Opinion
2012-01-19
Robin SOLOMAN, Appellant, v. Barbara TAYLOR et al., Respondents.
Leonard & Cummings, L.L.P., Binghamton (Hugh B. Leonard of counsel), for appellant. Costello, Cooney & Fearon, P.L.L.C., Syracuse (James Gascon of counsel), for respondents.
Leonard & Cummings, L.L.P., Binghamton (Hugh B. Leonard of counsel), for appellant. Costello, Cooney & Fearon, P.L.L.C., Syracuse (James Gascon of counsel), for respondents.
Before: MERCURE, Acting P.J., LAHTINEN, SPAIN, MALONE JR. and KAVANAGH, JJ.
LAHTINEN, J.
Appeal from an order of the Supreme Court (Cerio, J.), entered November 5, 2010 in Madison County, which granted defendants' motion for, among other things, summary judgment dismissing the complaint.
In the summer of 2008, plaintiff and another individual were riding their horses on defendants' property when two dogs belonging to defendant Barbara Taylor startled the horses. Plaintiff's horse twisted, causing her to fall and sustain injuries. She commenced this action alleging, among other things, that defendants were negligent in permitting dogs to run free on property where horseback riding occurred. Following disclosure, defendants moved for summary judgment dismissing the action upon the ground that plaintiff's mishap was an assumed risk of recreational horseback riding. Supreme Court granted defendants' motion. Plaintiff appeals.
“As a general rule, participants in a sporting event or activity may be held to have consented to those injury-causing events which are known, apparent or reasonably foreseeable” ( Rubenstein v. Woodstock Riding Club, 208 A.D.2d 1160, 1160, 617 N.Y.S.2d 603 [1994] [citation omitted] ). “[A]n inherent risk in sporting events involving horses is injury due to the sudden and unintended actions of the animals, ... [including] being thrown or falling” ( Tilson v. Russo, 30 A.D.3d 856, 857, 818 N.Y.S.2d 311 [2006] [internal quotation marks and citations omitted] ). “The experience of the participant certainly is relevant in deciding whether he or she appreciated and, thus, voluntarily assumed the risks of the activity” ( Dalton v. Adirondack Saddle Tours, Inc., 40 A.D.3d 1169, 1171, 836 N.Y.S.2d 303 [2007] [citation omitted] ).
Plaintiff had horseback riding experience as a child and she started riding again in the fall of 2007. She purchased a horse, which she boarded at defendants' stable, and had taken riding lessons from Taylor one to three times per week from September 2007 through the spring of 2008. Her lessons included situations purposefully intended to “shy or spook” the horse, which were known risks in riding, and how to handle such situations. Plaintiff acknowledged several prior occasions where her horse shied while she was riding, including one instance involving dogs. She knew that three dogs were housed at defendants' premises and was aware that Taylor liked to have the dogs with her when she rode. Plaintiff had previously ridden while the dogs were running free. She stated that she had complained about the dogs and told Taylor that she did not like the dogs running free when she was riding. On the day of the incident, plaintiff was informed by Taylor's boyfriend before going out riding that Taylor was probably already out riding and, while no mention was made of the dogs, she had not heard or observed them in the vicinity of the stable. We are unpersuaded that Supreme Court erred in finding that plaintiff assumed the risk under these circumstances ( see Wendt v. Jacus, 288 A.D.2d 889, 890, 732 N.Y.S.2d 770 [2001], lv. denied 98 N.Y.2d 604, 746 N.Y.S.2d 278, 773 N.E.2d 1016 [2002] ).
Plaintiff's further assertion of a strict liability theory based upon purported vicious propensities is unavailing ( see Tilson v. Russo, 30 A.D.3d at 859, 818 N.Y.S.2d 311).
ORDERED that the order is affirmed, with costs.