On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1484-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Nugent and Kestin.
Plaintiff, Alexander Klyashtorny, appeals from the summary judgment dismissal of his complaint against defendant Black Brook Stables, LLC, d/b/a Pleasant Plains Farms, based on the Equine Activities Liability Act, N.J.S.A. 5:15-1 to -12 (Equine Act). Defendant operated an equestrian facility that offered riding lessons. After defendant's trainer rated plaintiff a "beginner," plaintiff took three riding lessons on a "beginner" horse, and was severely injured on May 26, 2007, when he fell or was thrown from the horse during the third lesson. He described the accident as follows:
I had a riding lesson. I got on the horse. I walked the horse probably once. There was a tractor working on the other side of the fence, gradually coming closer. And then I was asked to put the horse in a trot. And once the trotting horse reached the outside fence close to the tractor, it bolted and I fell off or was thrown off.
Plaintiff did not know what caused the horse to throw him, but thought the tractor affected the horse, because "the horse accelerated when she came in the vicinity of the tractor," and "there was no other activity or objects that [plaintiff] could think of that could potentially scare her."
Plaintiff produced the jointly authored report of recreational hazard expert John H. Hanst, and equestrian expert Erin Cosgrove, who opined that defendant negligently disregarded plaintiff's safety and caused the accident by failing to properly evaluate plaintiff's riding ability; failing to instruct plaintiff on how to handle a situation where the horse may spook; and permitting the riding lesson to take place in the vicinity of the tractor. The experts also rendered conclusory opinions that defendant violated the Equine Act.
On October 5, 2010, the trial court granted defendant's summary judgment motion, ruling that the Equine Act barred plaintiff's personal injury claims. The court found that there was no triable issue as to whether the accident fell within the exceptions to the immunity provided by the Equine Act.
We affirm substantially for the reasons explained by the trial court in its written decision. We add the following comments. The trial court erroneously concluded from plaintiff's testimony that the tractor was not owned by defendant and was being operated on land not owned by defendant. Defendant's routine operation of the tractor on its land does not alter the trial court's conclusion that the accident resulted from a risk designated in the Equine Act as a risk assumed by plaintiff. The Equine Act provides a complete defense and bar of suit against operators of equine facilities from injuries resulting from risks assumed by the participant. N.J.S.A. 5:15-5. Assumed risks include the propensity of an equine animal to behave in ways that result in injury; the unpredictability of an equine animal's reaction to sounds, sudden movement, and unfamiliar objects; and the potential of a participant to act in a negligent manner including failing to maintain control over the equine animal. N.J.S.A. 5:15-2a, b, and e.
The Equine Act also provides exceptions to the limitations on liability for operators, including "[a]n act or omission on the part of the operator that constitutes negligent disregard for the participant's safety, which act or omission causes the injury." N.J.S.A. 5:15-9d. However, a plaintiff cannot establish liability by "characteriz[ing] an injury caused by one of the expressly defined assumed risks in language designed to make it appear that in some fashion the injury arose through an act or omission of the operator." Hubner v. Spring Valley Equestrian Ctr., 203 N.J. 184, 206 (2010). That is precisely what plaintiff has attempted to do in this case. If read expansively, the exceptions "would threaten to upset the choice that the Legislature has made, because [such an approach] would potentially permit the exceptions to extinguish the statute's broad protective scope." Ibid.
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