Plaintiff Millan was injured when a horse she was riding during a lesson spooked when the defendant Eric Janelli shook a plastic sheet near the arena. Eric was not an employee of defendant Brown, but was regularly on the property. Under those circumstances, the farm may be liable for actions of a non-employee. So plaintiff gets the opportunity to prove liability in a trial.
The plaintiff Colleen A. Millan (hereinafter the injured plaintiff) was injured in the course of taking a riding lesson when her horse suddenly took off in an uncontrollable gallop. It appears from the deposition testimony of the injured plaintiff, the instructor, and two eyewitnesses that the horse "spooked" when the defendant Eric Janelli, who was preparing a horse trailer parked alongside the riding ring, shook a vinyl tarp and created a "loud * * * crackly" noise. The plaintiffs commenced this action against the horse farm where the lesson was being given, Brookville Farms, Ltd. (hereinafter Brookville), its owner, Paul Brown, the farm manager, Christine Janelli, her son Eric Janelli, and the riding establishment, Twin Gables Farm. Thereafter, Brookville and Paul Brown commenced a third-party action against the instructor, Suzanne Phillips d/b/a Twin Gables Farms, and against her individually, alleging claims involving negligence and breach of contract.
The Supreme Court correctly denied the cross motion of Brookville and Brown. While the injured plaintiff assumed the risk of falling off a horse, she did not assume the risk created by the alleged reckless conduct of the defendant Eric Janelli, who, it is alleged, should have exercised greater caution under the circumstances, given his experience and knowledge of horses (see Morgan v. State of New York, 90 N.Y.2d 471, 662 N.Y.S.2d 421, 685 N.E.2d 202; Gahan v. Mineola Union Free School Dist., 241 A.D.2d 439, 660 N.Y.S.2d 144). A triable issue of fact exists as to whether the actions of Eric Janelli, although not an employee of Brookville or Brown, could be attributed to the owners of the farm. There was testimony that Eric Janelli was present on the property on a continuing and regular basis with the knowledge and acquiescence of the owners.
The Supreme Court correctly dismissed the negligence cause of action asserted against the third-party defendants. The deposition testimony showed no negligence on the part of the third-party defendants.
The Supreme Court, however, erred in dismissing the cause of action based on breach of contract asserted against the third-party defendants. The third-party defendants leased the property from Brookville. Pursuant to the lease, the third-party defendants agreed to obtain a waiver or release from their students. No waiver was obtained from the injured plaintiff; hence, Brookville and Brown sought indemnification from them for their alleged breach. On appeal, the third-party defendants contend that a waiver would have served no practical purpose because any waiver would have been void or unenforceable as against public policy pursuant to General Obligations Law § 5-326. This contention is without merit. The plaintiff paid a $30 instruction fee directly to the defendant Suzanne Phillips for the lesson and was injured while taking a riding lesson. On these facts, the riding establishment was not a "place of amusement or recreation" within the meaning of General Obligations Law § 5-326 and hence, had a waiver been obtained, such a waiver would not have been rendered void under the statute (see Bufano v. National Inline Roller Hockey Assn., 272 A.D.2d 359, 707 N.Y.S.2d 223; Stuhlweissenburg v. Town of Orangetown, 223 A.D.2d 633, 636 N.Y.S.2d 853; Baschuk v. Diver's Way Scuba, 209 A.D.2d 369, 618 N.Y.S.2d 428; Salazar v. Riverdale Riding Corp., 183 Misc.2d 145, 701 N.Y.S.2d 878).
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