Bothell v. Two Point Acres, Inc.

• Citation: 192 Ariz. 313,965 P.2d 47
• Decision Date: 26 February 1998
• Docket Number: CA-CV,No. 2,2
• Parties: , 263 Ariz. Adv. Rep. 36 Ken BOTHELL and Bonita Bothell, individually and as parents and natural guardians of Akilah "Keely" Bothell, a minor, Plaintiffs/Appellants, v. TWO POINT ACRES, INC.; Rio Rico Stables; Mary Barret and John Doe Barret, wife and husband, Defendants/Appellees. 97-0089.
• Court: Court of Appeals of Arizona

Page 47

965 P.2d 47

192 Ariz. 313, 263 Ariz. Adv. Rep. 36

Ken BOTHELL and Bonita Bothell, individually and as parents and natural guardians of Akilah "Keely" Bothell, a minor, Plaintiffs/Appellants, v. TWO POINT ACRES, INC.; Rio Rico Stables; Mary Barret and John Doe Barret, wife and husband, Defendants/Appellees.

No. 2 CA-CV 97-0089.

Court of Appeals of Arizona,

Division 2, Department B.

Feb. 26, 1998.

Review Denied Oct. 20, 1998.

The Kimble Firm by Stephen Kimble and David F. Toone, Tucson, for Plaintiffs/Appellants.

Goering, Roberts, Berkman, Rubin & Brogna, P.C. by Chris L. Enos and David L. Berkman, Tucson, for Defendants/Appellees.

PELANDER, Presiding Judge.

¶1 In this personal injury action, plaintiffs/appellants appeal from the trial court's entry of summary judgment for defendants/appellees and from its order denying plaintiffs' cross-motion for partial summary judgment. We vacate the summary judgment for defendants and direct the trial court to enter partial summary judgment for plaintiffs on defendants' statutory immunity claim.

FACTS AND PROCEDURAL BACKGROUND

¶2 On appeal from a grant of summary judgment, we view all facts and reasonable inferences therefrom in the light most favorable to the party against whom judgment was entered. Prince v. City of Apache Junction, 185 Ariz. 43, 912 P.2d 47 (App.1996). Plaintiff Akilah "Keely" Bothell, who was ten years-old at the time in question, was enrolled in an after-school horse riding/care program with defendant Rio Rico Stables one afternoon per week with several other children. The program, supervised by defendant Mary Barratt, ¹ began for that group in the fall of 1994. On October 22, 1994, Keely and her father, plaintiff Ken Bothell, signed a preprinted release that defendants required program enrollees to execute. The release, a copy of which we append to this opinion, provided in part:

I (Rider) understand that horses are unpredictable and that participation in activities in the presence of horses always involves an element of risk. I clearly understand the following:

* * *

This horse riding or horse-drawn activity involves specific risks of property damage or personal injury to me or my minor children arising from approaching, handling, mounting, riding and dismounting the horse or horse-drawn vehicle, and from observing or participating in this activity, but that I nevertheless intentionally agree to assume these risks;

Upon mounting, and taking up the reins, I, the Rider, am in primary control of the horse I am riding, and Rio Rico Stables is not responsible for the results of my action or inaction;

* * *

I therefore specifically release Rio Rico Stables and its employees from all responsibility for injuries I may receive from the horse riding or horse-drawn vehicle activity, and agree to hold Rio Rico Stables and its employees blameless from any present and future claims that may be made on my behalf for any injuries received, including damage arising out of negligence by Rio Rico Stables or its employees....

¶3 Keely was injured on March 15, 1995, after the children had finished their ride and were grooming and feeding their horses. Because her regular horse (Satin) was lame, Keely had ridden another horse that day. After the ride, Keely asked Mary Barratt if she (Keely) could take Satin from a nearby corral to a grassy area to eat. According to Keely, Mary Barratt allowed her to do so. Mary Barratt directed Keely to get a halter and lead rope for Satin, which Keely then did.

¶4 In the corral with Satin was a young horse which had not been fully trained. Keely went by herself into the corral and placed the halter and lead rope on Satin. She then walked Satin to the corral gate and climbed through the fence to open the gate from the outside. When Satin started to walk away, Keely wrapped the lead rope around her left hand. The other horse in the corral then ¶5 In their complaint, plaintiffs alleged, inter alia, negligent supervision, training and instruction of business invitees like Keely. Defendants moved for summary judgment based on the release and A.R.S. § 12-553, which immunizes equine owners from liability under certain prescribed circumstances. Plaintiffs opposed the motion and moved for partial summary judgment, contending that both § 12-553 and the release are inapplicable to the facts at issue, and that the release "is vague and therefore void." The trial court granted defendants' motion and denied plaintiffs' cross-motion. This appeal followed the trial court's entry of judgment for defendants.

approached Satin, hit the rope, apparently became scared and ran through it. That caused the rope to tighten around Keely's hand, seriously injuring it.

DISCUSSION

I. Jurisdiction

¶6 We first address two preliminary questions, not discussed by the parties, relating to this court's jurisdiction. ² First, in a counterclaim, defendants (based on the release) sought indemnification from plaintiffs for any judgment they might obtain against defendants, as well as attorney's fees and costs incurred in defending this action. The trial court did not expressly rule on the counterclaim or include language in its judgment under Rule 54(b), Ariz.R.Civ.P., 16 A.R.S. Those omissions, however, do not divest this court of jurisdiction in view of the following circumstances: the trial court's entry of summary judgment for defendants rendered their indemnification claim moot; the judgment awarded taxable costs to defendants; and defendants ultimately waived their claim for attorney's fees. ³ Those developments, in essence, disposed of defendants' counterclaim, rendered the trial court's judgment "final," and terminated the action in toto for purposes of Rule 54(b).

¶7 Second, plaintiffs' appeal challenges not only the trial court's entry of summary judgment for defendants, but also its order denying plaintiffs' cross-motion for partial summary judgment. Such an order is neither appealable nor generally subject to review on appeal from a final judgment. Grain Dealers Mut. Ins. Co. v. James, 118 Ariz. 116, 575 P.2d 315 (1978) (refusing to address merits of appellant's cross-motion for summary judgment, which trial court had denied, despite reversing summary judgment for appellee); Sorensen v. Farmers Ins. Co., 191 Ariz. 464, 957 P.2d 1007 (Ct.App.1997); McCallister Co. v. Kastella, 170 Ariz. 455, 825 P.2d 980 (App.1992). In order to avoid piecemeal litigation, however, we may consider the merits of plaintiffs' cross-motion and direct entry of summary judgment in their favor if they are entitled to that as a matter of law and there are no genuine issues of material fact precluding it. See Mealey v. Orlich, 120 Ariz. 321, 585 P.2d 1233 (1978); State Farm Mut. Auto. Ins. Co. v. Peaton, 168 Ariz. 184, 812 P.2d 1002 (App.1990).

II. Standard of Review

¶8 On appeal from a summary judgment, we must determine de novo whether there are any genuine issues of material fact and whether the trial court erred in applying the law. Prince. In addition, issues involving statutory interpretation and whether a release form automatically exempts a defendant from liability are questions of law subject to this court's de novo review. Id.; Sirek v. Fairfield Snowbowl, Inc., 166 Ariz. 183, 800 P.2d 1291 (App.1990).

III. Summary Judgment

¶9 Plaintiffs contend that neither the release that Keely and her father signed nor § 12-553 applies under the facts of this

                case to bar defendants' liability as a matter of law.  Plaintiffs further assert that basing summary judgment for defendants on the release violates article XVIII, § 5, of the Arizona Constitution, because it conclusively "attempt[s] to advance the defense of assumption of the risk."   We agree with the first contention and therefore do not address the second. 4
                

A. The Release

¶10 A prospective exculpatory covenant like defendants' release must be strictly construed against the party seeking to enforce it. Morganteen v. Cowboy Adventures, Inc., 190 Ariz. 463, 949 P.2d 552 (App.1997); Sirek. Indeed, Arizona courts view such provisions with disfavor:

The law disfavors contractual provisions by which one party seeks to immunize himself against the consequences of his own torts. Although there are exceptions to the principle disfavoring attempts to gain immunity, they are narrowly drawn and posit that certain conditions are met--that there is no public policy impediment to the limitation, and that the parties did, in fact, bargain for the limitation. Finally, a rule of construction governing the interpretation of such limitations requires that the limiting language be construed most strictly against the party relying on it.

Salt River Project Agric. Improv. & Power Dist. v. Westinghouse Electric Corp., 143 Ariz. 368, 383, 694 P.2d 198, 213 (1984) (citations omitted). See also Maurer v. Cerkvenik-Anderson Travel, Inc., 181 Ariz. 294, 298, 890 P.2d 69, 73 (App.1994), quoting Salt River Project, 143 Ariz. at 382, 694 P.2d at 212 ("Attempts to release oneself from liability by contract for harm caused by one's own negligence are not looked upon with favor. 'This would tend to encourage carelessness.' ").

¶11 At the time of her accident, Keely was not riding a horse, or preparing or attempting to ride a horse. Nor was she engaged in conduct directly relating to horse-riding activities, such as mounting or dismounting a horse or taking its reins. Rather, Keely was injured after finishing her ride and while engaged sometime later, allegedly with Mary Barratt's knowledge and permission, with a totally different horse (Satin) in a separate activity unrelated to riding. The gist of plaintiffs' claim is negligent supervision of that distinct activity.

¶12 By signing the release, Keely and her father acknowledged various risks associated with "horse riding or horse-drawn activity," including risk of injury "from approaching, handling, mounting, riding and dismounting the horse or horse-drawn vehicle." They further...