Practice point: The defendants established their prima facie entitlement to judgment as a
matter of law by demonstrating that the plaintiff assumed the risk of
falling off a horse while riding. Under the doctrine of primary
assumption of the risk, 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
The risk of falling from a horse or a horse's acting in an unintended manner is inherent in the sport of horseback riding. Awareness of a risk will be assessed against the background of the skill and experience of the particular plaintiff. Here, the record, including the plaintiff's own deposition testimony, showed that the plaintiff had sufficient skill and experience to appreciate the
risk of falling off a horse while riding.
Student note: The plaintiff's alleged diminished mental capacity did not raise a
triable issue of fact as to whether she was able to appreciate the risks
inherent in horseback riding, in light of the evidence showing that she
was an experienced horseback rider and was aware of the risk of falling
off a horse. The plaintiff's claim that the defendants unreasonably increased
the risks involved in horseback riding was also insufficient to raise a
triable issue of fact. The affidavit of the plaintiff's expert was
speculative, as the expert assumed facts not supported by the evidence
in reaching a conclusion.
Case: Fenty v. Seven Meadows Farms, Inc., NY Slip Op 05186 (2d Dept. 2013).
Here is the decision.
Tomorrow's issue: Fraudulent intent, and attorneys' fees under Debtor and Creditor Law.
