Rubenstein by Rubenstein v. Woodstock Riding Club Inc.

• Decision Date: 27 October 1994
• Citation: 208 A.D.2d 1160,617 N.Y.S.2d 603
• Parties: Samara RUBENSTEIN, an Infant, by Neil RUBENSTEIN, Her Father and Natural Guardian, et al., Respondents, v. WOODSTOCK RIDING CLUB INC., Appellant, et al., Defendants. (And Two Third-Party Actions.)
• Court: New York Supreme Court — Appellate Division

Page 603

617 N.Y.S.2d 603

208 A.D.2d 1160

Samara RUBENSTEIN, an Infant, by Neil RUBENSTEIN, Her Father and Natural Guardian, et al., Respondents, v. WOODSTOCK RIDING CLUB INC., Appellant, et al., Defendants (And Two Third-Party Actions.)

Supreme Court, Appellate Division,

Third Department.

Oct. 27, 1994.

Roemer & Featherstonhaugh P.C. (Robert W. Flynn, of counsel), Albany, for appellant.

Jaroslawicz & Jaros (Robert J. Tolchin, of counsel), New York City, for respondents.

Before MIKOLL, J.P., and CREW, WHITE, YESAWICH and PETERS, JJ.

WHITE, Justice.

Appeal from an order of the Supreme Court (Connor, J.), entered December 16, 1993 in Ulster County, which, inter alia, denied a cross motion by defendant Woodstock Riding Club Inc. for summary judgment dismissing the complaint and all cross claims against it.

On May 8, 1988, plaintiff Samara Rubenstein, then 12 years old, with her horse Flair entered a "Fitting and Showmanship" event at a horse show conducted by defendant Woodstock Riding Club Inc. (hereinafter Woodstock). Participants in this competition, who are on foot, are required to lead their horse around the ring at a trot and then bring it to a stop behind the other horses in a head-to-tail formation. The videotape of the event shows that Samara had difficulty in controlling her horse and was unable to stop it until it was directly behind Winsome, the horse owned by defendants L. Polcovar and Jane Polcovar. Samara's horse then nudged Winsome in the rear, causing Winsome to kick with his hind leg which struck and fractured Samara's left leg.

Thereafter, plaintiffs commenced this negligence action seeking damages and derivative losses. Following the pretrial depositions of the parties, defendants moved for summary judgment. Supreme Court denied Woodstock's cross motion, finding that a question of fact existed as to whether it acted reasonably. This appeal ensued.

Woodstock's principal argument on appeal is that liability cannot be imposed upon it because Samara impliedly assumed the risk of her injury. As a general rule, participants in a sporting event or activity may be held to have consented to those injury-causing events which are known, apparent or reasonably foreseeable (see, Turcotte v. Fell, 68 N.Y.2d 432, 439, 510 N.Y.S.2d 49, 502 N.E.2d 964). An assessment of whether a participant assumed a risk depends on the openness and obviousness of the risks, the participant's skill and experience, as well as his or her conduct under the circumstances and the nature of the defendant's conduct (see, Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 657, 543 N.Y.S.2d 29, 541 N.E.2d 29; Wertheim v. United States Tennis Assn., 150 A.D.2d 157, 540 N.Y.S.2d 443, lv. denied 74 N.Y.2d 613, 547 N.Y.S.2d 846, 547 N.E.2d 101; see also, Lamey v. Foley, 188 A.D.2d 157, 594 N.Y.S.2d 490).

Here, Samara, who had taken lessons on how to handle, show and ride horses for 1 1/2 years before the accident, acknowledged that she had always known that sh...