SURACE v. THE STATE OF NEW YORK, #2003-016-008, Claim No. 101613
The assumption-of-risk doctrine would not apply to an injury resulting from the
fall off a horse given the unusual facts of this case -- the riding instructor
had passed the riding crop up to the claimant through the horse's field of
vision, a movement which violated a widely accepted principle of
CHRISTINA SURACE The caption has been amended to reflect that the sole proper defendant is the State of New York.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
ALAN C. MARIN
Andrew J. Wigler, Esq.By: Nancy Wigler, Esq.
Eliot Spitzer, Attorney GeneralBy: John M. Shields, Esq., AAG
February 5, 2003
See also (multicaptioned
Christina Surace contends that, while a student at the State University taking
a class in horsemanship and riding as part of her physical education
, she fell off her horse when the horse suddenly bolted because her instructor
frightened it with a riding crop. Enrolled in "Advanced Beginners
Horsemanship," Ms. Surace was a sophomore at SUNY- Stony Brook. The previous
term, claimant had completed the initial course, entitled "Beginners
Instruction was given at Smoke Run Farm, 10 minutes from the Stony Brook
campus, under the direction of George Lukemire, who was paid for teaching the
course by the State University.
In the class, Mr. Lukemire was assisted by two Stony Brook students; Aisha Singh
was the teaching assistant involved with claimant's instruction.
Lukemire, who had been teaching horseback riding since 1967 at Smoke Run,
testified very favorably, and credibly so, about Singh's horsemanship as well as
her ability with the students. Ms. Singh, who was the only eyewitness to
claimant's mishap, resided in France at the time of trial and her testimony
could not be secured.
The riding class in question was given on the morning of October 8, 1998, a dry
day, if a little cold, for that time of year. There were a total of seven or
eight students in the class.
Lukemire would select the horses, trying to match a horse to a student's
ability; Surace was assigned Harbor Lights, a 25-year old thoroughbred, old for
a horse. Lukemire testified that Harbor Lights was "[v]ery docile. We put all
kinds of riders on the horse, but you could put a new rider on it at any age.
Matter of fact I had my granddaughter, who was only four, ride the horse at that
time..." Harbor Lights, according to Lukemire, had been at Smoke Run for 10 or
15 years without incident.
There were two riding rinks, the smaller was for less advanced students, and
Surace, on Harbor Lights, was led down there by Singh, who was on foot.
Claimant recalled that she had ridden her at
least four times in the beginners' class. She said that she never had a problem
with Harbor Lights. In fact that day, Surace had cleared low jumps ten times
with the horse prior to her accident near the end of the 90-minute class.
When she got on Harbor Lights that last time, Surace was handed a riding crop,
which at her level, she was required to carry. From her first class at Smoke
Run the previous term, claimant carried one every time she rode.
At trial, claimant described her accident this way:
I was sitting on my horse. We were standing still...I had just finished the
jumps; three jumps...[Aisha] was [in] front to the left a little...she was
talking to me and I was adjusting my reins and I dropped my crop...[t]o the left
of me... She picked it up, standing from in front of the horse, and
passed it across the horse's eye...I was leaning over towards the left because
that's where she was, like, left and forward a little...The horse freaked out.
She all of a sudden ... went towards the right and I kind of was...pulled with
her because I was leaning towards the left. So, I was pulled this way and she
veered right and straight to the back...and then took off to the right into a
gallop...then she made her way back around and I fell off in the interim.
Lukemire did not see the incident, but came over to claimant. Lukemire, in his
deposition (cl exh 4)
described the horse's actions less dramatically:
Question: Did she describe to you how much the horse moved over? Answer:
A step....she said [Aisha] handed me a crop and the horse moved.
The incident report (def exh A) signed by Lukemire, listing
Ms. Singh as a witness had the following attachment initialed by Lukemire, who
apparently wrote, or printed, it:
TA handed riding crop to Christina. The horse moved away & Christina fell
off. Horse was at a standstill when TA handed crop to Christina.
Claimant recalled that Singh "said that she was sorry and that
she shouldn't have handed me the crop like that and she said it several times."
Claimant called as an expert witness, Jill Cooke, who had experience showing
horses in competition, as a riding instructor, a trainer of thoroughbred horses
and a stable operator. Ms. Cooke stated that although virtually every horse - -
she had no specifics on Harbor Lights - - experiences the crop or whip in some
fashion at some time, the way the riding crop was passed to Surace violated long
established principles of horsemanship and she vividly explained why.
Cooke was very detailed as to the field of vision of a horse (cl exh 3).
Horses, explained Cooke, see best 8 to 20 feet directly in front of them, have
and poor peripheral vision. Anything closer is non-focused and effectively
peripheral. What this means is that "when a horse sees something to his side he
has to look, turn his face and look at it to get the focused view and decide
whether he should be afraid of it..."
Cooke added that horses are largely color blind and can have all the human
problems of nearsightedness, farsightedness and impaired depth perception:
So, anything that you might do...anywhere near the horse's face you ...proceed
slowly and in passing something to and from the rider...this is done at the
shoulder, behind the horse's field of vision...while a person is actually
standing at the shoulder they'll...normally touch the horse while they're giving
the crop up to the rider, so that the horse knows there's something going
In a quartet of cases decided together,
the Court of Appeals set the contours for the duty of care owed participants
who are injured while engaging in voluntary sports activities: "[A] participant
consents to those commonly appreciated risks which are inherent in and arise out
of the nature of the sport generally..." Morgan v State of New York
NY2d 471, 484, 662 NYS2d 421, 426 (1997). The terminology that had been used,
and often still is, was cast in terms of "assumption of risk," notably in
Turcotte v Fell
68 NY2d 432, 510 NYS2d 49 (1986).
Nothing in the evidence suggests that the program at Smoke Run Farm was other
than an excellent one run by an individual with both long experience and an
affinity for instruction. In view of the above however, in the particular
instance, the action of Singh in handing up the riding crop was not proper
horsemanship and caused Harbor Lights to sufficiently move so that claimant was
thrown from her mount.
With that said, the determination of liability turns on whether such was an
inherent risk. The riding crop was a necessary appurtenance, and claimant
testified she always carried it as did other riders
in her group, but the doctrine of inherent risk, or assumption of risk, does not
trump every lawsuit by a sports participant. Morgan
went on to hold that
such a participant "will not be deemed to have assumed ... unreasonably
increased risks." 
There is no shortage of cases involving riding
injuries that were successfully defended on the grounds that the injured party
assumed the inherent risk of being around horses. For example, in Rubenstein
v Woodstock Riding Club
, 208 AD2d 1160, 617 NYS2d 603 (3d Dept 1994), a
12-year old, with some experience showing horses, was participating in an
equestrian event which required her to lead her horse in a trot and then come to
a stop in a head-to-tail formation with other horses. She stopped too close to
the horse in front and was kicked by it. Ms. Rubenstein had been instructed to
maintain a 6- to 10-foot distance between horses; this plaintiff failed to do
and defendant was granted summary judgment: "there is always an inherent risk
of being injured by a horse since they are large, strong animals that at times
are unpredictable." 208 AD2d at 1161, 617 NYS2d at 604.
Additional cases where a lawsuit arising from this activity was unsuccessful
a plaintiff, in an advanced class and who had competed in numerous horse
shows, was kicked in the head while assisting in a grooming technique she had
never before performed (Smith v Hunting View Farm
, 265 AD2d 928, 695
NYS2d 802 [4th Dept 1999]); a fourteen-year old plaintiff, who had been riding
since she was 7 or 8 years of age, had her horse slip and fall on her after it
successfully completed a jump, slowed to a trot and turned to the right (Papa
, 279 AD2d 744, 719 NYS2d 723 [3d Dept 2001]); an experienced rider
familiar with her horse's background assumed the risk that the horse might bolt
or become frightened (Becker v Pleasant Valley Farms,
261 AD2d 427, 690
NYS2d 76 [2d Dept 1999], lv denied
94 NY2d 756, 703 NYS2d 73 ); an
experienced rider in Manhattan's Central Park was injured when her horse was
startled and ran off at a point where the bridle path approached a busy street
(Freskos v City of New York
, 243 AD2d 364, 663 NYS2d 174 [1st Dept
1997]); and Tindall v Ellenberg
, 281 AD2d 225, 722 NYS2d 16 (1st Dept
2001), in which the First Department rejected plaintiff's argument that she did
not assume the enhanced risk of another horse and rider recklessly passing her
during a fox hunt.
What happened to Ms. Surace was arguably not the result of an inherent risk,
but rather of an unreasonably increased level of risk.
The facts in Getlar v Rubinstein
, 171 Misc 40, 11 NYS2d 943 (Sup
Ct NY County 1939), affd
258 AD 795, 16 NYS2d 527 (1st Dept 1939) sound
too strong - - the kicking and whipping of the plaintiff's horse by a camp's
riding instructor was characterized by the court as a "willful and wanton act."
171 Misc at 40, 11 NYS2d at 944.
But the case closest to the instant one appears to be
Millan v Brown
, 295 AD2d 409, 743 NYS2d 539 (2d Dept 2002), in which the
plaintiff, who was taking a riding lesson, was injured when her horse suddenly
went into an uncontrollable gallop. The testimony was that "the horse
‘spooked' when the defendant Eric Janelli, who was preparing a horse
trailer parked alongside the riding ring, shook a vinyl tarp and created a
‘loud***crackly' noise." 295 AD2d at 409, 743 NYS2d at 540. The Second
Department ruled that while Ms. Millan had assumed the risk of falling off a
horse, she did not assume the risk created by the conduct of Janelli who, given
his experience with horses, should have exercised greater caution.
The Second Department did describe Janelli's conduct as reckless, which is
suggestive of more precipitate behavior than conduct that unreasonably increases
a risk. But in any event, what Aisha Singh did was in violation of a longtime,
accepted protocol. While clearly a close call without better precedential
guidance, I conclude claimant has met the
standard: the action of Ms. Singh was not a risk inherent to
horseback riding, but was one that unreasonably increased the risk. Given such
conclusion, correspondingly, claimant's signature on the Assumption of Risk
Statement (cl exh 1) does not defeat her claim. (See the Decision and Order in
this matter filed December 18, 2001).
Defendant does not, however, bear all of the responsibility; Surace is liable
for 25% thereof. She had completed one course and taken several classes in a
second horsemanship course before her fall. It is undisputed that from the very
first, riders were taught to pass the crop away from the front of the horse.
Claimant knew this. She was on notice that the crop could be passed back up to
her; she had just dropped it. Since I find it more likely than not that the
horse moved, and did not "freak out"
as claimant described it, if she was leaning over to receive the crop,
she could have steadied herself knowing that the horse could react. I am not
unmindful that claimant is much less experienced than the other individuals
In view of the foregoing, I find the defendant to be
seventy-five (75%) liable
for Christina Surace's October 8, 1998 fall
from her horse and the damages resulting therefrom. All motions not previously
ruled upon are hereby denied. The parties will be contacted to schedule the
damages phase of trial.
ENTER INTERLOCUTORY JUDGMENT
February 5, 2003
York, New York
HON. ALAN C. MARIN
Judge of the Court of Claims
A request for a continuance was denied for the
reasons stated on the record at trial.
With the enactment of CPLR 1411 in 1975, New
York's tort law went to comparative negligence, from contributory negligence; in
the latter, assumption of risk was a complete defense. Ron Turcotte, a noted
jockey - - he rode Secretariat
to the Triple Crown - -
seriously injured in a race at Belmont Park. The Turcotte
quoted in Morgan
to the effect that "assumption of risk is not an
absolute defense but a measure of the defendant's duty of care and thus
survives the enactment of the comparative fault statute.
" 90 NY2d at 483-84;
662 NYS2d at 426.
A fuller excerpt is as follows:
"[P]articipants will not be deemed to have assumed the risks of reckless or
intentional conduct (id.
], at 439; McGee v Board of
, 16 AD2d 99, 101-102, supra
) or concealed or unreasonably
increased risks (Benitez v New York City Bd. of Educ.
, 73 NY2d 650, 658,
)... Therefore, in assessing whether a defendant has violated a duty
of care within the genre of tort-sports activities and their inherent risks, the
applicable standard should include whether the conditions caused by the
defendants' negligence are ‘unique and created a dangerous condition over
and above the usual dangers that are inherent in the sport' (Owen v R.J.S.
, 79 NY2d 967, 970; Cole v New York Racing Assn
AD2d 993, affd no opn
17 NY2d 761." 90 NY2d at 485; 662 NYS2d at 427.