Opinion
October 27, 1994
Appeal from the Supreme Court, Ulster County (Connor, J.).
On May 8, 1988, plaintiff Samara Rubenstein, then 12 years old, with her horse Flair entered a "Fitting and Showmanship" event at a horse show conducted by defendant Woodstock Riding Club, Inc. (hereinafter Woodstock). Participants in this competition, who are on foot, are required to lead their horse around the ring at a trot and then bring it to a stop behind the other horses in a head-to-tail formation. The videotape of the event shows that Samara had difficulty in controlling her horse and was unable to stop it until it was directly behind Winsome, the horse owned by defendants L. Polcovar and Jane Polcovar. Samara's horse then nudged Winsome in the rear, causing Winsome to kick with his hind leg which struck and fractured Samara's left leg.
Thereafter, plaintiffs commenced this negligence action seeking damages and derivative losses. Following the pretrial depositions of the parties, defendants moved for summary judgment. Supreme Court denied Woodstock's cross motion, finding that a question of fact existed as to whether it acted reasonably. This appeal ensued.
Woodstock's principal argument on appeal is that liability cannot be imposed upon it because Samara impliedly assumed the risk of her injury. As a general rule, participants in a sporting event or activity may be held to have consented to those injury-causing events which are known, apparent or reasonably foreseeable (see, Turcotte v. Fell, 68 N.Y.2d 432, 439). An assessment of whether a participant assumed a risk depends on the openness and obviousness of the risks, the participant's skill and experience, as well as his or her conduct under the circumstances and the nature of the defendant's conduct (see, Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 657; Wertheim v. United States Tennis Assn., 150 A.D.2d 157, lv. denied 74 N.Y.2d 613; see also, Lamay v. Foley, 188 A.D.2d 157).
Here, Samara, who had taken lessons on how to handle, show and ride horses for 1 1/2 years before the accident, acknowledged that she had always known that she should never walk behind a horse. Moreover, her instructor stated that she instructed her pupils to maintain a 6- to 10-foot distance between horses because, if horses get too close, they may feel threatened and might kick. Woodstock's unchallenged proof is that, with regard to horse shows, there is always an inherent risk of being injured by a horse since they are large, strong animals that at times are unpredictable.
Applying the foregoing standards to these circumstances, we find as a matter of law that Samara, by participating in the horse show, assumed the risk of being injured by a horse (see, Sutfin v. Scheuer, 74 N.Y.2d 697; Morales v. New York City Hous. Auth., 187 A.D.2d 295). Thus, Supreme Court erred in denying Woodstock's cross motion.
Finally, in view of the failure by plaintiffs' attorney to file a timely brief or request an extension, his failure to timely respond to inquiries from the Clerk's office and his failure to file the brief within two weeks as promised on June 13, 1994, we shall impose costs of $500 against him (see, 22 NYCRR 800.9 [d]).
Mikoll, J.P., Crew III, Yesawich Jr. and Peters, JJ., concur. Ordered that the order is modified, on the law, with costs of $500 to defendant Woodstock Riding Club, Inc. against plaintiffs' counsel, by reversing so much thereof as denied the cross motion of defendant Woodstock Riding Club, Inc.; cross motion granted, summary judgment awarded to said defendant and complaint and all cross claims dismissed against it; and, as so modified, affirmed.