Plaintiff Hurwitz was killed when riding her horse newly purchased from defendant. The trial court granted defendant’s motion for summary judgment on the ground no legal case against the defendant had been shown. In this opinion, the Court of Appeals affirms that decision. It dismissed plaintiff’s claim that defendant should have warned her not to ride without a helmet with the comment that riding a horse without a helmet is such an obvious risk that the defendant had no duty to warn.
Assured by the defendant William Strain that "Charlie" was a horse of mild disposition, suitable for a novice rider, the plaintiff's decedent, Sharon Lukas, purchased him together with suitable harness and saddle equipment. A bill of sale dated April 29, 1995, finalized the transaction. Tragically, on May 7, 1995, on her second ride, Lukas was thrown from the horse and subsequently died from her injuries. The plaintiff, Stuart Hurwitz, commenced this action in the Superior Court seeking damages for Lukas's wrongful death alleging negligence (as presently material), misrepresentation, breach of express and implied warranties under G.L. c. 106 and violation of the Massachusetts consumer protection law, G.L. c. 93A. [FN4] The defendants moved for summary judgment on the ground that there was no evidence that the defendant sellers knew or should have known of the horse's dangerous propensities. After reconsideration was denied, the plaintiff appealed. We affirm.
FN4. Lukas's mother also brought a claim for loss of consortium. The defendant's liability insurer, Markel Service, Inc., doing business as Markel Underwriting and Brokers, was also named as a defendant. That claim was stayed pending resolution of the underlying case, and no issue appears in the appeal with respect to the insurer. A separate and final judgment was imposed pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 821 (1974).
Facts. Lukas had told Strain that she was a beginning rider, and Strain assured her that Charlie, an older, well-trained horse, was the right horse for her. (A.I:67, 70) Lukas purchased Charlie for $4,500, and was told by Strain that he would give her "all the equipment [she]'ll need." (A.I:31, 75) The bill of sale enumerated the equipment furnished, e.g., Western saddle, bridle, bit. (A.I:31) The horse had been purchased by Strain on April 7, 1995. (A.I:119) Lukas was not given a helmet by Strain, nor was she told to wear a helmet. (A.IV:881)
On May 1 or 2, 1995, Lukas returned to the stables and spent one to two hours riding Charlie without incident, as on prior occasions numerous of Strain's other customers had. (A.I:131) On May 3, 1995, the horse was delivered to BJ's, the stables where Lukas would board him. (A.I:131) The veterinarian who examined Charlie prior to the sale, Patricia Kuzmickas, testified that he gave her better than average cooperation during the examination, and opined that there was nothing about him to make him unsuitable for a beginning rider. (A.189, 194) Kuzmickas described Charlie as "well broken," and stated that he appeared to be easily controlled. (A.II:479, 480)
When the horse was delivered to BJ's he was stumbling. (A.II:302) The owner of BJ's, Elizabeth Joseph, was giving Lukas a course on how to take care of a horse but had never instructed her on how to saddle a horse. (A.III:521, 581) At some point, she told Lukas that when students take riding lessons it was imperative that they wear helmets for protection. (A.III:576) She characterized Charlie as not ill-mannered or dangerous in his stall. (A.III:608-609)
On May 7, 1995, Lukas and the plaintiff went to BJ's to ride the horse back home. Lukas saddled the horse herself and rode the horse out the driveway onto a road, followed by the plaintiff in his car. (A.II:327) She made a right turn onto another street, and at some point the horse turned around and starting picking up speed. (A.II:335) Lukas was thrown from the horse. (A.II:340) She died several days later of a head injury. (A.II:500) The horse returned to the stable on his own. (A.II:343)
Analysis: If the pleadings and affidavits before the judge "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law," summary judgment is appropriate. Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). Once a motion for summary judgment is made, and is supported by affidavits to establish the absence of a triable issue, the party opposing the motion must respond and allege specific facts establishing the existence of a material fact to defeat the motion. Doe v. Liberty Mut. Ins. Co., 423 Mass. 366, 368 (1996). The "adverse party may not rest upon the mere allegations or denials of his pleading." Mass.R.Civ.P. 56(e), 365 Mass. 824 (1974).
Those issues material to the plaintiff's claim include: (1) whether Strain knew or should have know that Charlie was not a suitable horse for a beginning rider, see Copeland v. Draper, 157 Mass. 558, 559-560 (1893); Webber v. McDonnell, 254 Mass. 387, 389 (1926); and (2) whether Strain made any false representation of fact that inclined Lukas to purchase him. Graphic Arts Finishers, Inc. v. Boston Redev. Authy., 357 Mass. 40, 44 (1970). As the motion judge recognized, the false representation claim depended upon the extent of Strain's knowledge concerning Charlie's temperament prior to the sale.
On this issue, we look to the documentary evidence accompanying the motion, and that offered in opposition by the non-moving party, submitted prior to the judge's decision. Even if we were to consider Karen Emirzian's deposition, which was filed in support of the plaintiff's reconsideration motion, the case fares no better. Emirzian states that at the time Charlie was brought to her horse farm--several weeks after Lukas's death--he exhibited violent, destructive, and unmanageable behavior. She opined that he was a "very aggressive and devious horse ... wholly unsuitable for a beginner rider." (A. II:499; IV:960-963, 969-970, 979-985, 1030) With the exception of paragraph eight (stricken by the judge because of rank speculation that the scars on Charlie's face and his broken teeth were indications of maltreatment by a prior owner or owners), the judge did consider Emirzian's affidavit. However, he concluded that the affidavit failed to establish that prior to the April 29, 1995, sale Strain possessed the requisite knowledge upon which actionable claims could be based. Once Strain had established that no one who rode Charlie prior to the accident encountered any difficulty controlling him or observed problems with his temperament (A.IV:894), the burden shifted to the plaintiff, as the opposing party, to provide some record support for her position that, in fact, the horse was unsuitable to ride before the accident. Eastman v. Scott, 182 Mass. 192, 194 (1902). See Dix v. Somerset Coal Co., 217 Mass. 146, 148 (1914).
In particular, the misrepresentation claim fails because the plaintiff did not establish that at the time of the sale Charlie was unsuitable for a beginning rider. See O'Connor v. Judith B. and Roger C. Young, Inc., No. C-93-4547 DLJ, 1995 W.L. 415138, at 6 (N .D.Cal. June 30, 1995) (horse's poor behavior thirty days after sale not sufficient to support warranty and misrepresentation claims against seller). Changes that Charlie may have undergone after the sale cannot support a warranty or misrepresentation claim. Andrews v. Peck, 83 Conn. 666, 668-669 (1910). (A.IV:897-898). Assuming that Strain's statement, that the purchase price of the horse included "all the equipment that you'll need," meant providing a helmet, that promise would be superseded by the April 29, 1995, bill of sale.
As to the plaintiff's contention that Strain was negligent in failing to warn Lukas that she should wear a helmet, the judge correctly concluded that riding a horse without one was such an obvious risk that, as a matter of law, no actionable duty arose. See Thorson v. Mandell, 402 Mass. 744, 749 (1988); Sweet v. Cieslak, 23 Mass.App.Ct. 908 (1986). In any event, there is no proof in the summary judgment materials that Strain mentioned anything about selling a helmet or other types of safety equipment. (A.128)
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