ALICIA STROMAN v. CHRISTOPHER BELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1667-10T1

ALICIA STROMAN,

Plaintiff-Appellant,

v.

CHRISTOPHER and JOAN BELL, h/w,

Defendants-Respondents.

__________________________________

September 19, 2012

 

Submitted March 7, 2012 - Decided

 

Before Judges Sapp-Peterson and Ostrer.

 

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-264-08.

 

Gruber, Colabella & Liuzza, attorneys for appellant (Chris Colabella, of counsel and on the brief; Virginia D. Liotta, on the brief).

 

Jose B. Moreira, P.C., attorneys for respondents (Mr. Moreira, on the brief).

PER CURIAM

Plaintiff Alicia Stroman appeals from the trial court's grant of summary judgment to defendants, Joan and Christopher Bell, dismissing Stroman's complaint seeking damages for injuries she incurred when she was thrown from a horse at the Bells' farm in Montague Township. The trial court determined that Stroman's claim was barred by the New Jersey Equine Activities Liability Act (Equine Act), N.J.S.A. 5:15-1 to -12, specifically, N.J.S.A. 5:15-5, which generally provides that the assumption of the risks inherent in equine sport serves as a bar to suit. The court found inapplicable the exceptions in N.J.S.A. 5:15-9 to the limitation of liability.

We disagree. The record evidence includes a written admission by Joan Bell that she was negligent in matching Stroman with the horse that threw her, based on what Bell1 knew about Stroman's riding experience and skills. Granting plaintiff all reasonable favorable inferences, Bell's admission was enough to create a genuine issue of material fact regarding whether an exception to the limitation of liability applied.

I.

We discern the following facts from the record, viewed in a light most favorable to plaintiff as the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Stroman met Bell in September 2006 at the small parochial school that their children attended. During one of their several conversations in the parking lot, while waiting to ferry their children home, Bell revealed that she maintained horses. Stroman told Bell she enjoyed riding, and used to ride often, but had not ridden in a long time. Bell invited her to ride at her farm; Stroman accepted; and the two set a date for September 28, 2006.

Stroman arrived in the morning after dropping her older children off at school. She had her two-year-old daughter with her. Before riding, Stroman and Bell had something to eat and Stroman told Bell about her riding experience. Stroman rode every weekend between the ages of twelve and fourteen. She formed a riding club at college, and was offered, but did not accept, a job as a trail guide. Since her graduation from college in 1983, she did not ride again, except during her honeymoon.

Bell placed Stroman on a calm seventeen-year-old thoroughbred named Annie. Bell could recall no instance in which Annie threw a rider, but did recall one instance in which an inexperienced teenager fell because he ran the horse back to the barn, something Bell said a rider was not supposed to do.

Bell observed Stroman ride the horse around one of the paddocks. Bell asserted that Stroman demonstrated her ability to walk, trot and cantor the horse. Bell concluded that Stroman knew how to hold the reins, and to turn and stop the horse. Bell felt comfortable taking Stroman out for a ride.

Bell then mounted a four-and-a-half year old paint2 named Nicodemus that was half Arabian, part Quarter horse and part Saddle horse. Bell had purchased the horse from her nephew, who had trained the horse to participate in "Indian Wars Re-enactments." Bell said her nephew trained the horse "to respond quickly if he gave him a command, like hut, the horse would jump forward and gallop." Bell said she could not replicate that.3 She admitted her son had once fallen off the horse and injured his wrist. Bell was unsure if the horse bucked when her son fell. When the horse was two years old, her two daughters had also fallen off the horse when they were riding together.

Bell took Stroman's two-year-old daughter with her on the ride. Stroman had told Bell she, Stroman, did not feel experienced enough, nor did she feel safe or comfortable taking her daughter.

The two walked the horses along a trail that crossed several neighboring properties. Annie walked sluggishly, because her shoes had recently been removed and she was still tender-footed. Bell apologized for the horse's sluggishness and, although Stroman "kind of smiled," Bell concluded that Stroman was not "having a nice ride." The two women returned to the property after a ride that lasted thirty to forty minutes.

Upon their return, Bell spontaneously suggested that Stroman go out alone for another ride on Nicodemus, while Bell took Stroman's daughter into the house for a drink. Bell immediately regretted making the offer because she had conflicting feelings. On one hand, she believed Stroman "did ride well and she looked like she had a lot of experience, and she certainly knew how to handle a horse." On the other hand, Bell believed Stroman was timid, and "anyone who seems a little timid, I would feel a little bit, well, maybe they shouldn't ride by themselves."

After five or ten minutes on the trail, Stroman concluded that Nicodemus did not want to be on the trail; he repeatedly turned back toward the barn. After continually guiding him to proceed along the trail, Stroman relented and decided to allow the horse to return to the barn. After they came to the part of the trail that led up to the barn, and entered the first corral, the horse, which had been proceeding slowly, suddenly jolted, and charged.

Bell saw the horse as it returned to the barn, riderless. She frantically searched for Stroman and found her on the ground, dazed. She had suffered significant injuries.

In a sworn hand-written letter addressed "to whom it may concern" written slightly less than two years after the incident, Bell expressed great remorse about the incident, and accepted personal responsibility for life-altering injuries to Stroman, whom she considered a friend. Bell admitted that she was negligent in allowing Stroman to ride Nicodemus alone, based on her assessment of Stroman's limited skills. The letter related how Bell met Stroman, invited her to ride, and the subsequent events. We quote at length from the letter, beginning with Bell's suggestion that Stroman ride Nicodemus alone.

When we returned to the barn and dismounted . . . I spontaneous[ly] asked Alicia if she'd like to go out on her own for a ride back on the trail with a more responsive mount the one I and her daughter had been riding. Immediately, I regretted the offer. I felt it would not be wise because horses don't like to leave other horses and ride out alone. For an experienced rider it is no problem at all, but certainly could be for someone who is not. Despite my sudden worry, I pushed it out of my mind rationalizing that nothing would happen on a walk and keeping to the easy trail we had just gone on. To retract, I felt would insul[t] Alicia. While I was giving Alicia's little girl juice and crackers at the house, and keeping an eye toward the barn for Alicia's return, I, with dread and panic, saw Alicia's mount galloping back to the barn riderless. I got my husband who was working from home to take the child and to follow in the car while I ran to the barn and toward the trail.

 
I found Alicia on the ground in the field that entered into the woods. She could not get up.

 

. . . .

 

But the fact is, I was neglig[e]nt in letting her ride out alone. I was so focused on not wanting to hurt her feelings by admitt[ing] to her that she shouldn't ride alone because she wasn't experienced enough. She had been so pleased and enthusiastic about telling me all her experiences with horseback riding, even though she admitted she hadn't rid[d]en in quite a while, that I felt I would hurt her feelings to tell her she really wasn't as experienced as she thought she was. So for that desire not to offend her, I allowed her to be put at risk against my better judgement. Even when I rationalized the situation in my own mind, I did not feel comfortable watching her ride out alone, though she did a remarkable job keeping the horse moving out at a walk away from the barn, the other horses, and enter the woods[.] None-the-less, that nagging disquiet lingered and made me very uncomfortable.

I did a very foolish thing. A very neglig[e]nt and careless thing.

Stroman filed her complaint against Bell and her husband on May 2, 2008. After a period of discovery, the Bells filed a motion for summary judgment in November 2009, arguing that Stroman's claims were barred by N.J.S.A. 5:15-5. After the matter was held in abeyance to await the Supreme Court's decision in Hubner v. Spring Valley Equestrian Center, 203 N.J. 184 (2010), the trial court granted the Bells' motion.

The trial court reasoned that Stroman's injuries resulted from inherent risks she was deemed to have assumed under the Equine Act. N.J.S.A. 5:15-3. Subject to exceptions, the Act bars suits against an operator of an equine facility "for injuries resulting from . . . assumed risks." N.J.S.A. 5:15-5. Inherent risks include the propensity of an equine animal to behave in ways that result in injury; the unpredictability of an equine animal's reaction to sounds, sudden movement, and unfamiliar objects; and the potential of a participant to act in a negligent manner including failing to maintain control over the equine animal. N.J.S.A. 5:15-2(a), (b) and (e). The trial court found inapplicable two exceptions to the bar of suit urged by Stroman. One exception provides the bar does not apply if the equine operator "[f]ail[s] to make reasonable and prudent efforts to determine the participant's ability to safely manage the particular equine animal, based on the participant's representation of his [or her] ability[.]" N.J.S.A. 5:15-9(b). The second exception urged by Stroman provides the bar does not apply if the operator commits "[a]n act or omission on the part of the operator that constitutes negligent disregard for the participant's safety, which act or omission causes the injury[.]" N.J.S.A. 5:15-9(d).

The court found no admissible evidence to support Stroman's argument that Bell knew Nicodemus had the dangerous propensity to charge unexpectedly. The court also declined to give weight to Bell's letter.

The Court does not consider her statements to have any legal significance, and declines to conclude that the issue of whether the Defendant was negligent hinges on her own statements in that letter. Furthermore, even if the Court did attach any weight to the letter, Bell's statement merely opines that she was "negligent in letting [Stroman] ride out alone." Under the Equine Activities Act, an operator cannot be held liable for simply allowing a rider to ride solo, thus this "admission" by the Defendant has no bearing on whether she is negligent under one of the exceptions to the Act, standing alone, and unsupported by expert testimony.

 

Stroman raises the following points on appeal:

I. THE LOWER COURT'S GRANT OF SUMMARY JUDGMENT TO THE DEFENDANTS WAS IN ERROR BECAUSE, REGARDING PROOFS IN THE RECORD BELOW THAT ESTABLISHED A JURY QUESTION AS TO THE APPLICABILITY OF THE EQUINE ACTIVITIES ACT, THE COURT FAILED TO GRANT THE PLAINTIFF ALL FAVORABLE FACTUAL INFERENCES, AND THE COURT ERRONEOUSLY RESOLVED GENUINE AND MATERIAL FACTUAL ISSUES IN FAVOR OF THE DEFENDANTS.

 

A. Appellant's claims are actionable as exceptions to the limits on liability imposed under the Equine Activities Act.

 

B. The appellant offered sufficient proof in the record to demonstrate the existence of a statutorily imposed duty on the part of the respondent as set forth under the Equine Activities Act such that the issue should have gone to the jury.

 

II.

We review the trial court's grant of summary judgment de novo. Lapidoth v. Telcordia Tech., Inc., 420 N.J. Super. 411, 417 (App. Div. 2011). We apply the same standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Pursuant to Rule 4:46, we "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540. Issues of law are also subject to our plenary de novo review. Regarding "the review of legal conclusions reached on summary judgment . . . '[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382-83 (2010) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

Our analysis is guided by the Supreme Court's construction of the Equine Act, in particular, its resolution of the tension between the provision barring suit for injuries resulting from assumed inherent risks, and the exceptions to the suit bar, which if broadly read "might operate to effectively swallow the Act's protections entirely." Hubner, supra, 203 N.J. at 197. The Court concluded the Equine Act "is designed to establish a dividing line between the known and inherent risks of the endeavor that are assumed by the participant, and those events or conditions that are within the control of, and thus are part of the ordinary obligations of, the facility's operator." Id. at 203.

The Court held that "risks that are inherent and essentially uncontrollable, which [the Legislature] has attempted to define, are risks that the participant assumes." Id. at 204. These include the unpredictable nature of a horse's actions, and other assumed risks defined in N.J.S.A. 5:15-2. Hubner, supra, 203 N.J. at 204. On the other hand, the Legislature permits suit when an operator breaches "duties of care, defined through the statute's expression of exceptions" under N.J.S.A. 5:15-9. Hubner, supra, 203 N.J. at 204.

The Court indicated that knowingly mismatching a rider with a mount could fall within one of two exceptions, N.J.S.A. 5:15-9(b) and (d). Hubner, supra, 203 N.J. at 204. The Court indicated that the exception under N.J.S.A. 5:15-9(b), which expressly applies when an operator fails "to make reasonable and prudent efforts to determine the participant's ability to safely manage the particular equine animal," also applies when the operator then fails to act reasonably and prudently in light of that information. Citing subsection (b), the Court stated, "Some of the exceptions are clear and need little explanation. For example, if the operator assigns a first-time rider to a horse that the operator knows is particularly high-strung, fractious, or difficult to manage, a claim for a resulting injury would fall within the statute's exceptions. N.J.S.A. 5:15-9(b)." Hubner, supra, 203 N.J. at 204.

Mismatching a rider with a mount may also fall within the exception under N.J.S.A. 5:15-9(d) as "an act or omission on the part of the operator that constitutes negligent disregard for the participant's safety." In discussing the example of mismatching a first-time rider with a fractious horse, the Court cited Stoffels v. Harmony Hill Farm, 389 N.J. Super. 207 (App. Div. 2006), where, the Court noted, we "consider[ed] 'failure to take reasonable measures to match the rider to a suitable mount' in [the] context of subsection (d)." Hubner, supra, 203 N.J. at 204 (citing Stoffels, supra, 389 N.J. Super. at 217-18).

In Stoffels, supra, we remanded for trial on the issue of whether an operator was negligent, pursuant to the exception under N.J.S.A. 5:15-9(d), by assigning the plaintiff to a horse that the operator knew was inexperienced under the saddle. 389 N.J. Super. at 218. We affirmed the trial court's determination that the operator was not subject to liability under N.J.S.A. 5:15-9(b) by "fail[ing] to make reasonable and prudent efforts to determine the participant's ability to safely manage the particular equine animal, based on the participant's representation of [her] ability." Stoffels, supra, 389 N.J. Super. at 217 (quoting N.J.S.A. 5:15-9(b)). We held the operator was permitted to rely on the plaintiff's extensive representations of her equestrian accomplishments. Ibid.

Applying these principles, we conclude there remains a genuine issue of material fact whether Stroman's injury "arose not because of one of the inherent dangers of the sport, but because the facility's operator breached one of the duties it owes to the participant, as defined in the statute's exceptions." Hubner, supra, 203 N.J. at 206. The exceptions under both N.J.S.A. 5:15-9(b) and (d) are implicated.

Plaintiff does not present a case as extreme as that of a first-time rider matched with a known fractious horse, described in the Hubner Court's illustration. Yet, plaintiff presents a sufficiently similar case, which a jury could reasonably find falls within N.J.S.A. 5:15-9(b) as a mismatch between the rider's skills, as discovered by the operator's reasonable and prudent efforts, and the mount's propensities known to the operator. Bell formed an opinion of Stroman's capabilities not merely based on what Stroman told her, but what Bell was able to observe. Bell stated in her letter that she believed Stroman was not experienced enough to handle Nicodemus alone on the trail. She discounted Stroman's stated prior experience.

Bell specifically discussed the match of rider and mount in the specific circumstance when the horse would ride alone, away from the barn. She believed Stroman "shouldn't ride alone because she wasn't experienced enough." Bell did not specifically address Nicodemus's propensities, but, granting Stroman all reasonable inferences, a jury may conclude that Bell's opinion was based in part on her knowledge of the horse's past training and behavior.

We do not adopt the trial court's view that "an operator cannot be held liable for simply allowing a rider to ride solo." As Bell admitted, there are inherent challenges to riding solo. Although experienced riders can handle it, inexperienced riders may encounter great difficulty. Granting Stroman all reasonable inferences, we conclude a jury could find that N.J.S.A. 5:15-9(b) applies.

Alternatively, a jury could conclude that Bell's decision to match Stroman with Nicodemus for a solo ride was an "act or omission . . . that constitute[d] negligent disregard for [Stroman's] safety, which act or omission cause[d] the injury[.]" N.J.S.A.5:15-9(d). Bell admitted she was negligent in doing so. But, she did more than conclusorily assert she was negligent. She stated she believed she was negligent because she knew, evidently drawing on her own expertise, that Stroman was not experienced enough to ride Nicodemus solo. She allowed her reluctance to hurt her new friend's feelings to override her professional judgment of what was reasonable and prudent.

R

eversed and remanded. We do not retain jurisdiction.

1 Joan Bell is Christopher Bell's wife. Apparently, the two together owned the horse involved. However, only Joan Bell directly participated in the events that led to plaintiff's injuries.

2 A "paint" also known as a "pinto," is a "horse with irregular markings or spots." Webster's II New College Dictionary 858 (3d ed. 2005).

3 Stroman asserted in her deposition that Bell's son Emiliano told her that the horse "was trained to charge back to the barn." However, Emiliano's statement is hearsay and inadmissible on the motion. See R. 1:6-6 (facts on motion must be "admissible in evidence"); N.J.R.E. 801(c) (defining hearsay); N.J.R.E. 802 (providing that hearsay is inadmissible unless subject to an exception).