Opinion
No. FST CV 08-5009675 S
July 12, 2011
Memorandum of Decision
In this case the plaintiff claims that she was severely injured on June 1, 2008, when she was kicked by a horse named Ridley which was owned by the defendant, Michele Leasure ("Leasure"). At that time Leasure and her horse were participating in the Wilton Pony Club Horse Trials ("the Horse Trials"), an event sponsored by defendants The Wilton Pony Club and The United States Pony Club ("the USPC"). The event was held on Millstone Farm in Wilton, a property owned by defendant Millstone Properties, LLC. The plaintiff attended the event at the invitation of Leasure. At the time she was kicked she was in the process of washing Ridley with water and a sponge at Leasure's request.
Two separate motions for summary judgment have been filed against the plaintiff in response to her four-count fourth amended complaint ("complaint"), dated September 28, 2010. Both motions were argued at short calendar on May 2, 2011. In a separate memorandum of decision, this court disposed of the March 4, 2011 motion filed by Leasure. (#245.00 May 17, 2011). This memorandum of decision addresses the March 23, 2011 motion for summary judgment (#221.00) filed by The Wilton Pony Club, the USPC and Millstone Properties, LLC and directed towards counts two, three and four.
These three moving defendants will be collectively referred to as "the defendants" in those instances where it is necessary to discuss them in a collective manner. Defendant Leasure will be referred to by name and, in this memorandum of decision, is not included in the term "defendants."
The second, third and fourth counts of the complaint allege negligence by The Wilton Pony Club, USPC and Millstone Properties, LLC, respectively. The allegations against each of these three defendants are identical. The plaintiff alleges that the defendants had a duty of due diligence in keeping out horses with dangerous propensities to kick unprovoking humans and that they breached this duty by allowing Ridley to participate in the Horse Trials. She also alleges that the defendants failed to warn her about this dangerous propensity and that they failed to maintain the premises in a reasonably safe condition for their invitees. The plaintiff alleges that allowing Ridley to participate in the Horse Trials and failing to provide and enforce appropriate "warm down" or "cool out" procedures and facilities following equestrian events were violations of various rules and policies regarding event hosting, horse management and safety. The complaint also contains an allegation that the plaintiff's injuries were caused in part by the defendants' allowing a dog in the immediate vicinity of Ridley during the time that the plaintiff was trying to wash the horse. This was an apparent violation of the Horse Trials' "no dogs allowed" rule, according to the complaint.
On May 6, 2011, after this motion for summary judgment was argued on the short calendar, the plaintiff requested leave to amend her fourth amended complaint pursuant to Practice Book § 10-60(a)(3) in order to "clarify" her allegations pertaining to alleged violations of the "no dogs allowed" rule. The defendants did not object to the plaintiff's request. The fifth amended complaint thus alleges that each of the three defendants implicated in this motion for summary judgment "had a duty to enforce and comply with its own 'No Dogs Allowed' rule that applied to the subject Horse Trials and the subject Horse Trials premises, that it breached that duty and violated its own 'No Dogs Allowed' rule by negligently allowing a large dog on the premises in the immediate vicinity of Ridley at or about the time the plaintiff was attempting to wash Ridley with a sponge, that Ridley saw the large dog at or about the time the plaintiff was attempting to wash Ridley with a sponge, that Ridley started kicking the plaintiff shortly after Ridley saw the large dog and that the violation of the 'No Dogs Allowed' rule was a proximate cause of Ridley kicking and injuring the plaintiff . . ." (Fifth amended complaint, pp. 7, 11, 14.)
In their brief filed in support of their motion for summary judgment the defendants advance a number of arguments which they claim entitle them to summary judgment. Defendant Millstone Properties, LLC claims that as the landowner, it is protected by the recreational use immunity statutes, General Statutes §§ 52-557f through 52-557i. Defendant USPC claims that "there is no evidence that it had any connection to the subject horse, land or event upon which any duty or liability could be legally predicated." All three defendants claim that the recreational equestrian activities assumption of risk statute, General Statutes § 52-557p, bars the plaintiff's action. The defendants argue that with regard to Ridley, they owed no duty to the plaintiff because the injuries inflicted by the horse were not foreseeable to them due to a lack of actual or constructive knowledge of the horse's alleged dangerous propensities. Finally, the defendants claim that alleged violations of equestrian association or pony club rules cannot establish liability since there is no evidence that the plaintiff's injuries were proximately caused by failure to follow those rules. The defendants filed the following exhibits in support of their motion: (a) Leasure's May 1, 2009 responses to her co-defendants' April 14, 2009 requests for admission, (b) the plaintiff's May 7, 2009 responses to the defendants' April 14, 2009 requests for admission, (c) the February 3, 2011 affidavit of Alison de Lavis, the secretary for the June 1, 2008 Horse Trials, (d) excerpts of the transcript of the February 3, 2011 deposition of de Lavis, (e) excerpts of the transcript of the January 7, 2011 deposition of Jesse Fink, an owner of Millstone Properties, LLC, (f) the "use agreement" between Millstone Properties, LLC and The Wilton Pony Club pertaining to Millstone Farm covering the year between May 1, 2008 and April 30, 2009, and (g) a map of the 2008 Beginner Novice Course.
On April 26, 2011, the plaintiff filed an objection to the defendants' motion for summary judgment. The plaintiff argues that the motion is untimely because it violates Judge Brazzel-Massaro's June 4, 2010 scheduling order requiring motions for summary judgment to be argued before April 8, 2011. At the same time, according to the plaintiff, the motion is premature because the defendants have not yet answered the operative complaint. Furthermore, the plaintiff argues that Millstone Properties, LLC cannot move for summary judgment relying on the recreational use immunity statutes because these statutes have not been pled as a special defense. The plaintiff also argues that the motion should be denied or continued pursuant to Practice Book § 17-47 so that the plaintiff can conduct discovery relating to the application of the recreational use immunity doctrine.
Responding to the merits of the defendants' motion for summary judgment, the plaintiff claims that Millstone Properties, LLC is not protected by the recreational use immunity statutes, General Statutes §§ 52-557f through 52-557i, because equestrian activities are not a "recreational purpose" within the meaning of General Statutes § 52-557f(4). The plaintiff also claims that none of the defendants are entitled to the protections of General Statutes § 52-557p because the plaintiff was not engaged in recreational equestrian activities during her injury but was instead working in a non-recreational capacity as an unpaid groom and because her injury is not one "arising out of the hazards inherent in equestrian sports." She also argues that the defendants' failure to inquire as to whether horses seeking entry to the Horse Trials "had ever kicked and seriously injured a non-provoking human" constitutes "willful blindness" that is a violation of their duty of due diligence. Furthermore, the plaintiff argues that defendant USPC "is not entitled to summary judgment because it had a very close connection to [The Wilton Pony Club] and the subject Horse Trials" and that The Wilton Pony Club "does not exist except by and through the existence of the USPC." The plaintiff finally argues that each of the defendants violated the "no dogs allowed" rule by allowing a dog at Millstone Farm, and that the violation of this rule proximately caused Ridley to kick the plaintiff.
In opposition to the motion for summary judgment, the plaintiff submitted the following exhibits: (a) the affidavit of the plaintiff, (b) a copy of the "information for competitors" page of the Horse Trials program, which includes the "no dogs please" rule, (c) a copy of the prize list of the Horse Trials, which includes the "no dogs allowed on property" rule, (d) excerpts of the legislative history for the equestrian assumption of risk statute, (e) copies of the liability waivers for Millstone Properties, LLC and USPC signed by Leasure, (f) Leasure's 2008 Horse Trials entry form, (g) excerpts of the transcript of the January 7, 2011 deposition of Jesse Fink, and (h) excerpts of the transcript of the February 3, 2011 deposition of de Lavis.
On May 2, 2011, the defendants submitted a reply memorandum, along with the affidavit of Karen Winn, the interim executive director of defendant USPC, filed on May 4, 2011. Additional briefs were filed by the plaintiff on May 6, 2011 and by the defendants on May 23, 2011.
CT Page 15278
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91 (2007). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815 (2003). The burden is on the moving party to demonstrate an absence of any triable issue of material fact and "[t]o satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19 (2006).PROCEDURAL ISSUES
The plaintiff has raised a number of procedural objections to the court's consideration of the merits of the defendants' motion for summary judgment. The plaintiff first argues that the motion should be denied because it was scheduled to be argued on May 2, 2011, a date subsequent to the April 8, 2011 deadline for motions to be heard pursuant to the scheduling order. In Talenti v. Morgan Brother Manhattan Storage Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 4008848 (January 24, 2011, Tobin, J.), this court considered whether to rule on a motion for summary judgment that was argued more than one month after the deadline set out in a scheduling order, leaving the court less than three months to issue a decision. The court denied the motion, reasoning that the purpose of the scheduling order was to ensure that "any judge hearing a motion for summary judgment [has] no less than 100 days after argument and before the assigned trial date to issue a decision on any motion for summary judgment." Id. In the present case, the motion was heard on May 2, 2011, and trial is scheduled for August 30, 2011, giving the court the full 120 days to issue a decision on this motion. Therefore, the concerns raised by this court in Talenti are not implicated in this case. Furthermore, the plaintiff has not demonstrated that the defendants' non-compliance with the scheduling order has caused any prejudice. Courts may consider papers filed in violation of a scheduling order if the untimeliness results in no prejudice to any party. Council 4, AFSCME, AFL-CIO v. State Board of Labor Relations, Superior Court, judicial district of New Britain, Docket No. CV 05 4007530 (March 28, 2007, Taylor, J.), aff'd, 111 Conn.App. 666 (2008), cert. denied, 291 Conn. 901 (2009).
Practice Book § 11-19(a) provides in relevant part: "Any judge of the superior court and any judge trial referee to whom a short calendar matter has been submitted for decision, with or without oral argument, shall issue a decision on such matter not later than 120 days from the date of such submission, unless such time limit is waived by the parties."
The plaintiff next argues that the defendants cannot move for summary judgment because they have yet to answer the operative complaint. Practice Book § 17-44 provides in relevant part that "any party may move for a summary judgment at any time, except that the party must obtain the judicial authority's permission to file a motion for summary judgment after the case has been assigned for trial." The plaintiff's argument on this ground, therefore, has no merit. See, e.g., Thompson v. Gannalo, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 08 5006995 (June 11, 2010, Moran, J.T.R.) ( 50 Conn. L. Rptr. 93, 96 n. 6) (relying on Practice Book § 17-44 to reject a defendant's argument that a plaintiff's motion for summary judgment was premature because it was filed before the defendant answered the amended complaint).
The plaintiff also argues that Millstone Properties, LLC cannot move for summary judgment on the recreational use immunity statutes, General Statutes §§ 52-557f through 52-557i, due to its failure to plead those statutes as a special defense. This argument also lacks merit. The plaintiff has not provided any legal support for this claim, and the statutes do not address the precise methods through which they can be invoked in court. Therefore, this court decides that the specific pleading of this defense is not mandatory.
Finally, the plaintiff invokes Practice Book § 17-47 in her objection to the motion for summary judgment, arguing that she needs to redepose Millstone LLC's corporate representative to discover facts relevant to recreational use immunity and that deposition of defendant USPC's representative was scheduled for April 29, 2011, just three days before this motion was argued at short calendar, after opposing counsel's repeated failure to provide a deposition date. The plaintiff attests to this in her affidavit, (P's Exh. A, pp. 4-5), and therefore urges the court to deny or continue the motion for summary judgment.
Practice Book § 17-47 provides: "Should it appear from the affidavits of a party opposing the motion that such party cannot, for reasons stated, present facts essential to justify opposition, the judicial authority may deny the motion for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just."
Prior to the 1998 Practice Book revision, Section 17-47 was known as Practice Book § 382. "The trial court has wide discretion under § 382 to determine whether the party seeking additional time to conduct discovery already has had a sufficient opportunity to establish facts in opposition to the summary judgment motion . . ." Peerless Ins. Co. v. Gonzalez, 241 Conn. 476, 489 (1997). "If a party opposing summary judgment has had ample opportunity to procure the information necessary to defeat the motion, a trial court properly may deny a continuance . . . Furthermore, [u]nder [§ 382], the opposing party must show by affidavit precisely what facts are within the exclusive knowledge of the [party to be deposed] and what steps he has taken to attempt to acquire these facts." (Citation omitted; emphasis added; internal quotation marks omitted.) Great Country Bank v. Pastore, 241 Conn. 423, 438 (1997).
At the outset, the court notes that this action has been pending for more than two years, and this fact alone diminishes some of the force behind the plaintiff's claim of the need for additional discovery. See, e.g., Roger H. Kaye, M.D., P.C. v. T.D. Banknorth, N.A., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 08 5007268 (September 1, 2010, Adams, J.) ( 50 Conn. L. Rptr. 499, 503 n. 1) ("[a]lthough it is within the court's discretion to accept the validity of the plaintiff's argument that it has not had enough time to complete adequate discovery, this argument is not particularly persuasive considering the fact that this case has been pending since April 2008 and the summary judgment motion presently before the court was filed in November 2009"); McCall v. Danbury, Superior Court, judicial district of Danbury, Docket No. CV 99 0334584 (January 11, 2001, Adams, J.) (denying a plaintiff's motion for a continuance pursuant to Practice Book § 17-47 because the plaintiff "had the discovery procedures of two court systems available to him for well over a year"). Furthermore, the defendants' reply memorandum indicates that by May 2009, the plaintiff at the very least was on inquiry notice as to the possible use of recreational use immunity. On May 7, 2009, the plaintiff submitted her responses to the defendants' requests for admissions. (Ds' Exh. B, p. 1.) Request for admission number twenty was, "Ms. Reilly's attendance at the Horse Trials was for recreational purposes, namely to be a spectator at the Horse Trials and caring for a competitor's horse during the competition." (Ds' Exh. B, p. 5.) Thus, the plaintiff was alerted to the possible invocation of General Statutes §§ 52-557f through 52-557i about two years before this motion for summary judgment was argued.
Furthermore, the court finds that with respect to the deposition of the USPC's representative, the plaintiff has failed to "show by affidavit precisely what facts are within the exclusive knowledge of the [party to be deposed]" in a manner sufficient to grant a Practice Book § 17-47 denial or continuance. (Emphasis added; internal quotation marks omitted.) Great Country Bank v. Pastore, supra, 241 Conn. 438. The plaintiff merely attests that her "attorney needs to take the deposition of the USPC corporate representative to defend the USPC's MSJ argument that the USPC had no connection with the subject horse, land or event." (P's Exh. A, p. 5.) The plaintiff does not attest as to what facts are within that representative's exclusive knowledge or "what steps [s]he has taken to attempt to acquire these facts," other than through the deposition. (Internal quotation marks omitted.) Great Country Bank v. Pastore, supra, 241 Conn. 438. This is fatal to her § 17-47 argument. See, e.g., Moore v. Orange Enterprises, LLC, Superior Court, judicial district of New Haven, Docket No. CV 10 6011840 (August 16, 2010, Keegan, J.) (denying a plaintiff's request for a § 17-47 continuance when "the plaintiff has provided no indication as to what steps she has taken to secure facts necessary to defeat the defendant's motion"). The court exercises its sound discretion to determine that the plaintiff's stated reasons for a § 17-47 denial or continuance are inadequate. See Altfeter v. Naugatuck, 53 Conn.App. 791, 806 (1999).
THE SUBSTANCE OF DEFENDANTS' MOTION A. Immunity of the defendants under General Statutes § 52-557p.
The defendants claim that summary judgment must enter in their favor because the recreational equestrian activity assumption of risk statute, General Statutes § 52-557p, bars the plaintiff's action.
Section 52-557p provides as follows: "Each person engaged in recreational equestrian activities shall assume the risk and legal responsibility for any injury to his person or property arising out of the hazards inherent in equestrian sports, unless the injury was proximately caused by the negligence of the person providing the horse or horses to the individual engaged in recreational equestrian activities or the failure to guard or warn against a dangerous condition, use, structure or activity by the person providing the horse or horses or his agents or employees."
"[W]hen construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine the meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Internal quotation marks omitted.) Sosin v. Sosin, 300 Conn. 205, 227-28 (2011). "The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Internal quotation marks omitted.) Raftopol v. Ramey, 299 Conn. 681, 699 (2011). Furthermore, "[w]hen application of the statute to a particular situation reveals a latent ambiguity in seemingly unambiguous language . . . we turn for guidance to the purpose of the statute and its legislative history to resolve that ambiguity." (Internal quotation marks omitted.) Conway v. Wilton, supra 238 Conn. 665.
The activities sought to be protected by the plain language of the statute are "recreational equestrian activities." The plaintiff makes no argument that she was not engaged in an "activity" while she was injured. Nor does she deny that the activity she was engaged in was an "equestrian" activity. However, she attempts to exempt herself from the statute by claiming that the activity she was engaged in was not recreational for two reasons. First, because she was not a competitor at the time of her injury. Second, because she considered it to be uncompensated work. The court finds the plaintiff's proposed construction of the statute to be unreasonably narrow.
General Statutes § 52-557p does not contain a definition of "hazards inherent in equestrian sports." The plaintiff argues that recreational equestrian activities are non-competitive pursuits such as trail rides and riding lessons, while equestrian sports "are organized, skillful, competitive activities with a defined winner by objective or subjective means and rules and officials governing the sport." (P's April 26, 2011 brief, p. 7.) The plaintiff asserts that being kicked by a horse while attempting to wash it between two different competitive equestrian events is not an "injury . . . arising out of the hazards inherent in equestrian sports." The plaintiff thus argues that assumption of risk would apply only if she were injured while participating in a competitive equestrian event.
The Connecticut Supreme Court has recognized that Section 52-557p assumption of risk is not limited to injuries occurring during competitive equestrian activity. Reardon v. Windswept Farm, LLC, CT Page 15283 280 Conn. 153, 167 (2006). In a case where the plaintiff sued a horseback riding facility for injuries occurring after she was thrown off a horse during a non-competitive riding lesson, the Court wrote that "the inherent unpredictability of a horse is something that the legislature already has considered in providing to an operator of a horseback riding facility a defense to a claim of negligence pursuant to the assumption of risk doctrine codified in § 52-557p." Id. Thus, the terms "equestrian sports" and "recreational equestrian activity," as used within the statute, were not meant to have separate meanings.
Accordingly, the fact that the plaintiff was not engaged in a competitive equestrian activity does not preclude the application of equestrian activity assumption of risk. The question remains whether being kicked by a horse while attempting to wash it is an inherent risk of equestrian recreational activity. Although both the plaintiff and the defendants contend in their briefs that Section 52-557p is plain and unambiguous, the briefs of both sides include a discussion of the legislative history of Section 52-557p. The statute contains a latent ambiguity as to whether it applies to injuries arising out of activity incidental to horseback riding, such as washing the horse after the conclusion of riding. The court will thus examine legislative history.
In the law of equine or equestrian assumption of risk, Connecticut's statute is a unique breed. More than forty states have enacted equine immunity statutes over the past several decades. T. Centner, "Equestrian Immunity and Sport Responsibility Statutes: Altering Obligations and Placing Them on Participants," 13 Vill. Sports Ent. L.J. 37, 49 (2006); T. Centner, "The New Equine Liability Statutes," 62 Tenn. L. Rev. 997, 1038 (1995). Many of these statutes protect defendants from liability for injuries "resulting from the inherent risks of equine activities," a term defined within the statutes themselves. See, e.g., Mass. Gen. Laws ch. 128, § 2D (a)-(b) (2011). Massachusetts, for instance, defines "inherent risks of equine activities" as "dangers or conditions which are an integral part of equine activities, including but not limited to: (1) The propensity of equines to behave in ways that may result in injury, harm, or death to persons on or around them; (2) the unpredictability of an equine's reaction to such things as sounds, sudden movement, and unfamiliar objects, persons, or other animals . . ." Mass. Gen. Laws ch. 128, § 2D(a) (2011). The statutes of Alabama, Colorado and Missouri, among other states, contain substantially the same definitions of "inherent risks of equine activities." Ala. Code § 6-5-337(b)(6) (2011); Colo. Rev. Stat. § 13-21-119(2)(f) (2010); Mo. Rev. Stat. § 537.325(1)(6) (2011). During the process that led to the enaction of General Statutes § 52-557p, the Connecticut farm lobby advocated for the Massachusetts definition, but it was ultimately not adopted by the legislature. Conn. Joint Committee on Judiciary Hearings, Pt. 10, 1993 Sess., p. 3664. Unfortunately, the legislative history does not shed any light as to why the Massachusetts language was rejected in favor of a statute lacking any definitions.
During the hearings in the joint committee on judiciary, Rep. John Mordasky, the sponsor of House Bill No. 6357 (1993), stated that he originally proposed the Massachusetts statute and noted that what replaced it "is so short and small" and "doesn't even specify what an equine is" that it calls for the need "to get some explanations of what we are trying to do or what we're doing." Conn. Joint Committee on Judiciary Hearings, supra, pp. 3456-57.
The minutes of the legislative debates do provide some insight as to what state lawmakers intended by "hazards inherent in equestrian sports." In response to a voiced concern about the lack of specificity in House Bill No. 6357 (1993), Rep. Richard Tulisano, the chairman of the House judiciary committee, said, "What do we care? It says that a person assumes the risk when they ride a horse." Conn. Joint Committee on Judiciary Hearings, supra, p. 3537. At the debate in the House, Rep. Susan Bysiewicz said substantially the same thing: "What it gets to is assumption of the risk. You assume the risk once you get on a horse." 36 H.R. Proc., Pt. 14, 1993 Sess., p. 5052. After that, Rep. Robert Simmons asked, "So, am I to assume from that response that the risk of the operator or the person providing the horse or horses begins at the point that the horse is mounted?" 36 H.R. Proc., supra, p. 5053. Rep. Bysiewicz answered as follows: "[A] person assumes the risk not necessarily when they get on the horse. For instance, in attempting to get on a horse, the horse could kick them, or step on them." 36 H.R. Proc., supra, p. 5054. Rep. John Mordasky, the bill's sponsor, told of an incident where his father "got beat up pretty bad" by a team of horses that became "spooked up" after being attacked by hornets. 36 H.R. Proc., supra, p. 5067. Rep. Mordasky added: "There are some things that we don't have control of when it comes to horses. So I believe if you get on a horse, you do it at your own risk." 36 H.R. Proc., supra, pp. 5067-68.
At the Senate debate, Sen. George Jepsen said in relevant part: "I am told that horses have a mind of their own and sometimes you just don't know what they're going to do and people get thrown and that has given rise to liability and lawsuits which perhaps was inappropriate because there was in fact no negligent activity. So what this bill makes clear is that this kind of risk associated with inherent risk in riding horses would not be part of a basis for a lawsuit . . . This, by no means, excuses actual negligence on the part of a horse farm operator. What it does make clear is that there is some activity which [is] effectively beyond their control." 36 S. Proc., Pt. 10, 1993 Sess., pp. 3702-03.
The legislative history makes several things clear. First, as indicated by Rep. Bysiewicz's comments in the House, the "hazards inherent in equestrian sports," as set forth by Section 52-557p, are not limited to those risks attendant to riding a horse and can include injuries occurring during other related activities, such as mounting a horse. Second, lawmakers in both the House and the Senate suggested that for purposes of this statute, inherent hazards are those which are necessarily implicated in placing oneself in close proximity to large, powerful and potentially dangerous animals. These risks would include the possibility that the horse might react unpredictably to some sight, sound or other stimulus. The court concludes that the plaintiff's claim that General Statutes § 52-557p applies to competitive riders only during actual competition is untenable. The court, accordingly, rejects the plaintiff's first claim of exemption from the application of the statute.
The plaintiff's second argument is that Section 52-557p does not apply because working as an unpaid groom is not a recreational equestrian activity within the meaning of the statute. In support of this argument, the plaintiff attests in her affidavit that defendant Leasure asked for her help with Ridley at the Horse Trials, to which she replied "that I would be happy to help her in any way that I could." (P's Exh. A, p. 1.) She further attests as follows: "For me, functioning as [the defendant's] unpaid groom was work. Grooming is work to me and it gives me no pleasure nor do I derive any fun out of it. As a matter of fact, I hate grooming for people at competitions and I only did it in this case for [the defendant] because she was a friend of mine and she asked." (P's Exh. A, p. 3.) The plaintiff did not spend the entire day grooming. She attests to watching defendant Leasure and Ridley compete in the cross country competition prior to attempting to wash Ridley. (P's Exh. A, p. 2.)
The plaintiff's argument appears to be that the categorization of activity as recreational depends upon a participant's subjective motivation for partaking in the activity. If one engages in an activity because it provides pleasure or fun, then the activity is recreational, according to the plaintiff. Pursuant to this logic, that same activity can be deemed to be non-recreational if it is motivated by a desire to help a friend rather than a desire to have fun. Such a nuanced approach could lead to potentially absurd results, such as a child injured while horseback riding arguing that she was not engaged in a recreational activity because she does not enjoy riding horses and only does so to please her parents.
The purpose of Section 52-557p is to limit the liability of defendants for equestrian injuries. Accordingly, "recreational equestrian activities" as used in that statute was meant to have an objective meaning, one that could be readily understood and applied without the need to inquire into individual feelings and thoughts. Any other interpretation of this term would make the statute unworkable for potential defendants. The court rejects both of the plaintiff's grounds for claiming exemption from the statute and concludes that the plaintiff was involved in a recreational equestrian activity at the time of her injury. The plaintiff does not claim that any of the defendants, other than Leasure, provided the horse to her. Consequently, the express exceptions set forth in the statute do not apply.
The defendants further claim that any injury to the plaintiff was not foreseeable to them due to a lack of actual or constructive knowledge of Ridley's alleged dangerous propensities. Thus, they argue that they owed no duty to the plaintiff. The plaintiff argues that the defendants had a duty of due diligence to perform a reasonable inquiry for the purpose of keeping potentially dangerous horses out of the Horse Trials. There was a reasonable foreseeability that a dangerous horse would be admitted to the Horse Trials if the defendants did not screen for such horses, the plaintiff argues. According to the plaintiff's brief, this alleged duty of due diligence could have been satisfied by adding the following question to the Horse Trials entry form: "Has your horse ever kicked and seriously injured a non provoking human? If yes, please explain fully." (P's April 26, 2011 brief, p. 15.) Attached to the plaintiff's memorandum is a "release of liability, assumption of risk and indemnity agreement" between defendant Leasure and defendant Millstone Properties, LLC, referred to in the agreement as "the Owner." Paragraph nine of this agreement provides in relevant part: "The Owner reserves the right to refuse horse admission onto the Property if not in proper health or is deemed, in, the Owner's sole discretion, dangerous or undesirable." (P's Exh. D, p. 2.) The plaintiff argues that Millstone Properties LLC's reservation of this right is an acceptance of responsibility for ensuring that dangerous horses are denied admission to the Horse Trials.
The defendants argue in response that they had no duty to obtain unobtainable information. Karen Winn, the interim executive director of defendant USPC, attests in her affidavit that "[t]o [her] knowledge, no public database exists to access information regarding whether a horse has kicked any human being or shown aggressive propensities." (Winn affidavit, p. 2.) De Lavis attests to the same in her affidavit. (Ds' Exh. C, p. 2.) The plaintiff has failed to submit any evidence to the contrary. Due to the absence of a public database, the only way for the defendants to fulfill this alleged duty of inquiry would be to ask the participants of the Horse Trials. In her response to requests for admission, defendant Leasure admits that if any of her co-defendants "had directly inquired of Ms. Leasure whether 'Ridley' had a propensity to kick unprovoking humans, Ms. Leasure would have answered that 'Ridley' did not." (Ds' Exh. A, p. 8.) Thus, even if a duty did exist, the defendants argue, any inquiry would have been futile.
Furthermore, the court notes that there is an outstanding question of fact as to Ridley's behavior prior to this incident and as to defendant Leasure's knowledge about his alleged propensities to kick. See Memorandum of Decision, May 17, 2011.
"Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual . . . The determination of whether a duty exists is a question of law . . . Although it has been said that no universal test for [duty] ever has been formulated . . . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised . . . By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?" (Citations omitted; internal question marks omitted.) Allen v. Cox, 285 Conn. 603, 609-10 (2008). "The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand . . . If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant." (Citation omitted; internal quotation marks omitted.) Pelletier v. Sardoni/Skanska Construction Co., 286 Conn. 563, 593 (2008).
The plaintiff has not established that there was a duty to inquire as to whether participating horses had kicked unprovoking humans. In fact, the evidence establishes that any such inquiry would not have kept Ridley out of the Horse Trials. In an Illinois case with some similar facts, a plaintiff was riding a mare at a horse show when a nearby "stallion became uncontrollable, turned and raised its hind legs and bucked [the plaintiff's] leg." Lessman v. Rhodes, 308 Ill.App.3d 854, 855, 721 N.E.2d 178 (Ill.App. 4 Dist. 1999). The plaintiff in that case named the horse show sponsor as one of the defendants in his suit and claimed, among other arguments, that the sponsor "was willful and wanton for . . . not checking into the background of the horses registered for the show . . ." Id. The Appellate Court of Illinois for the Fourth District affirmed the trial court's granting of summary judgment in favor of the sponsor, ruling that the evidence showed that the sponsor "did not act differently from any other horse show sponsor" and that the plaintiff "has produced no evidence that any equine activity sponsor, in Illinois or any other state, conducted background checks into horses . . ." Id., 858.
Furthermore, none of the defendants controlled Ridley at the time that the plaintiff suffered her injury. In one Superior Court case cited by the defendants, a gelding kicked a farrier during shoeing at a barn. CT Page 15288 Murphy v. Eddinger, Superior Court, judicial district of Middlesex, Docket No. CV 98 0086973 (November 30, 1999, Robaina, J.) ( 26 Conn. L. Rptr. 8, 8). The farrier sued the owners of the barn, arguing that they knew or should have known about the horse's violent propensities but negligently failed to warn him. Id. The horse was not owned by the barn owners but was boarded at the barn by another party. Id. The court granted summary judgment in favor of the defendants. Id., 11. The court reasoned as follows: "To date no appellate authority exists to support the proposition that someone other than one who has control over the animal (i.e., an owner, keeper or harborer) can be held liable for the damage caused by the animal . . . [T]here exists no common law authority to hold a landlord legally responsible for the acts of domestic animals owned, kept or harbored by his tenants even abnormally dangerous animals." Id., 10. Furthermore, "[w]ith respect to knowledge regarding an animal's propensity for causing harm, it would be neither fair nor logical to hold a landlord to a higher standard than that which the law currently holds an owner." Id., 12 n. 6. The court concluded that "a property owner should not be held responsible for failing to warn others about or protect them from the potential negligent conduct of a tenant absent some evidence of a landlord exercis[ing] direct control over the instrumentality that caused the injury." Id., 10.
"No better general statement can be made than that the courts will find a duty where, in general, reasonable persons would recognize it and agree that it exists." St. Amand v. Kromish, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 95 0051663 (November 6, 1997, Flynn, J.) [ 20 Conn. L. Rptr. 556] (quoting W. Prosser W. Keeton, Torts (5th Ed. 1984) § 53, p. 359). In the present case, the plaintiff has failed to establish that any of the defendants had a duty to screen horses or to inquire as to whether they had ever kicked unprovoking humans.
The court concludes that the defendants have established that there is no issue of material fact with respect to the allegations of negligence set forth in sub-paragraphs a., b., c., d. and g. of paragraph 11 of the second, third and fourth counts of the plaintiff's fifth amended complaint. Each of those allegations of negligence: 1) implicates risks that are inherent in equestrian activities and are within the scope of the immunities provided under General Statutes § 52-557p; and 2) fails to allege a violation of a cognizable duty that any of the defendants owed to the plaintiff.
The two remaining allegations of paragraph 11 are that the defendants failed to have an effective accident/emergency response plan in effect (¶ 11.e) and that the defendants failed to enforce a "No Dogs Allowed" policy. (¶ 11.f.) The defendants did not address the allegations of paragraph 11.e in the brief filed in support of their motion for summary judgment or in the materials attached thereto. With respect to the allegations of paragraph 11.f, the defendants did not submit any evidentiary materials either showing 1) compliance or reasonable compliance with the "No Dogs Allowed" policy, or 2) that non-compliance with the policy was unrelated to the injuries that the plaintiff received. With respect to those allegations, the court finds that the defendants have failed to demonstrate that they are entitled to summary judgment.
B. Immunity of Millstone Properties, LLC under General Statutes §§ 52-557f through 52-557i.
Defendant Millstone Properties, LLC claims that it is protected by the recreational use immunity statutes, General Statutes §§ 52-557f through 52-557i, because it opened its property to the public without charge for the purpose of attending, participating in and assisting at the Horse Trials. Section 52-557g(a) provides in relevant part: "an owner of land who makes all or any part of the land available to the public without charge, rent, fee or other commercial service for recreational purposes owes no duty of care to keep the land, or the part thereof so made available, safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure or activity on the land to persons entering for recreational purposes." Section 52-557f(4) contains a definition of "recreational purpose" that "includes, but is not limited to" a list of enumerated activities. Equestrian activities are not in the list.
Alison de Lavis, the secretary for the Horse Trials, attests in her affidavit that "Wilton Pony Club charged an entry fee for riders to participate in the show. It was not a fee required for entry to the premises, and no part of the entry fees were given to Millstone Properties, LLC." (Ds' Exh. C, p. 3.)
The plaintiff argues that under the plain meaning rule, General Statutes § 1-2z, the statute does not apply to this case because the definition of "recreational purpose" lacks a specific reference to equestrian activities. Furthermore, the plaintiff argues that the various amendments to Section 52-557f(4) over the years, such as the addition of hang gliding and hot air ballooning, Public Acts 1988, No. 88-204, along with the enaction of the predecessor to Section 52-557p in 1993, indicates that the legislature was aware of the concept of equestrian activities and was willing to amend the subsection for other pastimes yet chose not to amend the subsection to include equestrian activities. The legislature's inaction is an intentional decision not to have equestrian activity covered by recreational use immunity, according to the plaintiff.
In 1997, General Statutes § 52-577p was transferred to General Statutes § 52-557p.
The purpose of these statuses is to protect landowners who gratuitously offer the public use of land for recreational purposes, thereby encouraging recreational utilization of scarce open space in a highly urbanized state. See Conway v. Wilton, 238 Conn. 653, 667-68 (1996). The definition of "recreational purpose" is a nonexclusive list of various activities. The Supreme Court has ruled "that the list of activities enumerated in § 52-557f(4) is not exclusive and 'is not limited to' those activities listed. Recreational activities naturally arise from the desires and preferences of the person who is enticed away from the troubles and toil of the workaday world and who is drawn to the outdoors to partake of an activity that is pleasant for its own sake. Had the legislature intended to include as 'recreational purpose [s]' only those activities enumerated in the statute and similar activities . . . it would have slighted the recreational preferences of a large portion of the population." Scrapchansky v. Plainfield, 226 Conn. 446, 457 (1993).
The evidence establishes that the plaintiff entered defendant Millstone Properties, LLC's land to partake in recreational activities, namely watching an equestrian event and grooming. Furthermore, it is undisputed that Millstone Properties, LLC offered the land to the public free of charge. Thus, the court finds that pursuant to General Statutes § 52-557g, Millstone Properties, LLC has no liability to the plaintiff. Accordingly, the court grants the defendant's motion for summary judgment with respect to the fourth count of the plaintiff's fifth amended complaint.
C. Liability of The United States Pony Club
Defendant USPC claims that it has no meaningful relationship to the Horse Trials which the plaintiff attended on the day of her injuries. In support of this claim, the defendants submit the deposition transcript of Alison de Lavis, the Horse Trials secretary, who testifies that USPC had no hands-on responsibilities at the event but that participants had to sign a USPC waiver of liability because USPC provided insurance. (Ds' Exh. D, pp. 104, 137.) In addition, de Lavis attests in her affidavit that "[t]he USPC had no involvement in or oversight of the Horse Trials other than to provide liability insurance to the Wilton Pony Club if requested" and that she did not provide a list of entrants to the USPC prior to the event. (Ds' Exh. C, p. 2.)
The plaintiff counters that a genuine issue of material fact exists pertaining to the USPC's involvement in the Horse Trials. The plaintiff bases this argument on the fact that the USPC release refers to the Horse Trials as a "USPC activity," (P's Exh. D, p. 3.), that de Lavis testified that the USPC is "the parent body" in the pony-club hierarchy and that de Lavis answered in the affirmative upon being asked whether the USPC's name is on the releases because 'The Wilton Pony Club . . . derives either its authority or its mission statement from the [USPC]." (P's Exh. F, pp. 13, 24.) None of the evidence proffered by the plaintiff rebuts the defendants' proof showing an absence of a nexus between the USPC and the Horse Trials. There is no genuine issue of fact as to the lack of connection to the land, event and horse. Since there is no connection, there can be no duty, and thus, the USPC is entitled to summary judgment with respect to the third count of the plaintiff's fifth amended complaint.