's instructions and comments constituted enough of an "assurance of safety" to vitiate any possible assumption of the risk of injury through the horse's subsequent behavior ( Verduce v. Bd. of Higher Ed. in the City of New York, 9 AD2d 214, 216 [Rabin, J., dissenting], revd on dissent below, 8 NY2d 928); and whether, in light of the propensities the horse showed on the day of the accident and Imparato's knowledge of Christine's difficulties maintaining a proper seat on a horse, there was inadequate supervision of Christine's lesson ( see Havens v. Kling, 277 AD2d 1017).
We do not pass upon the issue of the admissibility of the alleged statement by a third party that the horse was wearing the wrong bridle at the time of the accident. This question is properly left to the trial court for resolution when and if the statement is offered.