Millan v. Brown

• Decision Date: 10 June 2002
• Citation: 743 N.Y.S.2d 539,295 A.D.2d 409
• Parties: COLLEEN A. MILLAN et al., Respondents,<BR>v.<BR>PAUL BROWN et al., Defendants and Third-Party Plaintiffs-Appellants, et al., Defendants.<BR>SUZANNE PHILLIPS et al., Third-Party Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

295 A.D.2d 409

743 N.Y.S.2d 539

COLLEEN A. MILLAN et al., Respondents,

v.PAUL BROWN et al., Defendants and Third-Party Plaintiffs-Appellants, et al., Defendants.SUZANNE PHILLIPS et al., Third-Party Defendants-Respondents.

Decided June 10, 2002.

Santucci, J.P., Florio, O'Brien and Schmidt, JJ., concur.

Ordered that the order is modified by deleting the provision thereof granting that branch of the motion of the third-party defendants which was for summary judgment dismissing the cause of action in the third-party complaint based on breach of contract and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.

The plaintiffColleen A. Millan(hereinafter the injured plaintiff) was injured in the course of taking a riding lesson when her horse suddenly took off in an uncontrollable gallop.It appears from the deposition testimony of the injured plaintiff, the instructor, and two eyewitnesses that the horse "spooked" when the defendantEric Janelli, who was preparing a horse trailer parked alongside the riding ring, shook a vinyl tarp and created a "loud * * * crackly" noise.The plaintiffs commenced this action against the horse farm where the lesson was being given, Brookville Farms, Ltd.(hereinafter Brookville), its owner, Paul Brown, the farm manager, Christine Janelli, her son Eric Janelli, and the riding establishment, Twin Gables Farm.Thereafter, Brookville and Paul Brown commenced a third-party action against the instructor, Suzanne Phillips doing business as Twin Gables Farms, and against her individually, alleging claims involving negligence and breach of contract.

The Supreme Court correctly denied the cross motion of Brookville and Brown.While the injured plaintiff assumed the risk of falling off a horse, she did not assume the risk created by the alleged reckless conduct of the defendantEric Janelli, who, it is alleged, should have exercised greater caution under the circumstances, given his experience and knowledge of horses (seeMorgan v State of New York,90 NY2d 471;Gahan v Mineola Union Free School Dist.,241 AD2d 439).A triable issue of fact exists as to whether the actions of Eric Janelli, although not an employee of Brookville or Brown, could be attributed to the owners of the farm.There was testimony that Eric Janelli was present on the property on a continuing and regular basis with the knowledge and acquiescence of the owners.

The Supreme...