New York State Court of Claims

New York State Court of Claims

SURACE v. THE STATE OF NEW YORK, #2001-016-207, Claim No. 101613, Motion Nos. M-63371, CM-63878


Defendant's motion to dismiss was denied and claimant's cross-motion for summary judgment was denied. Claimant alleged she was thrown from horse at SUNY course because of defendant's negligence in passing a riding crop in front of the horse, scaring it.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Alan C. Marin
Claimant's attorney:
Andrew J. Wigler, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: John M. Shields, AAG
Third-party defendant's attorney:

Signature date:
December 6, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is defendant's motion to dismiss the claim of Christina Surace on the grounds that it fails to state a viable cause of action against the state. Claimant cross-moves for summary judgment on liability. In the underlying claim, it is alleged that while attending a session of "Advanced Beginners Horsemanship" at the State University at Stonybrook, claimant "was caused to be thrown from a horse when the instructor/student instructor frightened said horse by using a crop therein . . . in an improper manner . . ." According to claimant, while her horse was standing still, she dropped her riding crop. A teaching assistant picked up the crop and passed it in front of the horse's face, frightening the horse, causing it to take off in a gallop, throwing claimant to the ground.

Defendant argues that it is protected from liability pursuant to: (1) the doctrine of assumption of risk, i.e., that Surace "assumed risks commonly associated with horseback riding, including . . . falling" and (2) an "Assumption of Risk Statement" signed by claimant prior to the class, which provided that she had "been fully and completely apprised of the actual and potential risks inherent in this activity. By signing the attached roster, I am asserting that I am knowingly and voluntarily assuming all such risks."[1]

Claimant argues that neither the doctrine of assumption of risk nor her signed statement apply because her injury was not the result of a risk inherent to horseback riding, but rather was caused by defendant's negligence in passing the crop before the horse's face.

Claimant relies on the deposition testimony of George Lukemire, the instructor of the class. Lukemire was not present at the time of the accident, but had trained the teaching assistant in question. Lukemire stated that prior to the accident, he had discussed with the assistant the use of a crop. Asked for the substance thereof, he said "most everybody connected with horses at this level knows this, it's just a matter of approaching the horse and . . be gentle with it and hand it to them gently and not just wing it at them . . ."
Asked whether a crop should be passed in front of the horse or to the side so the horse doesn't see it, Lukemire said "[y]ou try to not to – typically if you did something in front of the horse it would probably maybe startle the horse or maybe not. Most people come from the side and hand the crop to the rider." Queried whether a horse which has a crop visibly passed before it is more likely to have a reaction, Lukemire stated "I don't know if you can make that a hard and fast rule. . ." Finally, asked if it was a "basic understanding" that a crop should not be passed in front of a horse's face, Lukemire stated "Yes." He could not recall if he had ever specifically discussed this with the teaching assistant, although he said he had never seen her incorrectly use a crop prior to the accident involving Surace.

The doctrine of assumption of risk is commonly raised in horseback riding cases. See, e.g., Norkus v Scolaro, 267 AD2d 666, 667, 699 NYS2d 550 (3d Dept 1999) (citations omitted), in which it was stated that "[i]t is well established that an inherent risk in sporting events involving horses is injury due to the sudden and unintended actions of the animals . . ." In Norkus, it was found that claimant, an experienced competitive rider, assumed the risk where she walked across a track and a galloping horse struck her.

"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 . . ." Rubenstein by Rubenstein v Woodstock Riding Club Inc., 208 AD2d 1160, 617 NYS2d 603, 604 (3d Dept 1994). In Rubenstein, it was found that the minor plaintiff assumed the risk where she stopped her horse directly behind the riding club owners' horse, whereupon her horse nudged the rear of the owners' horse causing it to kick the child. The child had taken lessons for 1 ½ years prior to the accident and had been told that she should maintain a 6- to 10-foot distance between horses.

It should also be noted that "[t]he plaintiff need not have foreseen the exact manner in which the injury occurred ‘so long as he or she is aware of the potential for injury of the mechanism from which the injury results' . . ." Smith v Hunting View Farm, 265 AD2d 928, 695 NYS2d 802 (4th Dept 1999) (citations omitted). In that case, plaintiff was found to have assumed the risk where she had been working with horses for years, was in an advanced class and had competed in numerous horse shows; she was kicked in the head while assisting in a grooming technique she had never before performed.

In sum, horseback riding accidents frequently result in successful defenses based on assumption of risk. See, e.g., Papa v Russo, 279 AD2d 744, 719 NYS2d 723 (3d Dept 2001) (fourteen year old plaintiff assumed the risk where horse slipped and fell while claimant was riding); Becker v Pleasant Valley Farms, Ltd., 261 AD2d 427, 690 NYS2d 76 (2d Dept 1999), lv denied 94 NY2d 756, 703 NYS2d 73 (1999) (experienced rider "assumed the risks inherent in the sport of horseback riding, including the risk that a horse might bolt or become frightened . . ."); Hommel v Benshoff, 178 Misc 2d 1038, 682 NYS2d 546 (Sup Ct Nassau County 1998) (plaintiff, a "horse identifier" at a race track, assumed the risk of being kicked while attempting to identify an agitated, difficult horse).

What distinguishes Surace's case is that she alleges that defendant actively caused her horse to bolt by passing the crop in front of its face. See Getlar v Rubinstein, 171 Misc 40, 11 NYS2d 943 (Sup Ct NY County 1939), affd 258 App Div 795, 16 NYS2d 527 (1st Dept 1939), which involved the kicking and whipping by a riding master of the horse on which the plaintiff was mounted.

In sum, claimant may be able to prove at trial that the teaching assistant's passing of a crop in front of her horse is not a risk inherent to horseback riding and thus avoid application of the doctrine of assumption of risk (and of the statement she signed). The evidence at trial may convey a better picture of exactly what happened and whether defendant's actions violated a widely-accepted principle of horsemanship. Correspondingly, claimant's cross-motion does not succeed.[2]

Accordingly, having reviewed the parties' submissions[3], IT IS ORDERED that motion no. M-63371 be denied and IT IS FURTHER ORDERED that cross-motion no. CM-63878 be denied.

December 6, 2001
New York, New York

Judge of the Court of Claims

  1. [1]Claimant has not argued that the "Assumption of Risk Statement" is void and unenforceable pursuant to General Obligations Law §5-326, which renders "[a]greements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable." It would appear that §5-326 is not applicable in this case. See, e.g., Salazar v Riverdale Riding Corporation, 183 Misc 2d 145, 701 NYS2d 878 (Sup Ct Nassau Cty 1999) (section 5-326 did not apply to equestrian center as all riding done there was instructional). See also Bacchiocchi v The Ranch Parachute Club, Ltd., 273 AD2d 173, 174, 710 NYS2d 54, 56 (1st Dept 2000) ("[t]he distinguishing factor . . . seems to be whether the defendant is in the business of providing recreation or instruction"); Brancati v Bar-U-Farm, Inc., 183 AD2d 1027, 583 NYS2d 660 (3d Dept 1992) (riding stable where patrons rented trail horses was found subject to §5-326). There has been no suggestion that the facility in question in this case was used for purposes other than instruction.
  2. [2]Claimant herself states that "there exist triable issue[s] of fact as to whether defendant negligently created additional risks . . ." See ¶4C of the July 24, 2001 affirmation of Andrew J. Wigler, Esq.
  3. [3]The following were reviewed: defendant's notice of motion to dismiss with affirmation in support and exhibits A-B; defendant's memorandum of law; claimant's notice of cross-motion with affirmation in support and exhibits 1-3; and defendant's reply affirmation.