The 12 year old plaintiff was injured while on a trail ride at a summer camp. Her father sued the camp, which defended on the ground it was immune from liability under the Tennessee Equine Activity Statute. The trial court agreed with the camp.
The Court of Appeals agreed with the trial court. The conduct in this case
was clearly covered by the statute, so the camp wins.
The pivotal issue on this appeal is whether or not Plaintiff's claim for personal injuries falls within the exceptions to immunity from liability for damages resulting from equine activities pursuant to T.C.A.s 44-20-101, et seq. We hold it does not, and affirm.
In July, 1993, the Plaintiff-Appellant, Ashley Cave, a minor 12 years of age, attended summer camp at the Defendant-Appellee's Wesley Woods, United Methodist Outdoor Ministries, Inc., camp (Wesley Woods). Part of the special activities at the camp was to learn how to handle, take care of, and ride horses. In order for youngsters to participate in this activity it was necessary for them to pay an extra $ 35 fee. It was also necessary for the child's parents or guardian to sign a consent for the child to participate in the activity and to also sign a release releasing Wesley Woods from any liability for personal injuries received by the child. Horses and tack for riding were furnished by the Defendant, Davey Crockett Stables. Riding instructors were furnished by both Wesley Wood and Davey Crockett. Ashley's father, Plaintiff-Appellant Bill Cave, paid the additional fee and signed the consent and release for Ashley to participate in the equine activities.
It appears the horseback riding included a number of youngsters, accompanied by three of their instructors, riding in single file on long trails. Davey Crockett required the youngsters to sign releases, releasing it from any claims for personal injuries received while participating in equine activities. On July 8, while on a trail ride with about 10 other youngsters, Ashley's horse came in contact with a tree, pinning her leg between the body of the horse and the tree, resulting in injuries to her knee.
Ashley's father, Bill Cave, filed suit on her behalf for personal injuries and in his own right for medical expenses. The complaint alleged the Defendants were negligent in failing to provide a safe environment for horseback riding, furnishing improperly trained horses, failing to have properly trained counselors, failing to provide medical care, failing to provide an adequate trail for riding, and forcing Ashley to ride where she didn't want to ride.
The Defendants filed a motion for summary judgment, saying they were exempt from liability under the Tennessee Equine Activities Act, T.C.A. s 44-20-101, et seq. In support of their motion, the Defendants filed affidavits of the owner of Davey Crockett and five other employees of Davey Crockett and Wesley Woods showing the provisions of T.C.A. s 44-20-101, et seq., had been complied with by the Defendants.
The Plaintiffs, in response to the motion, filed the affidavit of Ashley and insisted the Defendants were liable under T.C.A. s 44-20-104(B).
Upon the hearing, the court found the record failed to support Plaintiffs' insistence, and sustained the motion.
The Plaintiffs have appealed, saying the court was in error. We cannot agree, and affirm for the reasons hereinafter stated.
The Equine Activities-Liability Act was enacted in 1992. We have been cited to no cases, nor have we found any, where the provisions of the act have been at issue in this jurisdiction. T.C.A. s 44-20-101 provides:
Legislative findings and intent.--The general assembly recognizes that persons who participate in equine activities may incur injuries as a result of the risks involved in such activities. The general assembly also finds that the state and its citizens derive numerous economic and personal benefits from such activities. It is, therefore, the intent of the general assembly to encourage equine activities by limiting the civil liability of those involved in such activities.
T.C.A. s 44-20-103 provides:
Limitation on liability for injury or death of participant.--Except as provided in s 44-20- 104, an equine activity sponsor, an equine professional, or any other person, which shall include a corporation or partnership, shall not be liable for an injury to or the death of a participant resulting from the inherent risks of equine activities. Except as provided in s 44-20-104, no participant or participant's representative shall make any claim against, maintain an action against, or recover from an equine activity sponsor, an equine professional, or any other person for injury, loss, damage, or death of the participant resulting from any of the inherent risks of equine activities.
The pertinent definitions under the act are set forth in T.C.A. s 44-20-102 as follows:
Definitions.--As used in this chapter, unless the context otherwise requires:
(1)(A) "Engages in an equine activity" means riding, training, ...
* * *
(2) "Equine" means a horse, pony, mule, donkey, or hinny;
(3) "Equine activity" means: ... .
(B) Equine training or teaching activities, or both;
* * *
(E) Rides, trips, hunts, or other equine activities of any type, however informal... .
* * *
(6) "Inherent risks of equine activities" means those dangers or conditions which are an integral part of equine activities, including, but not limited to:
(A) The propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around them;
* * *
(D) Collisions with other equines or objects; and
(E) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within the participant's ability.
It is the insistence of the Defendants they are exempt from liability under the provisions of the Code quoted above. The Plaintiffs, however, insist Defendants are not entitled to the exemptions from liability as above set forth because they fall within the exclusions set out in T.C.A. s 44-20-104, which, as pertinent, provide:
Nothing in s 44-20-103 shall prevent or limit the liability of an equine activity sponsor, an equine professional, or any other person if the equine activity sponsor, equine professional, or person:
* * *
(B) Provided the equine and failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity and determine the ability of the participant to safely manage the particular equine based on the participant's representations of the participant's ability;
* * *
(3) Commits an act or omission that constitutes willful or wanton disregard for the safety of the participant, and that act or omission caused the injury; or
(4) Intentionally injures the participant.
In support of their contention that the Defendants fall within the exclusions of the statute, Plaintiffs rely upon the affidavit of Ashley which, as pertinent, says:
Heather (Widick, who was a trainer for Davey Crockett), the leader of the group from Davey Crockett Stables, began to lead us up the side of a mountain. The trail we were on was very narrow, unlike the trails on which we had previously ridden. I was scared and told Heather that I would rather not go up the trail. Heather's reply to me was that I should not worry because my horse would follow directly in line with the others and there would be no danger. Two other counsellors from Camp Wesley Woods were present during my conversation with Heather. While going up the mountain, my horse began to fall behind the others. Suddenly, the horse lurched forward into a gallop and ran me directly into a tree crushing my leg.
It is observed Ashley's injuries were received under circumstances expressly defined under s 44-20-101(6)(A) and (D) and (E), the behavior of the horse as described in (6)(A), and the collision with an object as set forth in (6)(D). Also, if it can be said Heather Widick or the other counselors who were present were guilty of negligence which in some manner contributed to Ashley's injuries under s 44-20-104(3), then their act or omission must have constituted a "willful or wanton disregard for the safety" of Ashley or, under (4), "intentionally".
The Appellants argue the Defendants were in violation of s 44-20-104(B) in failing to make a reasonable and prudent effort to determine the ability of Ashley to engage safely in equine activity. Although Appellants argue this in their brief, they cite us to nothing in the record to support the argument. The trial court, in addressing this same argument of the Plaintiffs, said: "In this case, the Plaintiff -- the Plaintiff's position is that T.C.A. 44-20- 104B1B and BB3 are the exceptions that apply to this particular case. The Court is of the opinion and finds that the record fails to support -- to factually support an exception as provided for in either or both of those two sections of the Tennessee code, and accordingly, is of the opinion that the motions are well-taken and are granted." We agree with the trial court.
In Buckner v. Varner, 793 S.W.2d 939 (Tenn.App.1990), in addressing an unsupported argument in a summary judgment case, this court said, at 941:
In the case of Fowler v. Happy Goodman Family, 575 S.W.2d 496 (Tenn.1978), our supreme court, in addressing the issue of what a plaintiff or defendant must do to withstand a motion for summary judgment, speaking through Justice Harbison, said:
A motion for summary judgment goes to the merits of the litigation. One faced with such a motion may neither ignore it nor treat it lightly. As stated in Rule 56.05, T.R.C.P.: "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
The Appellants having failed to establish the Defendants are excluded from the provisions of s 44-20-103, the judgment of the trial court is affirmed. The cost of this appeal is taxed to the Appellants and the case is remanded to the trial court for any further necessary proceedings.
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