Berlangieri v. Running Elk Corp.

• Decision Date: 09 April 2002
• Docket Number: No. 21,807.,21,807.
• Citation: 132 N.M. 332,2002 NMCA 60,48 P.3d 70
• Court: Court of Appeals of New Mexico
• Parties: Nicholas J. BERLANGIERI and Carol Berlangieri, Plaintiffs-Appellants, v. RUNNING ELK CORPORATION; Second Running Elk Corporation, d/b/a The Lodge at Chama, Defendants-Appellees.

48 P.3d 70

132 N.M. 332

2002 NMCA 60

Nicholas J. BERLANGIERI and Carol Berlangieri, Plaintiffs-Appellants, v. RUNNING ELK CORPORATION; Second Running Elk Corporation, d/b/a The Lodge at Chama, Defendants-Appellees.

No. 21,807.

Court of Appeals of New Mexico.

April 9, 2002.

Certiorari Granted May 20, 2002.

John R. Tiwald, Clara Ann Bowler, Albuquerque, NM, for Appellants.

Emily A. Franke, Michael P. Clemens, J. Duke Thornton, Butt, Thornton & Baehr, P.C., Wayne E. Bingham, Crider, Bingham & Hurst, P.C., Albuquerque, NM, for Appellees.

Certiorari Granted, No. 27,492, May 20, 2002.

OPINION

ALARID, Judge.

{1} This case requires us to decide whether New Mexico courts will enforce an exculpatory agreement purporting to relieve the commercial operator of a recreational premises from liability for failure to exercise ordinary care to protect its patrons from risks of serious physical injury. We conclude that such exculpatory agreements are unenforceable because commercial operators of recreational premises are subject to a non-disclaimable duty to exercise ordinary care to protect patrons from foreseeable risks of physical injury or death.

BACKGROUND

{2} Defendants operate The Lodge at Chama (hereafter The Lodge). The Lodge offers guests horseback riding expeditions as well as other recreational activities. On May 29, 1996, Plaintiff, Nicholas Berlangieri, and other employees of Honeywell Corporation were guests at The Lodge. Members of the group of employees expressed an interest in a horseback riding expedition. A riding expedition was arranged for the afternoon of May 29, 1996.

{3} Prior to the riding expedition, Jeri Simms, The Lodge's manager, spoke with each participant, including Plaintiff, to determine the participant's experience and ability in horseback riding. Simms concluded that Plaintiff was a novice rider. Simms explained to each guest that due to the unpredictable nature of horses, horseback riding involves certain unavoidable risks of injury. Simms gave each guest a copy of The Lodge's "Agreement for Release and Assumption of Risk" (hereafter the Release) and asked the guest to read and sign it. The Release stated:

I acknowledge that I have been informed of, and that I am otherwise aware of, the risks involved in fishing, horseback riding, hiking and shooting the sporting clays on the lands of the THE LODGE AT CHAMA. I hereby declare that I possess sufficient skills and experience in the above mentioned activities without causing injury to myself or other guests of THE LODGE AT CHAMA.

In consideration of being permitted to participate in the above mentioned activities and otherwise use the lands of THE LODGE AT CHAMA, I agree:

To use due care while engaging in the above mentioned activities on the lands of THE LODGE AT CHAMA, including, but not limited to, each and every risk resulting from negligent acts or omissions of any other person or persons, including employees and agents of THE LODGE AT CHAMA. I further agree to exculpate and relieve THE LODGE AT CHAMA and its employees, representatives and agents from all liability for any loss, damage, or injury, whether to person or property which I may suffer while engaging in activities and/or using the lands of THE LODGE AT CHAMA all whether or not resulting from the negligent act or omission of another person or persons.

{4} As each guest signed the Release, Simms asked the guest if he or she understood the terms of the agreement. Each guest, including Plaintiff, stated that he understood. Although Plaintiff has no recollection of signing a Release, he does not dispute that his signature appears on an executed Release.

{5} In view of the inexperience of the Honeywell group, The Lodge selected gentle, easygoing horses for the trail ride. Plaintiff's horse was saddled prior to the trail ride by an experienced employee of The Lodge. This employee testified that the saddle, tack, and equipment he put on Plaintiff's horse were in good, serviceable condition and were properly positioned on the horse.

{6} During the trail ride, another guest observed Plaintiff's horse "constantly wanting to move to the head of the group and to move faster than the other horses in the group." The trail ride otherwise proceeded without incident. At the end of the ride, as the group approached the stable, Plaintiff's horse began to gallop. One eyewitness recalled that Plaintiff appeared to rotate to the right around the horse's body, "as if he was the hand of a clock moving around the center point." According to this witness, Plaintiff fell to the right side of the horse, his head and shoulder hitting the ground first. In the words of another witness: "It appeared to be a slow fall to the right, with [Plaintiff's] body continually facing forward. He remained upright in the sense that his back remained approximately straight." These two witnesses stated that Plaintiff's fall was consistent with the saddle sliding, but neither witness recalled actually observing the saddle shift. One member of the party recalled that approximately two minutes after the fall, Plaintiff's horse did not have a saddle. However, the employee who saddled Plaintiff's horse, and who led the trail ride, recalled that after the fall, "[t]he saddle and tack were properly positioned and in good serviceable condition" and that he removed the saddle from Plaintiff's horse after assisting Plaintiff. Gay Davenport, an experienced horse trainer and riding instructor, provided an expert opinion as to the cause of the fall. Based on the eyewitness reports of the fall, Davenport concluded that "the saddle was not properly positioned and/or the cinch was not properly tightened; or this equipment failed, causing the saddle to slide sideways off the top of the horse."

{7} Plaintiff filed a "Complaint for Personal Injury Damages" alleging that Plaintiff had suffered severe injuries, including brain injury. Plaintiff alleged that his injuries were the result of Defendants' "negligence, carelessness, and recklessness." Plaintiff alleged his injuries were caused by the following acts and omissions on the part of Defendants and their employees:

A. Failure to properly install the saddle and related equipment on the horse which [Plaintiff] was riding; and/or

B. Providing saddle, equipment, or tack which defendants and their employees knew or should have known was faulty or was improperly installed.

Plaintiff alleged that he had "incurred medical bills of several hundred thousand dollars" as well as lost income "in excess of $450,000."

{8} Defendants moved for summary judgment arguing that they were not liable for Plaintiff's injuries because they were exculpated by the Release and because Plaintiff's injuries were the result of "equine activities," which under the Equine Liability Act, NMSA 1978, §§ 42-13-1 to -5 (1993, as amended through 1995) could not be the basis of liability. Plaintiff argued in response that (1) the Equine Liability Act does not bar liability for personal injuries caused by faulty tack, and (2) enforcement of the Release would violate public policy as expressed in the Equine Liability Act.

{9} The district court granted summary judgment in favor of Defendants. As to the Equine Liability Act, the district court found that "Plaintiffs have presented sufficient evidence from which a reasonable person could infer that the proximate cause of Berlangieri's fall and consequent injury was the Defendants' negligence in improperly saddling his horse, causing it to come loose and slip." The district court reasoned that:

The Plaintiffs' allegations are that the saddle and cinch on Berlangieri's horse were improperly installed, conduct which cannot reasonably be comprehended by the phrase "equine behavior." At best, Defendant[s] can establish that Berlangieri's fall occurred while he was riding a horse. In my view, there is no disputed question of fact that Berlangieri's injuries did not occur as a result of equine behavior even though they may have occurred during equine behavior. Thus, under the specific language of the Equine Liability Act, the Act offers no shelter for the Defendants.

{10} Turning to the Release, the district court, citing Albuquerque Tire Co. v. Mountain States Tel. & Tel. Co., 102 N.M. 445, 697 P.2d 128 (1985), observed that "New Mexico consistently enforces signed waivers of liability in the same form as the one Berlangieri signed in this case." The district court noted, and rejected, Plaintiff's argument that enforcement of the Release would violate the public policy of New Mexico as expressed in the Equine Liability Act. The district court concluded that "no overriding public policy exists sufficient to invoke the exception to the general rule that contractual agreements which shift the risk of injury are valid and enforceable in this state."

DISCUSSION

1. The Release

{11} We agree with the following statements regarding the relationship of public policy to freedom of contract:

Whether a contract is against public policy is a question of law for the court to determine from all the circumstances of each case. It is clearly to the interest of the public that persons should not be unnecessarily restricted in their freedom to make their own contracts, and agreements therefore are not to be held void as being contrary to public policy, unless they are clearly contrary to what the legislature or judicial decision has declared to be the public policy, or they manifestly tend to injure the public in some way. On the other hand the interests of the public do require that there shall be some restrictions on the freedom of persons to enter into contracts; and if an agreement binds a party to do or not to do anything, the doing or omission of which is manifestly injurious to the public interests, the courts must declare it contrary to public policy and therefore illegal and void.

IX Cyclopedia of Law and Procedure 483-85 (William Mack & Howard P. Nash eds.1903 (footnotes...