Third District Court of Appeal State of Florida
Opinion filed July 13, 2016. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D14-2695 Lower Tribunal No. 13-39642 ________________
Patrick Germer, Appellant,
vs.
The Churchill Downs Management, etc., et al., Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Jose M. Rodriguez, Judge.
Lindsey M. Tenberg, P.A., and Lindsey M. Tenberg (Lighthouse Point), for appellant.
Hinshaw & Culbertson LLP, and James H. Wyman, for appellees.
Before SHEPHERD, LAGOA and SCALES, JJ.
SCALES, J. Appellant, plaintiff below, Patrick Germer appeals a summary judgment
entered by the trial court in favor of Appellees, defendants below, Pinecrest
Stables, Inc., Parsons Pinecrest Farm, Inc., Santa Cruz Ranch, Inc., and Juan Pedro
Rizo Patron (collectively “Defendants”). We affirm because Florida’s Equine
Activities Liability Act (the “Act”) immunizes Defendants for the injuries
occasioned by a horse biting Germer while Germer was engaged in an equine
activity.
I. Facts
On September 26, 2012, Germer, a former licensed jockey, and his
roommate Tomislav Zivanovich decided to visit the Santa Cruz Ranch in Ocala,
Florida to see Zivanovich’s horse. Because Germer’s jockey license had expired,
Germer was required to obtain a guest pass in order to enter the stables. While
Germer was en route through the barn to see Zivanovich’s horse, another horse
named Forever Happy jumped out of his stall and bit Germer’s chest.
Approximately a year and a half later on December 27, 2013, Germer filed
suit against the owners of the stables and the owner of Forever Happy, alleging that
Defendants were negligent in allowing Forever Happy to bite Germer. Defendants
filed a motion for summary judgment, alleging that the Act, codified in chapter 773
of the Florida Statutes, immunized Defendants from any liability to Germer.
Defendants’ motion asserted that Germer was a “participant engaged in an equine
2 activity” and, therefore, pursuant to section 773.02 of the Florida Statutes, was
statutorily precluded from recovering damages. After conducting a hearing, the
trial court held that the Act immunized Defendants, and entered a final summary
judgment in favor of Defendants from which Germer takes this timely appeal.
II. Analysis1
A. The Act’s relevant provisions
The operative immunity provision of the Act is codified in section 773.02 of
the Florida Statutes, which reads, in relevant part, as follows:
Except as provided in s. 773.03, an equine activity sponsor, an equine professional, or any other person, which shall include a corporation or partnership, shall not be liable for an injury to . . . a participant resulting from the inherent risks of equine activities and, except as provided in s. 773.03, no participant . . . shall have any claim against or recover from any equine activity sponsor, equine professional, or any other person for injury . . . of the participant resulting from any of the inherent risks of equine activities.
The Act defines a “participant” as “. . . any person, whether amateur or
professional, who engages in . . . an equine activity, whether or not a fee is paid to
participate in the equine activity.” § 773.01(7), Fla. Stat. (2012). The Act
specifically defines “engages in an equine activity” as
riding, training, assisting in veterinary treatment of, driving, or being a passenger upon an equine, whether mounted or unmounted, visiting or touring or utilizing an equine facility as part of an organized event or activity, or any person assisting a participant or show management. 1 We review the trial court’s grant of summary judgment de novo. Quarantello v.
Leroy, 997 So. 2d 648, 651 (Fla. 5th DCA 2008).
3 The term “engages in an equine activity” does not include being a spectator at an equine activity, except in cases where a spectator places himself or herself in an unauthorized area.
§ 773.01(1), Fla. Stat. (2012). (emphasis added)
B. The issue on appeal
The critical, indeed dispositive, issue in this case is whether Germer was
“visiting an equine facility as part of an organized event or activity” when he was
bitten by Forever Happy. If, as Defendants argue and as the trial court held,
Germer was engaged in such an organized event or activity, then Germer was a
“participant engaged in an equine activity” and Defendants are statutorily
immunized from Germer’s claim for personal injuries. § 773.02, Fla. Stat. (2012).
C. The parties’ respective arguments
Germer argues that his visit to the stables did not constitute an organized
activity or event because Germer’s decision to visit the stables with his roommate
was made on the spur of the moment and was not coordinated with the stable
owners prior to the visit. Defendants argue that Germer’s visit was “organized” by
Zivanovich, an owner of a horse housed at the stables. Defendants further argue
that the stable’s requirement that all guests obtain a guest pass prior to entering the
horse barn – combined with the statutorily required warning posted at the stable2 –
2In order for an equine facility to avail itself of section 773.02’s exculpation, the Act requires the posting of the following warning notice:
WARNING
4 constitutes the requisite “organization” so as to immunize Defendants from
Germer’s personal injury claims.
D. Legislative intent
While the Legislature meticulously defined virtually every other operative
term in section 773.02, the statute does not provide a definition for “organized
event or activity.” Therefore, we are called upon to construe the provision,
consistent with the Act’s legislative intent. Bautista v. State, 863 So. 2d 1180, 1185
(Fla. 2003).
In order to ascertain legislative intent, we look at the statutory scheme, as a
whole, and interpret the specific provision consistent with the theme evidenced by
its statutory structure. State v. Moreno-Gonzalez, 18 So. 3d 1180, 1182 (Fla. 3d
DCA 2009) (stating that courts are “guided by the rule of statutory construction
that all parts of a statute must be read together in order to achieve a consistent
whole.”).
Plainly, the Act’s general intent is to limit the liability of Florida’s equine
facilities for injuries resulting from inherent risks associated with equine activities.
To effectuate this intent, the Legislature broadly defined those activities
Under Florida law, an equine activity sponsor or equine professional is not liable for an injury to, or the death of, a participant in equine activities resulting from the inherent risks of equine activities.
§ 773.04(2), Fla. Stat. (2012).
5 constituting an equine activity. Indeed, the Legislature carved out only one specific
exception from this broad definition, i.e., spectators in an authorized area. §
773.01(1), Fla. Stat. (2012). See Thayer v. State, 335 So. 2d 815, 817 (Fla. 1976)
(pursuant to the principle of statutory construction, expressio unius est exclusio
alterius, “the mention of one thing implies the exclusion of another”). Thus, against
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Third District Court of Appeal State of Florida
Opinion filed July 13, 2016. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D14-2695 Lower Tribunal No. 13-39642 ________________
Patrick Germer, Appellant,
vs.
The Churchill Downs Management, etc., et al., Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Jose M. Rodriguez, Judge.
Lindsey M. Tenberg, P.A., and Lindsey M. Tenberg (Lighthouse Point), for appellant.
Hinshaw & Culbertson LLP, and James H. Wyman, for appellees.
Before SHEPHERD, LAGOA and SCALES, JJ.
SCALES, J. Appellant, plaintiff below, Patrick Germer appeals a summary judgment
entered by the trial court in favor of Appellees, defendants below, Pinecrest
Stables, Inc., Parsons Pinecrest Farm, Inc., Santa Cruz Ranch, Inc., and Juan Pedro
Rizo Patron (collectively “Defendants”). We affirm because Florida’s Equine
Activities Liability Act (the “Act”) immunizes Defendants for the injuries
occasioned by a horse biting Germer while Germer was engaged in an equine
activity.
I. Facts
On September 26, 2012, Germer, a former licensed jockey, and his
roommate Tomislav Zivanovich decided to visit the Santa Cruz Ranch in Ocala,
Florida to see Zivanovich’s horse. Because Germer’s jockey license had expired,
Germer was required to obtain a guest pass in order to enter the stables. While
Germer was en route through the barn to see Zivanovich’s horse, another horse
named Forever Happy jumped out of his stall and bit Germer’s chest.
Approximately a year and a half later on December 27, 2013, Germer filed
suit against the owners of the stables and the owner of Forever Happy, alleging that
Defendants were negligent in allowing Forever Happy to bite Germer. Defendants
filed a motion for summary judgment, alleging that the Act, codified in chapter 773
of the Florida Statutes, immunized Defendants from any liability to Germer.
Defendants’ motion asserted that Germer was a “participant engaged in an equine
2 activity” and, therefore, pursuant to section 773.02 of the Florida Statutes, was
statutorily precluded from recovering damages. After conducting a hearing, the
trial court held that the Act immunized Defendants, and entered a final summary
judgment in favor of Defendants from which Germer takes this timely appeal.
II. Analysis1
A. The Act’s relevant provisions
The operative immunity provision of the Act is codified in section 773.02 of
the Florida Statutes, which reads, in relevant part, as follows:
Except as provided in s. 773.03, an equine activity sponsor, an equine professional, or any other person, which shall include a corporation or partnership, shall not be liable for an injury to . . . a participant resulting from the inherent risks of equine activities and, except as provided in s. 773.03, no participant . . . shall have any claim against or recover from any equine activity sponsor, equine professional, or any other person for injury . . . of the participant resulting from any of the inherent risks of equine activities.
The Act defines a “participant” as “. . . any person, whether amateur or
professional, who engages in . . . an equine activity, whether or not a fee is paid to
participate in the equine activity.” § 773.01(7), Fla. Stat. (2012). The Act
specifically defines “engages in an equine activity” as
riding, training, assisting in veterinary treatment of, driving, or being a passenger upon an equine, whether mounted or unmounted, visiting or touring or utilizing an equine facility as part of an organized event or activity, or any person assisting a participant or show management. 1 We review the trial court’s grant of summary judgment de novo. Quarantello v.
Leroy, 997 So. 2d 648, 651 (Fla. 5th DCA 2008).
3 The term “engages in an equine activity” does not include being a spectator at an equine activity, except in cases where a spectator places himself or herself in an unauthorized area.
§ 773.01(1), Fla. Stat. (2012). (emphasis added)
B. The issue on appeal
The critical, indeed dispositive, issue in this case is whether Germer was
“visiting an equine facility as part of an organized event or activity” when he was
bitten by Forever Happy. If, as Defendants argue and as the trial court held,
Germer was engaged in such an organized event or activity, then Germer was a
“participant engaged in an equine activity” and Defendants are statutorily
immunized from Germer’s claim for personal injuries. § 773.02, Fla. Stat. (2012).
C. The parties’ respective arguments
Germer argues that his visit to the stables did not constitute an organized
activity or event because Germer’s decision to visit the stables with his roommate
was made on the spur of the moment and was not coordinated with the stable
owners prior to the visit. Defendants argue that Germer’s visit was “organized” by
Zivanovich, an owner of a horse housed at the stables. Defendants further argue
that the stable’s requirement that all guests obtain a guest pass prior to entering the
horse barn – combined with the statutorily required warning posted at the stable2 –
2In order for an equine facility to avail itself of section 773.02’s exculpation, the Act requires the posting of the following warning notice:
WARNING
4 constitutes the requisite “organization” so as to immunize Defendants from
Germer’s personal injury claims.
D. Legislative intent
While the Legislature meticulously defined virtually every other operative
term in section 773.02, the statute does not provide a definition for “organized
event or activity.” Therefore, we are called upon to construe the provision,
consistent with the Act’s legislative intent. Bautista v. State, 863 So. 2d 1180, 1185
(Fla. 2003).
In order to ascertain legislative intent, we look at the statutory scheme, as a
whole, and interpret the specific provision consistent with the theme evidenced by
its statutory structure. State v. Moreno-Gonzalez, 18 So. 3d 1180, 1182 (Fla. 3d
DCA 2009) (stating that courts are “guided by the rule of statutory construction
that all parts of a statute must be read together in order to achieve a consistent
whole.”).
Plainly, the Act’s general intent is to limit the liability of Florida’s equine
facilities for injuries resulting from inherent risks associated with equine activities.
To effectuate this intent, the Legislature broadly defined those activities
Under Florida law, an equine activity sponsor or equine professional is not liable for an injury to, or the death of, a participant in equine activities resulting from the inherent risks of equine activities.
§ 773.04(2), Fla. Stat. (2012).
5 constituting an equine activity. Indeed, the Legislature carved out only one specific
exception from this broad definition, i.e., spectators in an authorized area. §
773.01(1), Fla. Stat. (2012). See Thayer v. State, 335 So. 2d 815, 817 (Fla. 1976)
(pursuant to the principle of statutory construction, expressio unius est exclusio
alterius, “the mention of one thing implies the exclusion of another”). Thus, against
this backdrop, we interpret the phrase “as part of an organized event or activity”
consistent with the Legislature’s overall intent to limit the liability of equine
facilities for injuries resulting from risks associated with horses.
E. Statutory application
In this case, Defendants’ equine facility maintained an internal policy that
required security passes in order to access the stable areas where Germer’s injury
occurred. The record in this case plainly establishes that, in order for Germer to
have gained access to this area, Germer had to be issued a paper visitor’s pass by
the stable’s security personnel.
Put another way, in order for Germer to have gained access to the area where
his injury occurred, Germer had to jump over an established hurdle. In our view,
the creation and existence of such a protocol constituted the requisite
“organization” so as to make Germer’s visit to the stables “an organized activity”
as defined in section 773.01(1) of the Florida Statutes.
III. Conclusion
6 Therefore, we agree with the trial court’s analysis of the uncontested facts of
this case and its determination that the Act immunizes Defendants from any
liability resulting from Germer’s horse bite.3
Affirmed.
3 If, as here, the Act’s immunity provisions apply to exculpate an equine activity sponsor, a claimant is saddled with the burden of establishing an applicable exception to exculpation under section 773.03(2). Germer makes the alternate argument that a factual dispute exists as to whether any of the exceptions to section 773.02 articulated in section 773.03(2)(a)-(e) apply. Without further discussion, we affirm the trial court’s determination that no genuine issue of material fact exists and none of the exceptions to section 773.02 apply to this case.