Fishman v. GRBR, Inc.

2017 MT 245, 403 P.3d 245, 389 Mont. 41, 2017 Mont. LEXIS 603, 2017 WL 4415795
CourtMontana Supreme Court
DecidedOctober 5, 2017
DocketDA 17-0214
StatusPublished
Cited by3 cases

This text of 2017 MT 245 (Fishman v. GRBR, Inc.) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fishman v. GRBR, Inc., 2017 MT 245, 403 P.3d 245, 389 Mont. 41, 2017 Mont. LEXIS 603, 2017 WL 4415795 (Mo. 2017).

Opinions

JUSTICE RICE

delivered the Opinion of the Court.

¶1 Neill Fishman (Fishman) appeals the entry of summaryjudgment by the Eleventh Judicial District Court, Flathead County in favor of GRBR, Inc. (GRBR). We affirm, addressing the following issue:

[42]*42 Did the District Court err by granting summary judgment to the defendant pursuant to the “Equine Activities Act”?

FACTUAL AND PROCEDURAL BACKGROUND

¶2 GRBR is a Montana corporation owned by Don Gaynor (Don) and operated by Don and his wife, Nancy Gaynor (Nancy). GRBR offered guest cabins and trail horse rides near Whitefish, Montana, providing about 1,000 trail rides per year. Fishman was a participant on a GRBR trail ride in June 2014.

¶3 Sometime before the day of the ride, Fishman called GRBR and booked a trail ride for himself and some relatives. During the call, Don asked Fishman for his height and weight to determine which horse would work best for him. Fishman stated he was over 6 feet tall and weighed 210 pounds. Based on Fishman’s size, Don chose the horse, “Big,” a large horse capable of carrying heavier riders, for Fishman to ride. Big’s saddle and associated tack are specifically designed for him.

¶4 GRBR presented Fishman with a Supervised Equine Rental Agreement and Release Form (Agreement) prior to the trail ride. The Agreement stated that “saddle girths (fasteners around the horse’s belly) may loosen during equine activity, which may cause slippage of the saddle and the potential fall from the horse.”1 Fishman read and signed the Agreement.

¶5 GRBR’s standard pre-ride procedure includes saddling the horses and checking saddle cinches a minimum of three (3) times before a riding participant mounts the horse. Don saddled Big before Fishman arrived and, consistent with procedure, Big’s saddle cinch was checked several times before the horse was mounted. A wrangler rode Big before Fishman arrived and the saddle cinch was checked again.

¶6 After the participant mounts the horse, GRBR wranglers give oral instructions and observe the participant riding the horse around the corral in a safety check to address any equipment adjustments, observe how the participant manages the horse, provide instruction, and answer questions or concerns. Participants are instructed to ask for help if they believe something is wrong. Fishman had a low level of riding experience, and Don explained to him how to hold the reins and direct Big’s movements. Fishman then rode Big around the corral. Nancy noticed Fishman was leaning to one side and tipping the saddle. Nancy instructed Fishman to shift his weight and to keep the saddle [43]*43centered over the horse. Fishman complied before departing the corral for the trail.

¶7 Upon completion of the safety check, the ride participants were taken out on the trail. Nancy, on horseback, led the riders out of the corral and down the trail at a walking pace. During the ride, Fishman attempted to re-center the saddle by shifting back and forth in the stirrups. Nancy became aware Fishman was having a problem when Fishman yelled at her. Nancy observed Fishman sliding to one side and then attempting to jump off the horse, landing on the ground. The saddle remained affixed on the horse, but resting on its side. Big did not buck or react during the incident.

¶8 Fishman filed this damage action against GRBR, asserting negligence generally and specifically mentioning only inaction by Nancy as the apparent assertion of breach of duty, and not referencing the actions of GRBR’s other personnel: “Nancy Gaynor never physically touched or inspected Neill’s saddle after it was placefd] upon his horse Big, nor after she noticed it was off center and told Neill to recenter, and at no time before or after Neill mounted Big.” GRBR moved for summary judgment, arguing Fishman’s accident was caused by a risk inherent in equine activities for which liability is precluded under § 27-1-727, MCA. Fishman also moved for summary judgment, arguing Nancy failed in the duty to inspect the saddle, which satisfied an exception to the liability protection of the equine statute.

¶9 Concluding there were no genuine issues of material fact, the District Court granted summary judgment to GRBR, reasoning that “among the risks inherent to equine activities is the risk that saddle girths may loosen during a ride and cause slippage of the saddle, which may result in a fall. It is out of this very type of inherent risk—of which [Fishman] was specifically warned in the Agreement and of which he acknowledged his understanding—that Fishman’s negligence claim arises....” The Court further concluded that Fishman had failed to establish that a statutory exception applied, reasoning that “Fishman has not alleged or shown that any piece of tack or equipment broke, was otherwise defective or did not work or perform as expected.” Fishman appeals.

STANDARD OF REVIEW

¶10 We review de novo a district court’s grant or denial of summary judgment, applying the same criteria of M. R. Civ. P. 56 as a district court. Pilgeram v. GreenPoint Mortg. Funding, Inc., 2013 MT 354, ¶ 9, 373 Mont. 1, 313 P.3d 839. Summary judgment is appropriate when the moving party demonstrates both the absence of any genuine issues [44]*44of material fact and entitlement to judgment as a matter of law. M. R. Civ. P. 56(c)(3); Bird v. Cascade Cnty., 2016 MT 345, ¶ 9, 386 Mont. 69, 386 P.3d 602. We review a district court’s conclusions of law to determine whether they are correct. Pilgeram, ¶ 9.

DISCUSSION

¶11 Did the District Court err by granting summary judgment to the defendant pursuant to the “Equine Activities Act”?

¶12 Sections 27-1-725 through -727, MCA, commonly referred to as the “Equine Act” or “Equine Activities Act,” states that “the policy of the state of Montana” is “that a person is not liable for damages sustained by another solely as the result of risks inherent in equine activities if those risks are or should be reasonably obvious, expected, or necessary to persons engaged in equine activities.” Section 27-1-725, MCA. We have stated that the “practical effect” of the Act is to “pronounce that equine activity sponsors do not have a duty to protect participants from unavoidable risks, or the inherent risks of equine activities of which the participant is or should be aware,” explaining that:

If the injury is due to an inherent risk of equine activities and the participant expected that risk, then the equine activity sponsor cannot have been negligent—the injury was due to an unavoidable risk of which the participant was aware, so the sponsor could not have breached any duties to warn of or eliminate the risk. Thus, so long as the participant expects a risk inherent in equine activities, pursuant to the statute, the equine activity sponsor may not be held liable for injury suffered as a result of that risk.

McDermott v. Carie, 2005 MT 293, ¶ 18, 329 Mont. 295, 124 P.3d 168.

¶13 The Act provides, in pertinent part:

Equine activity liability limitations. (1) Except as provided in subsections (2) and (3), an equine activity sponsor or an equine professional is not liable for an injury to or the death of a participant engaged in an equine activity resulting from risks inherent in equine activities.

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Cite This Page — Counsel Stack

Bluebook (online)
2017 MT 245, 403 P.3d 245, 389 Mont. 41, 2017 Mont. LEXIS 603, 2017 WL 4415795, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fishman-v-grbr-inc-mont-2017.