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