Summary
reversing the trial court's grant of summary judgment where "there exists a question of fact as to whether the plaintiff assumed the increased risk of riding on a horse at a cantering pace after being told that the horse would only travel at a walking pace"
Summary of this case from Pryce v. Town Sports Int'l, LLCOpinion
June 1, 1998
Appeal from the Supreme Court, Suffolk County (Doyle, J.).
Ordered that the order is reversed, with costs, the defendants' motion for summary judgment is denied, and the complaint is reinstated.
The plaintiff testified that prior to going horseback riding with her friends at a ranch owned by the defendant Deep Hollow Ltd. she informed the trail guide who was to lead the group about her inexperience in the sport. The guide assured the plaintiff that there would be no problem because the horses would be kept to a walking pace. Although the ride started at a walking pace, the plaintiff stated that the guide later caused the pace to be increased to a faster pace known as a "canter", at which time the plaintiff fell and sustained injury.
It is well settled that "by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" ( Morgan v. State of New York, 90 N.Y.2d 471, 484; see also, Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650; Turcotte v. Fell, 68 N.Y.2d 432; Rubenstein v. Woodstock Riding Club, 208 A.D.2d 1160). However, participants will not be deemed to have consented to the risk of intentional or reckless acts ( see, Turcotte v. Fell, supra, at 439). Nor do they assume the risk of conduct which creates a dangerous condition over and above the usual dangers inherent in the sport ( see, Owen v. R.J.S. Safety Equip., 79 N.Y.2d 967).
In the case at bar, there exists a question of fact as to whether the plaintiff assumed the increased risk of riding on a horse at a cantering pace after being told that the horse would only travel at a walking pace. Accordingly, the motion for summary judgment was improperly granted ( see, Morgan v. State of New York, supra, at 488-489).
Mangano, P. J., Thompson, Santucci and Altman, JJ., concur.