University of Vermont AAHS

Bothell v. Two Point Acres


Arizona Court of Appeals
192 Ariz. 313, 965 P.2d 47
February 26, 1998


Summary of Opinion

Plaintiff’s 10 year old girl, Keely, was taking riding lessons after school. Her parent signed a release from liability form in order for her to participate in the riding program. Although Keely ordinarily rode a horse named Satin on the day of the injury she rode another horse because Satin was lame. After the ride, she obtained permission to take Satin from a corral for grazing. She caught Satin in a corral in the company of an unbroken horse. As she was leaving the corral with Satin’s lead rope around her hand, the other horse interfered causing the lead rope to tighten and severely injure Keely.

The trial court granted summary judgment for the stables on the ground the right to sue had been released when the parent signed the release from liability form and on the ground that the Arizona Equine Activity Statute precluded suit.

The Court of Appeals disagreed with those decisions. As to the release from liability form, the Court interpreted it so that a jury might or might not find that it covered only mounted accidents and not ground injuries. Therefore, summary judgment without trial could not be based on the release from liability form alone.

As to the Equine Activity Statute, the court said that statute did not apply to this accident because Keely had not yet taken control of the horse at the time of the accident and the statute dealt only with injuries when the person had taken control of the horse. Therefore, the Court of Appeals sent the case back to the trial court for a trial to determine whether the stables was liable for this injury.


Text of Opinion

In this personal injury action, plaintiffs/appellants appeal from the trial court's entry of summary judgment for defendants/appellees and from its order denying plaintiffs' cross-motion for partial summary judgment. We vacate the summary judgment for defendants and direct the trial court to enter partial summary judgment for plaintiffs on defendants' statutory immunity claim.


On appeal from a grant of summary judgment, we view all facts and reasonable inferences therefrom in the light most favorable to the party against whom judgment was entered. Prince v. City of Apache Junction, 185 Ariz. 43, 912 P.2d 47 (App.1996). Plaintiff Akilah "Keely" Bothell, who was ten years-old at the time in question, was enrolled in an after- school horse riding/care program with defendant Rio Rico Stables one afternoon per week with several other children. The program, supervised by defendant Mary Barratt, began for that group in the fall of 1994. On October 22, 1994, Keely and her father, plaintiff Ken Bothell, signed a preprinted release that defendants required program enrollees to execute. The release, a copy of which we append to this opinion, provided in part:

Keely was injured on March 15, 1995, after the children had finished their ride and were grooming and feeding their horses. Because her regular horse (Satin) was lame, Keely had ridden another horse that day. After the ride, Keely asked Mary Barratt if she (Keely) could take Satin from a nearby corral to a grassy area to eat. According to Keely, Mary Barratt allowed her to do so. Mary Barratt directed Keely to get a halter and lead rope for Satin, which Keely then did.

In the corral with Satin was a young horse which had not been fully trained. Keely went by herself into the corral and placed the halter and lead rope on Satin. She then walked Satin to the corral gate and climbed through the fence to open the gate from the outside. When Satin started to walk away, Keely wrapped the lead rope around her left hand. The other horse in the corral then approached Satin, hit the rope, apparently became scared and ran through it. That caused the rope to tighten around Keely's hand, seriously injuring it.

In their complaint, plaintiffs alleged, inter alia, negligent supervision, training and instruction of business invitees like Keely. Defendants moved for summary judgment based on the release and A.R.S. s 12- 553, which immunizes equine owners from liability under certain prescribed circumstances. Plaintiffs opposed the motion and moved for partial summary judgment, contending that both s 12-553 and the release are inapplicable to the facts at issue, and that the release "is vague and therefore void." The trial court granted defendants' motion and denied plaintiffs' cross-motion. This appeal followed the trial court's entry of judgment for defendants.


I. Jurisdiction


II. Standard of Review

On appeal from a summary judgment, we must determine de novo whether there are any genuine issues of material fact and whether the trial court erred in applying the law. Prince. In addition, issues involving statutory interpretation and whether a release form automatically exempts a defendant from liability are questions of law subject to this court's de novo review. Id.; Sirek v. Fairfield Snowbowl, Inc., 166 Ariz. 183, 800 P.2d 1291 (App.1990).

III. Summary Judgment

Plaintiffs contend that neither the release that Keely and her father signed nor s 12-553 applies under the facts of this case to bar defendants' liability as a matter of law. Plaintiffs further assert that basing summary judgment for defendants on the release violates article XVIII, s 5, of the Arizona Constitution, because it conclusively "attempt[s] to advance the defense of assumption of the risk." We agree with the first contention and therefore do not address the second.

A. The Release

A prospective exculpatory covenant like defendants' release must be strictly construed against the party seeking to enforce it. Morganteen v. Cowboy Adventures, Inc., --- Ariz., ----, 949 P.2d 552 (App.1997); Sirek. Indeed, Arizona courts view such provisions with disfavor:

Salt River Project Agric. Inprov. & Power Dist. v. Westinghouse Electric Corp., 143 Ariz. 368, 383, 694 P.2d 198, 213 (1984) (citations omitted). See also Maurer v. Cerkvenik-Anderson Travel, Inc., 181 Ariz. 294, 298, 890 P.2d 69, 73 (App.1994), quoting Salt River Project, 143 Ariz. at 382, 694 P.2d at 212 ("Attempts to release oneself from liability by contract for harm caused by one's own negligence are not looked upon with favor. 'This would tend to encourage carelessness.' ").

At the time of her accident, Keely was not riding a horse, or preparing or attempting to ride a horse. Nor was she engaged in conduct directly relating to horse-riding activities, such as mounting or dismounting a horse or taking its reins. Rather, Keely was injured after finishing her ride and while engaged sometime later, allegedly with Mary Barratt's knowledge and permission, with a totally different horse (Satin) in a separate activity unrelated to riding. The gist of plaintiffs' claim is negligent supervision of that distinct activity.

By signing the release, Keely and her father acknowledged various risks associated with "horse riding or horse-drawn activity," including risk of injury "from approaching, handling, mounting, riding and dismounting the horse or horse-drawn vehicle." They further acknowledged that "participation in activities in the presence of horses always involves an element of risk;" "[u]pon mounting, and taking up the reins," the rider is "in primary control of the horse;" "horse riding or horse-drawn vehicle activity will be across open range and through brush-covered wilderness;" and "horses are not completely predictable, and any horse can on occasion become frightened or upset, so as to rear up and run away." Plaintiffs contend that despite those acknowledgements in the release, its own terms specifically released defendants only from all responsibility for injuries a rider may receive "from the horse riding or horse- drawn vehicle activity," and that Keely was not involved in any such activity at the time of her injury. Because the release also describes "horse riding or horse-drawn activity" as including risks of injury "arising from approaching [and] handling" a horse, however, reasonable minds may differ on whether the release covers the specific activity in which Keely was engaged at the time of the accident.

The parties' testimony in this case illustrates that dichotomy. Consistent with plaintiffs' limited interpretation of the release language, Mr. Bothell testified in his deposition that he signed the release "basically thinking that if something happened to my daughter while she was on a horse or riding that I would not or could not hold Mary Barret [sic] responsible for it." In contrast, Mrs. Barratt understood the release to cover risks of injury from "[h]orse activities of any kind that involves a horse."

Although we disagree with plaintiffs' contention that "[i]t is merely a fortuity that the accident involved a horse," a trier of fact reasonably may find that the activity in which Keely was engaged and which caused her accident is outside the scope of defendants' release. Conversely, a trier of fact may find that the release does cover the factual scenario in this case. In our view, the release here does not necessarily cover the non- horse-riding activity in which Keely was engaged, and which Mary Barratt allegedly permitted and failed to properly supervise, at the time of the accident. [FN5] Construing the release strictly, as we must, we hold it does not automatically apply to the facts of this case so as to bar liability as a matter of law. See Morganteen. If defendants wanted to insulate themselves from every claim relating to any aspect of their stable and horse operations, they "should have clearly and explicitly stated so in the ... agreement." Sirek, 166 Ariz. at 187, 800 P.2d at 1295. [FN6]

FN5. In her deposition, Mary Barratt acknowledged that it would have been inappropriate if she had allowed, or directed, Keely to go into a corral containing loose horses to halter Satin.

FN6. Although the release does not support summary judgment for defendants, it may be relevant, admissible, and appropriate for the trier's consideration in conjunction with defendants' affirmative defenses.

Valley National Bank v. National Ass'n for Stock Car Auto Racing, Inc. (NASCAR), 153 Ariz. 374, 736 P.2d 1186 (App.1987), relied on by defendants, is distinguishable and does not support summary judgment for them here. Unlike this case, NASCAR involved an appeal from a general defense verdict after a jury trial. The plaintiffs in that case, a former professional race car driver and his wife, signed several releases in order to gain access to the pit area at a racetrack. Although this court affirmed the judgment entered on the jury verdict and upheld the trial court's refusal "to hold the releases invalid as a matter of law" in NASCAR, id. at 379, 736 P.2d at 1191, we did not hold that the releases immunized the defendants from suit or automatically absolved them of liability as a matter of law. Rather, we concluded that conflicting evidence concerning the plaintiffs' execution and alleged lack of knowledge of the releases "created a question of fact for the jury." Id. See Morganteen (distinguishing NASCAR and holding that enforceability of riding stable's release, in case involving plaintiff who had been bucked off horse, involved factual questions precluding summary judgment). We reach a similar conclusion here.

B. Statutory Immunity

As they did in the trial court, defendants also rely on s 12-553 to support their position. That statute, enacted in 1994, provides:

"The primary rule of statutory construction is to find and give effect to legislative intent." Mail Boxes, etc. v. Industrial Comm'n, 181 Ariz. 119, 121, 888 P.2d 777, 779 (1995). We focus first on the statutory wording and, if it is ambiguous or inconclusive, we consider the statute's "context, subject matter, historical background, effects, consequences, spirit, and purpose." Id. at 122, 888 P.2d at 780. In addition, because s 12- 553 "limits common law liability to invitees, it must be strictly construed." Stramka v. Salt River Recreation, 179 Ariz. 283, 285, 877 P.2d 1339, 1341 (App.1994). See also Hayes v. Continental Ins. Co., 178 Ariz. 264, 872 P.2d 668 (1994); Walker v. City of Scottsdale, 163 Ariz. 206, 786 P.2d 1057 (App.1989).

The language of s 12-553 is not totally "clear and unambiguous." Hayes, 178 Ariz. at 268, 872 P.2d at 672. For example, the statute does not define or explain when a person is deemed to have "taken control" of an equine, [FN7] s 12-553(A)(1), nor does it indicate whether immunity is conditioned on a signed release that specifically and explicitly recites, verbatim, each of the acknowledgements referred to in s 12-553(C)(2). In view of those ambiguities, we consider other relevant factors in attempting to determine the statute's meaning and effect. Hayes.

FN7. As noted above, however, defendants' release states that a rider is "in primary control of the horse" "[u]pon mounting, and taking up the reins," activities in which Keely was not engaged at the time of her accident.

Section 12-553 emanated from House Bill (H.B.) 2425 in the 1994 second regular legislative session. According to minutes of the House Judiciary Committee, the bill's sponsor stated "the equine industry feels threatened by lawsuits" and further remarked, "[w]ith this bill, if a release is signed, individuals are responsible for their own actions once they have taken control of the equine animal." [FN8] The legislative committee minutes do not elaborate further on the bill's intended scope.

FN8. We may take judicial notice of minutes of legislative committee hearings. Hayes. Interestingly, the committee chairman reportedly said the bill "attempts to raise the standard of liability," but further stated, inaccurately, that "[i]f it can be proven that an owner or agent was negligent, that person can still be held liable."

A Senate "Fact Sheet" relating to H.B. 2425, prepared by Senate staff almost two weeks after the legislature had passed the bill and three days after the governor had signed it, defined the bill's purpose as follows: "Provides limited liability for owners or agents of equines who allow another person to take control of the equine and it results in injury or death to the person." The Fact Sheet also furnished the following limited background on the bill: "An increase in liability lawsuits and the current cost of liability insurance has created a deterrence for some owners and agents of equine activities to continue with those activities. H.B. 2425 limits the liability of a[sic] equine owner or agent for injuries and deaths that occur when the equine is under the control of another person." Assuming the Fact Sheet is relevant to our search for legislative intent, it sheds some light on the statute's purpose, context, historical background and subject matter. Viewed in their entirety, however, the available legislative materials relating to s 12-553 are of limited help in determining the intended scope or effect of the statute. [FN9]

FN9. A Senate floor amendment to the bill, initially adopted but later removed, conditioned enactment of the statute on Arizona's electorate voting to amend article II, s 31 and article XVIII, ss 5 and 6 of Arizona's Constitution (tort reform referendum) at the next general election.

We also have examined the scant legislative records of the first regular session of 1993, in which a similar bill (H.B.2297) was first introduced but not passed. Unlike s 12-553, H.B. 2297 provided, with specified exceptions, that any "equine activity sponsor, equine professional or other person is not liable for an injury to or the death of a participant that results from the inherent risks of equine activities," and specifically defined "equine activity" and "inherent risks of equine activities." In any event, the bill was defeated in a Senate committee.

In sum, the parties have not furnished us with, nor have we found, any relevant legislative records indicating an intent to immunize stable owners from claims for negligent supervision, like plaintiffs', which do not involve horseback riding or activities directly relating thereto. In our view, s 12-553 does not shield the defendants in this case from liability. Keely clearly had not taken control of the horse which apparently caused her injury. Assuming arguendo Keely had "taken control" of the other horse (Satin) when her injury occurred, s 12-553(A)(1), and further assuming defendants' release complies with the statutory definition in s 12-553(C)(2), we find the statute inapplicable to the non-riding activities in which she was engaged at the time of this particular accident.

As plaintiffs point out, "it would not make sense to require proper installation of suitable tack, or assignment of an equine suitable to the rider's skill and experience, if the statute applied to non-riding situations." s 12-553(A)(3), (4). We do not read s 12-553 as providing blanket immunity for a stable operator, regardless of how, when, and where one of its customers is injured by a horse. Accordingly, the statute does not bar liability against defendants or support summary judgment for them in this particular case.


We vacate the summary judgment for defendants, direct the trial court to enter partial summary judgment in favor of plaintiffs as to defendants' immunity claim under s 12-553, and remand for further proceedings consistent with this opinion. Finally, assuming A.R.S. s 12-341.01 applies to this case, see Sirek, in our discretion we deny plaintiffs' request for attorney's fees on appeal.

ESPINOSA and HOWARD, JJ., concur.

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