Muller v. English, A96A0416
| Decision Date | 22 May 1996 |
| Docket Number | No. A96A0416,A96A0416 |
| Citation | 472 S.E.2d 448,221 Ga.App. 672 |
| Parties | MULLER et al. v. ENGLISH. |
| Court | Georgia Court of Appeals |
Lord, Bissell & Brook, James H. Wynn, Atlanta, for appellants.
Boone, Papadakis & Levine, James J. Gormley, III, Atlanta, for appellee.
This is a case of first impression construing the Injuries From Equine Activities Act, OCGA § 4-12-1 et seq., which provides immunity from liability for certain equine and llama activities. 1 Because the activity in question here falls within the purview of the Code section, we conclude the trial court erred in denying defendants' motion for summary judgment.
Dyna English, a rider and fox hunter of over 20 years' experience, was injured during a hunt sponsored by appellant Shakerag Hounds, Inc. English, riding her own horse, was in a small group known as the "hilltoppers" led by appellant Henry Muller. According to Muller's wife and the other riders in that small group, English was kicked by Muller's horse when she "lost control" and allowed her horse to run up "really fast" and cut between Muller and his wife, who was riding immediately behind him. According to English, she was riding along at a steady pace when Muller's horse suddenly and without warning kicked her in the leg.
English brought this action against Muller and Shakerag, seeking actual and punitive damages. Defendants answered, asserting OCGA § 4-12-3 inter alia as an affirmative defense, and moved for summary judgment on the basis of that Code section and assumption of the risk. The trial court denied summary judgment and certified the judgment for immediate review. We granted the application of Muller and Shakerag for interlocutory appeal.
1. The Injuries From Equine Activities Act, OCGA § 4-12-1 et seq., was enacted in 1991. The General Assembly made express legislative findings that "persons who participate in equine activities ... may incur injuries as a result of the risks involved in such activities," that "the state and its citizens derive numerous economic and personal benefits from such activities," and that "[i]t is, therefore, the intent of the General Assembly to encourage equine activities ... by limiting the civil liability of those involved in such activities." OCGA § 4-12-1.
OCGA § 4-12-3(a) provides that "an equine activity sponsor, an equine professional ... or any other person ... shall not be liable for an injury to or the death of a participant resulting from the inherent risks of equine activities," subject to certain exceptions provided in subsection (b). "Equine activity sponsor," "equine professional," "participant," and "inherent risks of equine activities" are defined in OCGA § 4-12-2. Specifically, " '[i]nherent risks of equine activities'... means those dangers or conditions which are an integral part of equine activities ... including, but not limited to: (A) The propensity of the animal to behave in ways that may result in injury, harm, or death to persons on or around them; (B) The unpredictability of the animal's reaction to such things as sounds, sudden movement, and unfamiliar objects, persons, or other animals; (C) Certain hazards such as surface and subsurface conditions; (D) Collisions with other animals or objects; and (E) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within his or her ability." OCGA § 4-12-2(7). English does not dispute that this incident falls within the general scope of the Act. English contends, however, either that Muller and Shakerag have failed to comply with certain conditions precedent to the Act, or that they fall under one of the enumerated exceptions to immunity.
To invoke the privileges of immunity provided by the Code section, an equine activity sponsor or equine professional must post warning signs containing the text specified in OCGA § 4-12-4(b), and certain contracts between equine activity sponsors or equine professionals and participants must contain the same language. OCGA § 4-12-4(a). English contends that Shakerag failed to comply with the Code because it posted "a single sign" rather than "signs" at the start of the day's hunt, and that the sign was not "conspicuously posted" because English and some other members of the hunt did not recall seeing it. 2
The precise wording of the Code section requires only that such signs be posted "on or near stables, corrals, or arenas where the equine professional or the equine activity sponsor conducts equine activities." OCGA § 4-12-4(a). Fox hunting, however, does not involve stables, corrals or arenas. The undisputed testimony in this case shows that the sport is conducted across miles of open rural country, its route and distance are not predictable because they are determined by the path of the fox or other animal, and it ordinarily begins with riders conveying their horses by trailer to a "meet" in any number of locations on the property of numerous landowners.
One of the Shakerag masters testified that she purchased seven signs before this incident. 3 She kept one or two signs in her trailer and posted five: one at the Shakerag clubhouse and the others at various locations at which the hunt frequently met. Because the hunt on the day of the incident did not begin at one of these locations, a sign was placed on a vehicle windshield. The master particularly recalled this because at the start of the meet she "advised everyone for a period of time about the Georgia law poster, that it was clearly in sight and that this was something new and that they needed to be aware of it." Moreover, English also signed a release that contained the full text of the statutory warning sign as required by OCGA § 4-12-4(a). Substantial compliance with a statutory requirement shall be deemed sufficient. OCGA § 1-3-1(c). Because the unique circumstances of fox hunting were not expressly contemplated by the Act, we conclude that the efforts made to post signs and the inclusion of the prescribed language in the release signed by English amounted to substantial compliance with the requirements of OCGA § 4-12-4.
2. English also relies upon certain exceptions provided in OCGA § 4-12-3(b) to contend that Shakerag and Muller are not entitled to the immunity granted by the statute.
(a) English first asserts that Muller falls under the exception in OCGA § 4-12-3(b)(1)(B), which makes immunity inapplicable when the She contends the evidence calls into question Muller's "ability to safely manage the particular animal." This section is inapplicable by its terms because no defendant "[p]rovided the animal" to the participant, English, "based on the participant's representations of his or her ability"; she was riding her own mount. 4
(b) English also attempts to rely on subsection (b)(2), which provides an exception when the person seeking the benefit of the statute "[o]wns, leases, rents, or otherwise is in lawful possession and control of the land or facilities upon which the participant sustained injuries because of a dangerous latent condition which was known or should have been known to the equine activity sponsor, equine professional ... or person and for which warning signs have not been conspicuously posted." She asserts that Muller's horse amounted to a "dangerous latent condition" on Muller's land, where the incident occurred. English relies on the proposition that a vicious animal "permitted ... by careless management, to go at liberty" may constitute a dangerous condition on the property of an owner or occupier of land. Sutton v. Sutton, 145 Ga.App. 22, 24-25, 243 S.E.2d 310 (1978) (). This proposition seems inapplicable, because Muller's horse was not "at liberty." It was under the direct control of its rider and was merely passing across land owned by the rider.
We need not reach this question, however, because the exception in OCGA § 4-12-3(b)(2) applies only to those conditions "for which warning signs have not been conspicuously posted." The text of the warning signs required by OCGA § 4-12-4(b) explicitly refers to "the inherent risks of equine activities, pursuant to Chapter 12 of Title 4 of the Official Code of Georgia Annotated." These inherent risks include "[t]he propensity of the animal to behave in ways that may result in injury," "[t]he unpredictability of the animal's reaction" to persons and things around it, and "[t]he potential of a participant to act in a negligent manner that may contribute to injury." OCGA § 4-12-2(7). As noted above, a warning sign was posted at the start of the hunt on the day of the incident, and English additionally signed a release that contained the statutory warning as required by the Code section.
Moreover, the construction of subsection (b)(2) urged by English would amount to a nullification of the statute with respect to the very risks for which it provides immunity where the defendant "owns, leases, rents, or otherwise is in lawful possession and control of the land or facilities upon which the participant sustained injuries." This would effectively vitiate the statute's application to most stables, riding schools, colleges, horse show sponsors, instructors, and trainers, see OCGA § 4-12-2(5), providing immunity only for trespassers conducting equine activities on another's property without permission. "It is a basic rule of construction that a statute or constitutional provision should be construed to make all its parts...
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