Roe v. Farm
| Decision Date | 20 May 1999 |
| Court | New York Supreme Court — Appellate Division |
| Parties | LORAINE ROE, Appellant,<BR>v.<BR>KEANE STUD FARM et al., Respondents. |
Plaintiff, an experienced horse trainer, arrived at defendant Keane Stud Farm (hereinafter the farm) in the Town of Amenia, Dutchess County, on October 11, 1995 to pick up a horse that was to be loaded into her trailer. The horse, which had been tranquilized, refused to step onto the ramp and, when plaintiff attempted to assist the employees by putting her hand on the horse's shoulder, the horse kicked her in the thigh. The employees helped plaintiff into a pickup truck and proceeded to take her to the hospital; however, while en route, plaintiff was transferred to an ambulance.
Plaintiff commenced this negligence action against the farm and its owner. Following joinder of issue, defendants moved for summary judgment dismissing the complaint based solely on the theory that plaintiff had assumed the risk of her injury. Supreme Court found a question of fact as to whether defendants were negligent in moving plaintiff after the accident. The court, however, further held there was no proof that defendants acted negligently in attempting to load the horse into the trailer and, even assuming defendants' negligence, the sole cause of plaintiff's injuries was her own conduct. Plaintiff now appeals from that part of Supreme Court's order.[*]
Initially, we note that the doctrine of primary assumption of risk presents a complete bar to a defendant's liability and is limited to situations in which a plaintiff has been injured "while voluntarily participating in a sporting or entertainment activity" (Comeau v Wray, 241 AD2d 602, 604; see, Stirpe v Maloney & Sons, 252 AD2d 871, 872; Boyce v Vazquez, 249 AD2d 724, 726). If such an activity is not involved, a defendant remains potentially liable for a plaintiff's injury and the comparative negligence statute (see, CPLR 1411) operates to "reduce[] the plaintiff's recovery in the proportion which his or her conduct bears to the defendant's culpable conduct" (Cohen v Heritage Motor Tours, 205 AD2d 105, 108; see, Turcotte v Fell, 68 NY2d 432, 438; Stirpe v Mahoney & Sons, supra, at 872).
The record herein discloses that plaintiff had been in the horse training business for approximately 20 years. She arrived at the farm with her trailer to bring the horse back to a training facility. The horse was a large three-year-old colt which she knew had not been broken. Plaintiff was aware that the horse had been given a tranquilizer and observed that he was apprehensive. When the horse stopped at the ramp, plaintiff volunteered her assistance. She stated that she was kicked when she touched his shoulder to make him comfortable.
Despite plaintiff's occupation and experience in dealing with horses, we agree with Supreme Court that she was not involved in an athletic or entertainment-related activity at the time of the accident. Therefore, the doctrine of primary assumption of risk is not applicable to totally insulate defendants from liability (see, e.g., Corrigan v...
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