University of Vermont AAHS

Tindall v. Ellenberg

 

New York Supreme Court, Appellate Division
281 A.D.2d 225, 722 N.Y.S.2d 16
March 13, 2001

 

Summary of Opinion

Plaintiff Tindall was injured when kicked by the defendant’s horse in a fox hunt. The trial court granted defendant’s motion for summary judgment, but the plaintiff appealed. The Appellate Division affirmed the trial court, holding that defendant assumed the risk of injury by participating in the hunt, that the defendant’s horse had the customary red ribbon on its tail to identify its tendency to kick, and that the plaintiff had signed a release of liability regarding the hunt.

 

Text of Opinion

Order, Supreme Court, New York County (Louis York, J.), entered on or about May 5, 2000, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff asserts that she sustained personal injuries when, participating in a fox hunt, defendant's horse kicked as plaintiff was attempting to pass it, causing plaintiff to fall from her horse. Plaintiff argues that she did not assume the enhanced risk of defendant's recklessness. However, the offending horse was clearly marked for its propensities with a red tail ribbon in conformity with the custom of the sport. The risk that defendant's horse would kick if crowded was not a unique danger over and above the usual dangers inherent in this sport, and should, as a matter of law, have been appreciated by plaintiff (see, Morgan v. State of New York, 90 N.Y.2d 471, 484-485, 486; Maddox v. City of New York, 66 N.Y.2d 270, 279; Saravia v. Makkos of Brooklyn, 264 A.D.2d 576). We note the release and waiver of liability signed by plaintiff in which she acknowledged that cross-country horseback riding and fox hunting are "inherently dangerous and unpredictable activities" and that she was voluntarily assuming all risk of injury.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. CLERK


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