Carl v. Resnick

• Decision Date: 31 March 1999
• Docket Number: No. 1-97-3627.,1-97-3627.
• Citation: 714 N.E.2d 1,239 Ill.Dec. 443,306 Ill. App.3d 453
• Parties: Judy CARL, Plaintiff-Appellant, v. Shelly RESNICK, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

714 N.E.2d 1

306 Ill. App.3d 453

239 Ill.Dec. 443

Judy CARL, Plaintiff-Appellant, v. Shelly RESNICK, Defendant-Appellee.

No. 1-97-3627.

Appellate Court of Illinois, First District, Third Division.

March 31, 1999.

Demos and Burke, Chicago (Lawrence P. Devens, of counsel), for Appellant.

James P. Newman of Newman and Pelafas, Chicago, for Appellee.

MODIFIED ON DENIAL OF PETITION FOR REHEARING

Justice McBRIDE¹ delivered the opinion of the court:

On November 19, 1995, plaintiff Judy Carl was riding her horse on a trail in the Cook County Forest Preserve. Defendant Shelly Resnick and her friend, Kathy Paddock, both on horses owned by defendant, were riding in the opposite direction. All three riders stopped to talk when they passed along the trail. At some point, the horse upon which Paddock was riding pinned its ears back, turned its body toward plaintiff's horse, and kicked plaintiff and her horse. One hoof struck plaintiff's leg, causing her injury.

On February 13, 1997, plaintiff filed her first amended complaint alleging both a violation of the Animal Control Act (510 ILCS 5/16 (West 1995)) and negligence. Both parties filed motions for summary judgement. The trial court denied plaintiff's motion for summary judgement on the Animal Control Act count and granted defendant's motion for summary judgement, based upon the Equine Activity Liability Act (Equine Act) (745 ILCS 47/1 et seq. (West 1995)), on both counts. Plaintiff now appeals.

Since the trial court found both counts of plaintiff's complaint barred by the Equine Act, we will first address the applicability of that Act to the instant cause of action. We recognize this is an issue of first impression, no Illinois court having interpreted the Equine Act since it became effective on July 7, 1995. Section 5 of the Equine Act sets forth the Act's purposes:

"The General Assembly recognizes that persons who participate in equine activities may incur injuries as a result of the risks involved in those activities. The General Assembly also finds that the State and its citizens derive numerous economic and personal benefits from equine activities. Therefore, it is the intent of the General Assembly to encourage equine activities by delineating the responsibilities of those involved in equine activities." 745 ILCS 47/5 (West 1995).

The "equine activities" sought to be "encourage[d]" are enumerated in section 10(c) of the Act:

"(c) `Equine activity' means:

(1) Equine shows, fairs, competitions, performances, or parades that involve any or all breeds of equines and any of the equine disciplines, including, but not limited to, dressage, hunter and jumper horse shows, grand prix jumping, 3 day events, combined training, rodeos, driving, pulling, cutting, polo, steeplechasing, English and western performance riding, endurance trail riding and western games, and hunting.

(2) Equine training activities, teaching activities, or both.

(3) Boarding equines.

(4) Riding, inspecting, or evaluating an equine belonging to another, whether or not the owner has received some monetary consideration or other thing of value for the use of the equine or is permitting a prospective purchaser of the equine to ride, inspect, or evaluate the equine.

(5) Rides, trips, hunts, or other equine activities of any type however informal or impromptu that are sponsored by an equine activity sponsor.

(6) Placing or replacing horseshoes on an equine." 745 ILCS 47/10(c) (West 1995).

The Equine Act encourages these "equine activities" by providing an assumption of risk defense to defendants sued by plaintiffs injured while engaging in one of the above-listed activities. Section 15 sets forth this defense:

"Each participant who engages in an equine activity expressly assumes the risk of and legal responsibility for injury, loss, or damage to the participant or the participant's property that results from participating in an equine activity * * *." 745 ILCS 47/15 (West 1995).

In her motion for summary judgement, defendant did not argue that plaintiff was engaged in one of the six categories of activities listed in section 10(c) of the Equine Act at the time of her injury. Rather, she argued plaintiff was "engage[d] in an equine activity" as defined in section 10(a). Compare 745 ILCS 47/10(a) (West 1995) (defining "Engages in an equine activity") with 745 ILCS 47/10(c) (West 1995) (defining "Equine activity"). Section 10(a) defines "engages in equine activity" as "riding, training, assisting in medical treatment of, driving, or being a passenger upon an equine, whether mounted or unmounted, or assisting a participant." 745 ILCS 47/10(a) (West 1995). It is true, as defendant asserts, that plaintiff falls within this definition, inasmuch as plaintiff was "riding * * * an equine" when she was injured. Nevertheless, we believe that section 10(a) was clearly intended to be read in conjunction with section 10(c)—only those "riding * * * an equine" (745 ILCS 47/10(a)) while participating in one of the six statutory categories of activities (745 ILCS 47/10(c)) assume the risk of their injuries. Thus, in the present case plaintiff's complaint against defendant was not barred by the Equine Act unless plaintiff's recreational riding of her own horse on a public trail was one of the limited activities sought to be encouraged by the Act.

In her brief on appeal, defendant discusses only one of the categories of activities enumerated in section 10(c): "[r]iding, inspecting, or evaluating an equine belonging to another * * *." See 745 ILCS 47/10(c)(4) (West 1995). We fail to see how the activity in which plaintiff was engaged prior to her injury in the instant case falls within this description. While defendant's companion, Kathy Paddock, may have been "riding * * * an equine belonging to another" (745 ILCS 47/10(c)(4)) at the time of the incident (she was riding a horse owned by defendant), there is no question that the plaintiff was riding her own horse at the time of her injury.

Section 10(c)(4) illustrates why we must reject defendant's assertion that the Equine Act was intended to bar any cause of action brought by a plaintiff injured while "riding * * * an equine" as defined in section 10(a). Such a broad interpretation of the Equine Act would render section 10 internally inconsistent. As previously mentioned, section 10(c)(4) bars only those causes of action brought by plaintiffs injured while "riding * * * an equine belonging to another * * *." 745 ILCS 47/10(c)(4) (West 1995) (Emphasis added). Similarly, section 10(c)(5) permits the assumption of risk defense to be raised against a plaintiff injured while riding an equine, but only in the event that the ride was "sponsored by an equine activity sponsor." See 745 ILCS 47/10(c)(5) (West 1995) (equine activities include "[r]ides, trips, hunts, or other equine activities of any type however informal or impromptu that are sponsored by an equine activity sponsor") (Emphasis added); see also 745 ILCS 47/10(d) (West 1995) (defining "equine activity sponsor"). Only by ignoring these two provisions could we adopt the expansive interpretation of the Equine Act urged by defendant.

Our Equine Act is very similar to other "Equine Activity Liability Acts" (EALAs) which have been enacted in many states. See generally McEvoy, The Rise of Equine Activity Liability Acts, 3 Animal L. 201 (1997); Centner, The New Equine Liability Statutes, 62 Tenn. L.Rev. 997 (1995); Carmel, The Equine Activity Liability Acts, 83 Ky. L.J. 157 (1994-95). The vast majority of these EALAs would not apply to the recreational riding at issue here. See 83 Ky. L.J. at 177 (noting only a small number of states have EALAs which encompass recreational horseback riding). Had our Legislature intended to give our Equine Act such a broad reach, it could have easily done so. North Carolina's EALA defines "equine activity" as "any activity involving an equine." N.C. Gen.Stat. § 99E-1(3) (1997). In Arkansas, "equine activity" includes "[r]ides, hunts, or other equine activities of any type, however informal or impromptu" (Ark.Code Ann. § 16-120-201(2)(E) (Michie 1997); see also Wyo. Stat. Ann. § 1-1-122(a)(iv)(F) (Michie 1998)), while Vermont's EALA is even more succinct (see Vt. Stat. Ann. tit. 12, § 1039(a)(2)(C) (1996) ("equine activity" includes "[r]ides, trips, or hunts")). See also Wis. Stat. Ann. § 895.481 (West 1998) ("equine activity" includes "[r]iding, training or driving an equine or being a passenger on an equine"); Conn. Gen.Stat. § 52-557p (1997) ("Each person engaged in recreational equestrian activities shall assume the risk and legal responsibility for any injury * * * "). In the two cases we have found where plaintiffs were kicked by horses ridden by others and brought suit under an EALA identical to ours, both plaintiffs were engaged in "equine activities" as defined in section 10(c). See Gautreau v. Washington, 672 So.2d 262 (La.Ct.App.1996) (plaintiff kicked by another participant's horse during horse show); Muller v. English, 221 Ga.App. 672, 472 S.E.2d 448 (1996) (plaintiff kicked by another participant's horse during fox hunt). In sum, we find that plaintiff in the present case was not engaged in an "equine activity," as defined in our Equine Act, at the time of her injury, and that her complaint, therefore, was not barred by that Act. Since we have found the Equine Act inapplicable to plaintiff, we do not address plaintiff's contention that only "equine activity sponsors" and "equine professionals" (defendant admittedly not being either) are insulated from liability by the Act. But cf. 745 ILCS 47/20(b) (West 1995) (listing exceptions whereby "an equine activity sponsor, an equine professional, or any other person" can still be held liable under the Act) (Emphasis added); Gautreau, 672 So.2d at 265 (finding availability of assumption of risk defense in similarly worded Louisiana statute not limited to "equine activity sponsors" and "equine professionals").

Having found...