Filer v. Adams

• Citation: 966 N.Y.S.2d 553,2013 N.Y. Slip Op. 03897,106 A.D.3d 1417
• Parties: Andrea FILER et al., Respondents, v. Megan ADAMS, Appellant.
• Decision Date: 30 May 2013
• Court: New York Supreme Court — Appellate Division

106 A.D.3d 1417
966 N.Y.S.2d 553
2013 N.Y. Slip Op. 03897

Andrea FILER et al., Respondents,
v.
Megan ADAMS, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

May 30, 2013.

[966 N.Y.S.2d 555]

Pemberton & Briggs, Schenectady (Paul Briggs of counsel), for appellant.

Gerstenzang, O'Hern, Hickey, Sills & Gerstenzang, Albany (Peter J. Hickey of counsel), for respondents.

Before: ROSE, J.P., SPAIN, McCARTHY and EGAN Jr., JJ.

SPAIN, J.

[106 A.D.3d 1418]Appeal from an order of the Supreme Court (Pritzker, J.), entered June 12, 2012 in Washington County, which denied defendant's motion for summary judgment dismissing the complaint.

One evening in June 2008 around 6:30 p.m., plaintiff Andrea Filer (hereinafter plaintiff) and her daughter were riding their horses along Riley Hill Road, a public highway in the Town of Salem, Washington County. At the same time, defendant was jogging along the same road with her son in a stroller and her two dogs by her side. Plaintiff and her daughter noticed that the horses' ears flickered and they stiffened, apparently hearing sounds from behind, and they stopped to calm the horses. The riders looked back and saw defendant. Plaintiff and her daughter testified at a deposition that plaintiff twice yelled to defendant to “please stop”; plaintiff testified that defendant replied “no” and continued on. Plaintiff and her daughter also claimed that defendant's dogs were unleashed, while defendant testified they were on leashes strapped to the stroller. Defendant testified that, upon observing plaintiff having difficulty controlling her horse, she slowed to a walk, which plaintiff did not contradict, and she denied ever hearing plaintiff's request for her to stop. At that time, while defendant was still about 50 yards behind the riders, one of defendant's dogs barked and the horses both abruptly broke into a canter or a run. Plaintiff, who was not wearing a helmet, fell from her horse seconds later and sustained serious injuries.

Thereafter, plaintiff and her husband, derivatively, commenced this action against defendant. Defendant sought summary judgment, arguing that plaintiff, who was an experienced horseback rider, assumed the risks commonly associated with that activity, thereby absolving defendant of liability for plaintiff's injuries. Supreme Court denied defendant's motion for summary judgment and this appeal ensued.

The parties have focused on the defense of primary assumption of risk, a “closely circumscribed” doctrine applied only in the “limited context” ( Trupia v. Lake George Cent. School Dist., 14 N.Y.3d 392, 395, 901 N.Y.S.2d 127, 927 N.E.2d 547 [2010] ) of qualified and “particular athletic and recreative activities” ( Custodi v. Town of Amherst, 20 N.Y.3d 83, 88, 957 N.Y.S.2d 268, 980 N.E.2d 933 [2012] ). We find, however, that there is no proof whatsoever that plaintiff was engaged in a qualified activity that was “sponsored or otherwise supported by the defendant” or that plaintiff's injury “occurred in a designated athletic or recreational venue” and, therefore, the doctrine of primary assumption of the risk is not applicable to insulate defendant from all liability for plaintiff's injuries [106 A.D.3d 1419]( Custodi v. Town of Amherst, 20 N.Y.3d at 88, 957 N.Y.S.2d 268, 980 N.E.2d 933;see

[966 N.Y.S.2d 556]

Trupia v. Lake George Cent. School Dist., 14 N.Y.3d at 395–396, 901 N.Y.S.2d 127, 927 N.E.2d 547;Lecznar v. Sanford, 265 A.D.2d 728, 730, 697 N.Y.S.2d 186 [1999];Roe v. Keane Stud Farm, 261 A.D.2d 800, 801, 690 N.Y.S.2d 336 [1999];contrast Soloman v. Taylor, 91 A.D.3d 1180, 1181, 937 N.Y.S.2d 408 [2012] [horseback riding plaintiff thrown from horse spooked by dogs on the defendant's property, where the plaintiff boarded her horse] ). Since such qualified activity was not involved, “defendant remains potentially liable for ... plaintiff's injury and the comparative negligence statute ( seeCPLR 1411) operates to reduce[ ] plaintiff's recovery in the proportion ... her conduct bears to ... defendant's culpable conduct” ( Roe v. Keane Stud Farm, 261 A.D.2d...