Jones v. Farm

• Decision Date: 04 May 2018
• Docket Number: CA 17–01222,1530
• Citation: 75 N.Y.S.3d 742,161 A.D.3d 1590
• Parties: Donna JONES, Plaintiff–Appellant, v. SMOKE TREE FARM, a New York Partnership, Robert F. Smith, Individually and as a Partner of Smoke Tree Farm and/or Doing Business as Smoke Tree Farm, Benedette Smith, Individually and as a Partner of Smoke Tree Farm and/or doing Business as Smoke Tree Farm, Diane Van Patten, Individually and as a Partner of Smoke Tree Farm and/or doing Business as Smoke Tree Farm, and Don Van Patten, Individually and as Partner of Smoke Tree Farm and/or doing Business as Smoke Tree Farm, Defendants–respondents.
• Court: New York Supreme Court — Appellate Division

161 A.D.3d 1590

75 N.Y.S.3d 742

Donna JONES, Plaintiff–Appellant,

v.SMOKE TREE FARM, a New York Partnership, Robert F. Smith, Individually and as a Partner of Smoke Tree Farm and/or Doing Business as Smoke Tree Farm, Benedette Smith, Individually and as a Partner of Smoke Tree Farm and/or doing Business as Smoke Tree Farm, Diane Van Patten, Individually and as a Partner of Smoke Tree Farm and/or doing Business as Smoke Tree Farm, and Don Van Patten, Individually and as Partner of Smoke Tree Farm and/or doing Business as Smoke Tree Farm, Defendants–respondents.

1530

CA 17–01222

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

Entered: May 4, 2018

MICHAELS & SMOLAK, P.C., AUBURN (MICHAEL G. BERSANI OF COUNSEL), FOR PLAINTIFF–APPELLANT.

COSTELLO, COONEY & FEARON, PLLC, CAMILLUS (ERIN K. SKUCE OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.

PRESENT: SMITH, J.P., DEJOSEPH, NEMOYER, AND CURRAN, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is modified on the law by denying the cross motion and reinstating the amended complaint, and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries that she sustained when she fell from a horse during a riding lesson at defendants' stables. Prior to the lesson, plaintiff signed a release, which provided that the "[u]ndersigned assumes the unavoidable risks inherent in all horse-related activities, including but not limited to bodily injury and physical harm to horse, rider, employee and spectator." Plaintiff moved for, inter alia, partial summary judgment dismissing defendants' affirmative defense of release on the ground that the release signed by plaintiff was void under General Obligations Law § 5–326. Defendants cross moved for summary judgment dismissing the amended complaint. Plaintiff appeals from an order that granted the cross motion and dismissed the amended complaint on the ground of assumption of the risk, and denied the motion as academic.

We agree with plaintiff that Supreme Court erred in granting the cross motion and dismissing the amended complaint, and we therefore modify the order accordingly. "The assumption of risk doctrine applies as a bar to liability where a consenting participant in sporting or recreational activities ‘is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks’ " ( Rosenblatt v. St. George Health & Racquetball Assoc., LLC, 119 A.D.3d 45, 56, 984 N.Y.S.2d 401 [2d Dept. 2014] ). " ‘If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them’ " ( id. ). Nevertheless, " ‘[a]wareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff’ " ( Georgiades v. Nassau Equestrian Ctr. at Old Mill, Inc., 134 A.D.3d 887, 889, 22 N.Y.S.3d 467 [2d Dept. 2015] ). Ultimately, the doctrine of assumption of the risk "will not serve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased" ( Rosenblatt, 119 A.D.3d at 56, 984 N.Y.S.2d 401 ). Here, it is undisputed that plaintiff was a beginner and had never before attempted to mount or ride a horse, and the deposition testimony relied upon by defendants raises questions of fact whether defendants unreasonably increased the risks associated with mounting the horse by failing to give plaintiff adequate instructions and assistance based on her size, athleticism, and obvious struggles in attempting to mount the horse, and whether there were concealed risks of mounting the horse, i.e., whether the horse was "tacked" properly (see Georgiades, 134 A.D.3d at 889, 22 N.Y.S.3d 467 ; Vanderbrook v. Emerald Springs Ranch, 109 A.D.3d 1113, 1115, 971 N.Y.S.2d 754 [4th Dept. 2013] ; Corica v. Rocking Horse Ranch, Inc., 84 A.D.3d 1566, 1567–1568, 923 N.Y.S.2d 739 [3d Dept. 2011] ). For the same reasons, we reject defendants' contention, as an alternative ground for affirmance, that the written release established as a matter of law that, as per the language of the release, plaintiff expressly assumed "the unavoidable risks inherent in all horse-related activities" (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).

Contrary to plaintiff's contention, she is not entitled to the dismissal of the affirmative defense of release inasmuch as the release is not void and unenforceable pursuant to General Obligations Law § 5–326. "Where a facility is ‘used for purely instructional purposes,’ section 5–326 is inapplicable even if the instruction that is provided relates to an activity that is recreational in nature" ( Tiede v. Frontier Skydivers, Inc., 105 A.D.3d 1357, 1358, 964 N.Y.S.2d 326 [4th Dept. 2013] ). Here, it is undisputed that plaintiff "enrolled in [a] course, paid tuition, not a fee, for lessons and was injured during one of her instructional periods" ( Lemoine v. Cornell Univ., 2 A.D.3d 1017, 1019, 769 N.Y.S.2d 313 [3d Dept. 2003], lv denied 2 N.Y.3d 701, 778 N.Y.S.2d 459, 810 N.E.2d 912 [2004] ), and the record establishes that any recreational use of defendants' facility was "ancillary to its primary educational purpose" ( id. ; see Millan v. Brown, 295 A.D.2d 409, 411, 743 N.Y.S.2d 539 [2d Dept. 2002] ; cf. Vanderbrook, 109 A.D.3d at 1115, 971 N.Y.S.2d 754 ).

Finally, by failing to raise any issues in her brief with respect to that part of her motion seeking to preclude defendants from mentioning the release at trial, plaintiff has abandoned any such issue on appeal (see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 984, 609 N.Y.S.2d 745 [4th Dept. 1994] ).

All concur except NeMoyer, J., who dissents in part and votes to affirm in the following memorandum:

I respectfully dissent in part and would affirm.¹ The assumption of the risk doctrine is a complete bar to recovery where a participant in a sporting or recreational activity is injured as a result of a risk inherent in that activity (see Turcotte v. Fell, 68 N.Y.2d 432, 439, 510 N.Y.S.2d 49, 502 N.E.2d 964 [1986] ). "As a general rule, participants properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent, or reasonably foreseeable consequences of the participation" ( id. , citing Maddox v. City of New York, 66 N.Y.2d 270, 277–278, 496 N.Y.S.2d 726, 487 N.E.2d 553 [1985] ). "It is not necessary to the application of assumption of the risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results " ( Maddox, 66 N.Y.2d at 278, 496 N.Y.S.2d 726, 487 N.E.2d 553 [emphasis added]; see Yargeau v. Lasertron, 128 A.D.3d 1369, 1371, 7 N.Y.S.3d 780 [4th Dept. 2015], lv denied 26 N.Y.3d 902, 2015 WL 5125660 [2015] ; Lamey v. Foley, 188 A.D.2d 157, 164, 594 N.Y.S.2d 490 [4th Dept. 1993] ).

For our purposes, it is...