University of Vermont AAHS

TRUMMER v. NIEWISCH

Supreme Court, Appellate Division, 2nd  Dept., New York

792 N.Y. 2d 596

 

April 4, 2005

Summary of opinion 

Plaintiff was injured during a riding lesson.  He had executed a release two years before.  Even though this court finds the release insufficiently clear it holds in favor of the defendant.  The court found that the defendants fall was not the result of negligence but was a risk inherent in the activity. 

Text of opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Nastasi, J.), dated December 8, 2003, which granted the motion of the defendants Reiner N. Niewisch, d/b/a R.N. Equestrian Services and the separate motion of the defendants River Run Farm, LLC, C.M. Enterprise, LLC, and Christine Meister for summary judgment dismissing the complaint.

 

 ORDERED that the order is affirmed, with one bill of costs payable to the defendants appearing separately and filing separate briefs.

 

On June 2, 2002, the plaintiff Michelle Trummer allegedly was injured when she fell from a horse during her riding lesson at the premises operated by the defendant River Run Farm, LLC. At the time of the accident, she was under the supervision of her instructor, the defendant Reiner N. Niewisch, d/b/a R.N. Equestrian Services.  Nearly two years earlier, in August 2000, the injured plaintiff had executed a "Release, Waiver, and Hold Harmless Agreement" (hereinafter the release) in which she agreed, inter alia, to "release, waive, discharge, and relinquish any and all claims, actions(s) [sic] or cause of action(s) [sic] of whatever kind" against the defendants.  The defendants successfully moved for summary judgment based on the language of the release and on the further ground that the injured plaintiff had assumed the risk that resulted in her injury.

 

Contrary to the defendants' contention, the broad, sweeping language of the release was not sufficiently clear and specific to relieve them of liability arising from their own negligence.  "[A]greements to release from 'any and all responsibility or liability of any nature whatsoever for any loss of property or personal injury' " will not bar claims based on negligence (Gross v. Sweet, 49 N.Y.2d 102, 108-109, 424 N.Y.S.2d 365, 400 N.E.2d 306 [citation omitted];  see Alexander v. Kendall Cent. School Dist., 221 A.D.2d 898, 634 N.Y.S.2d 318;  Long v. State of New York, 158 A.D.2d 778, 779-780, 551 N.Y.S.2d 369;  Sivaslian v. Rawlins, 88 A.D.2d 703, 704, 451 N.Y.S.2d 307).  Nevertheless, the release is enforceable to the extent of insulating the defendants from liability for injuries resulting from a fall from a horse caused by reasons other than their negligence (see Conteh v. Majestic Farms, 292 A.D.2d 485, 486, 739 N.Y.S.2d 728).

 

Here, the defendants established their prima facie entitlement to judgment as a matter of law by showing that the injured plaintiff's fall was not due to any negligence on their part (see Conteh v. Majestic Farms, supra ), but rather, was caused by the horse becoming frightened, an inherent, usual, and ordinary risk associated with horseback riding and which the injured plaintiff had assumed (see Kinara v. Jamaica Bay Riding Academy, Inc., 11 A.D.3d 588, 783 N.Y.S.2d 636;  Becker v. Pleasant Val. Farms, 261 A.D.2d 427, 690 N.Y.S.2d 76).  In opposition, the plaintiffs failed to raise a triable issue of fact as to the defendants' negligence (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).  The affidavit submitted by the plaintiffs' expert was conclusory and unsubstantiated, and therefore insufficient to defeat summary judgment (see Ford v. Citibank, NA, 11 A.D.3d 508, 509, 783 N.Y.S.2d 622;  Nangano v. Mount Sinai Hosp., 305 A.D.2d 473, 474, 759 N.Y.S.2d 538).  Accordingly, the Supreme Court properly dismissed the complaint.

 

 792 N.Y.S.2d 596, 2005 WL 757881 (N.Y.A.D. 2 Dept.), 2005 N.Y. Slip Op. 02650

 


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