McGraw v. R And R Investments, Ltd., 1D03-5032.

• Citation: 877 So.2d 886
• Decision Date: 20 July 2004
• Docket Number: No. 1D03-5032.,1D03-5032.
• Parties: Patricia McGRAW, Appellant, v. R AND R INVESTMENTS, LTD., Appellee.
• Court: Florida District Court of Appeals

877 So.2d 886

Patricia McGRAW, Appellant, v. R AND R INVESTMENTS, LTD., Appellee.

No. 1D03-5032.

District Court of Appeal of Florida, First District.

July 20, 2004.

W. Dexter Douglass and Thomas Crapps of Douglass Law Firm, P.A., Tallahassee, and Gillis E. Powell, Jr., of Powell, Powell & Powell, Crestview, for Appellant.

Bobby L. Whitney, Jr., of Seymour & Whitney, Fort Walton Beach, for Appellee.

ERVIN, J.

This is an appeal from a final summary judgment finding appellee, R and R Investments, Ltd. (R & R), an equine activity sponsor, not liable for injuries suffered by appellant, Patricia McGraw, an equine trainer employed by R & R, after she was thrown by a horse which R & R owned, by reason of the immunity afforded to equine sponsors by section 773.02, Florida Statutes (2000). McGraw asserts that because R & R failed to comply with the notice provisions of section 773.04, Florida Statutes (2000), requiring all such sponsors to post warnings of their nonliability for injuries or death resulting from the inherent risks of equine activities, the trial court erred in holding that the immunity provided therein applied to bar the action. We agree, and reverse and remand with directions.

This is a case of first impression. In that this is an appeal from the entry of summary judgment which involves a pure question of law, our review standard is de novo. See Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001). In reaching its decision, the lower court concluded that no provision therein "conditions the protection of the statute upon compliance with section 773.04 [the posting requirements], and the fact that the defendant failed to comply with [it] is of no effect." McGraw claims that if the trial court had correctly construed all pertinent provisions of chapter 773 in pari materia, it should have been obvious that a reasonably prudent person would not have failed to post the notice demanded by section 773.04; therefore, the court erred in its construction, requiring reversal of the summary judgment. R & R responds, arguing that because the only exceptions to the broad grant of immunity given equine activity sponsors from liability for injuries suffered by participants while engaging in inherent risks of equine activities are found solely in section 773.03, Florida Statutes (2002), and, because the statutory duty to warn of the sponsor's nonliability is otherwise provided in section 773.04, the breach of such duty, if it occurred, does not meet any of the narrow categories of exceptions set out under section 773.03.

A proper resolution of the issue requires a careful examination of sections 773.02, 773.03, and 773.04.

Section 773.02 provides:

General provisions. — Except as provided in s. 773.03, an equine activity sponsor, an equine professional, or any other person, which shall include a corporation or partnership, shall not be liable for an injury to or the death of a participant resulting from the inherent risks of equine activities and, except as provided in s. 773.03, no participant nor any participant's representative shall have any claim against or recover from any equine activity sponsor, equine professional, or any other person for injury, loss, damage, or death of the participant resulting from any of the inherent risks of equine activities.

(Emphasis added.) It is undisputed that R & R is an "equine activity sponsor"¹ and McGraw a "participant"² under the facts of this case. Moreover, there is no disagreement that McGraw's injuries were the result of "an inherent risk of an equine activity," defined in part in section 773.01(6), Florida States (2002), as "those dangers or conditions which are an integral part of equine activities."³

In that section 773.02 explicitly refers only to the limitations from liability as provided in section 773.03, we must carefully examine the exceptions expressed therein to determine whether they reasonably permit an in pari materia construction with provisions not included. Section 773.02(2) provides:

(2) Nothing in s. 773.02 shall prevent or limit the liability of an equine activity sponsor, an equine professional, or any other person if the equine activity sponsor, equine professional, or person:

(a) Provided the equipment or tack, and knew or should have known that the equipment or tack was faulty, and it was so faulty as to be totally or partially responsible for the injury;

(b) Provided the equine and failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity, or to determine the ability of the participant to safely manage the particular equine based on the participant's representation of his or her ability;

(c) Owns, leases, rents, has authorized use of, or is otherwise in lawful possession and control of the land or facilities upon which the participant was injured, and the injury was due totally or in part, to a dangerous latent condition which was known to the equine activity sponsor, equine professional, or person and failed to post warning signs;

(d) Commits an act or omission that a reasonably prudent person would not have done or omitted under the same or similar circumstances or that constitutes willful or wanton disregard for the safety of the participant, which act or omission was a proximate cause of the injury; or

(e) Intentionally injures the participant.

(Emphasis added.)

Section 773.04 provides in full:

Posting and notification. —

(1) Every equine activity sponsor and equine professional shall:

(a) Post and maintain one or more signs which contain the warning notice specified in subsection (2). These signs shall be placed in a clearly visible location near to where the equine activity begins. The warning notice specified in subsection (2) shall appear on the sign in black letters, with each letter to be a minimum of 1 inch in height, with sufficient color contrast to be clearly distinguishable.

(b) Give the participant a written document which the participant shall sign with the warning notice specified in subsection (2) clearly printed on it. Said written document may be used in lieu of posting the warning on the site of the equine activity sponsor's or equine professional's facility, and shall be given to any participant in an equine event not on the location of the equine activity sponsor's or equine professional's facility.

(2) The signs and document described in subsection (1) shall contain the following warning notice:

WARNING

Under Florida law, an equine activity sponsor or equine professional is not liable for an injury to, or the death of, a participant in equine activities resulting from the inherent risks of equine activities.

Nothing in section 773.04, or elsewhere in chapter 773, expressly provides a consequence attending a sponsor's neglect for not posting the warning there required. Thus, despite the mandatory language, "shall," directing that signs be prominently displayed warning all persons of a sponsor's nonliability for injuries resulting from the inherent risk of equine activities, the legislature failed to state what sanction should attach to such omission. Although it is a general rule that courts will not ordinarily imply exceptions to the provisions of a statute, such exceptions may be supplied where they are necessary to give effect to the legislative intent. See 73 Am.Jur.2d Statutes § 213 (2001). For example, in the interest of justice, proof of fraudulent concealment may constitute an implied exception to the statute of limitations, thereby tolling the running of the statute until discovery or reasonable opportunity of discovery of the concealment by the owner of the cause of action. See Nardone v. Reynolds, 333 So.2d 25, 39 (Fla.1976), modified on other grounds, Tanner v. Hartog, 618 So.2d 177 (Fla.1993); S.A.P. v. Dep't of Health & Rehab. Servs., 704 So.2d 583, 585 (Fla. 1st DCA 1997).

In resolving the question of whether the legislature reasonably intended to exclude from the ambit of protection an equine owner that had not posted the required warning, it is necessary for us to consider certain pertinent maxims of statutory construction.

We note that before the enactment of chapter 773, effective May 5, 1993, chapter 93-169, section 93, Laws of Florida, the common law permitted an injured equine rider to bring an action against an equine owner upon a showing that the horse had a propensity to do the act that caused the injury, and the owner knew of such propensity. See 4 Am.Jur.2d Animals § 115 (1995); Deese v. White Belt Dairy Farms, Inc., 160 So.2d 543 (Fla. 2d DCA 1964). The rule is well-established that statutes in derogation of common law, such as those provided in chapter 773, must be strictly construed, and if any doubt exists as to the legislature's intent, the doubt should be interpreted in favor of the injured party. See State ex. rel. Grady v. Coleman, 133 Fla. 400, 183 So. 25 (1938).

Another rule of statutory construction, particularly applicable to the case at bar, is that statutes relating to the same subject matter should be read in pari materia, and such rule is particularly applicable where such statutes are enacted as part of a single act. Major v. State, 180 So.2d 335 (Fla.1965). By reading all three statutes of chapter 773 in pari materia, we conclude that the consequence not stated by the legislature for the failure of an equine owner to comply with the posting requirements of section 773.04 is supplied by conjoining the provisions therein with the exceptions enumerated in section 773.03. Thus, the omission of the equine sponsor in not posting the sign required in section 773.04 is one "that a reasonably prudent person would not have done or omitted under the same or similar circumstances." § 773.03(2)(d), Fla. Stat (2002). In our judgment, such construction is consistent with the legislative intent, although not expressly stated, that the failure to post such warning disqualifies the sponsor...