Mark Philip Painter, Presiding Judge.
{¶ 1} There are no zebras in this case; but there could be. The trial court based its ruling on Ohio’s equine liability immunity law, which defines an “equine” as “a horse, pony, mule, donkey, hinny, zebra, zebra hybrid, or alpaca.”
(A similar Florida statute
defines an equine as “a horse, pony, mule, or donkey,” leaving one to speculate whether hinny, zebra, zebra hybrid, and alpaca riding are more common — or more deserving of protection — in Ohio than in Florida.) But in our case, a horse is a horse.
{¶ 2} This is a case of first impression in Ohio, probably because no one before has been audacious enough to try to ride the statute to immunity in a case like this one. The trial court granted summary judgment. We reverse.
Donahue’s Dogs Chase Gibson’s Horse, Causing it to Throw Gibson
{¶ 3} Appellant, Ann Sergeant Gibson, was injured after being thrown by her horse while riding in Clippenger Field, located in the City of the Village of Indian Hill (yes, that is its official name). Appellee Susan Donahue owned two full-grown Irish Setters that she allowed to run off-leash in the field, even though the field was clearly marked “This area restricted to Equestrian use only.” Donahue’s dogs chased Gibson’s horse, causing the horse to throw Gibson into a tree with sufficient force to break her helmet. She suffered serious injuries.
{¶ 4} The facts are simple enough, but lawyers and legislators can make things seem complicated. Somehow, Donahue’s lawyers found R.C. 2305.321, entitled “Immunity as to equine activity risks,” which is noteworthy mainly for using the word “farrier” ten times. Because the statute is a bit obscure, we have included it here in its entirety, as an appendix.
{¶ 5} We have found only one Ohio case interpreting this gem of legislative drafting, but that case is not helpful to our issues here.
We have also searched in vain for any way that this statute has anything to do with this case.
Three Hurdles
{¶ 6} Gibson’s first assignment of error asserts that summary judgment was improper. We review the grant of summary judgment in favor of Donahue de novo, using the same standard that the trial court applied.
Under Civ.R. 56(C), summary judgment for Donahue was appropriate if (1) there was no genuine issue of material fact, (2) Donahue was entitled to judgment as a matter of law, and (3) after construing the evidence most favorably for Gibson, reasonable minds could only reach a conclusion adverse to Gibson.
{¶ 7} For Donahue to prevail, she had to clear three legal hurdles by establishing that (1) Indian Hill was the “sponsor” of an “equine event,” (2) Gibson was engaging in an “equine activity” as defined by the statute, and (3) the immunity granted to the sponsor also shielded anyone else. And, as Judge Hildebrandt notes in his concurrence, even if all those hurdles were jumped, another section of the law might trump the equine act.
{¶ 8} The first hurdle is questionable at best, the second even more so, but the third is insurmountable in this case. And, as far as we know, Donahue does not even have a horse, only two dogs.
Did Indian Hill Sponsor Gibson’s Ride?
{¶ 9} The trial court, in granting summary judgment, held that Indian Hill was immune as a “sponsor” of an equine activity. That may or may not be so, but Indian Hill was not even sued. Donahue was sued.
{¶ 10} While it is true that riders must pay a fee to Indian Hill to ride over
any
property in the city, we are skeptical that this fact alone would make Indian Hill a “sponsor” of any person riding within the city. The city manager of Indian Hill testified as follows:
{¶ 11} “Q: Okay. Is it fair to say that you don’t sponsor any type of equestrian events in Clippenger Field?
{¶ 12} “MR. SKINNER: Objection.
{¶ 13} “MR. PHILLIPS: Objection. Calls for legal conclusion. You can answer.
{¶ 14} “A: You know, I’ve read that section of the law, it’s — to me it’s tough to read so—
{¶ 15} “BY MR. DRINNON: I’m trying to do the best I can.
{¶ 16} “A: I really — I don’t have a conclusion on that as to how we fit into that section of law in terms of what is sponsored and what is an activity.”
{¶ 17} If the meaning of “sponsor” calls for a legal conclusion, then it should be defined in the statute, which it is not. “Equine activity sponsor” is purportedly defined, but it is not a true, but a circular definition — one that uses the word itself to define itself. “Sponsor” is not defined at all. Lacking a statutory definition, we resort to dictionaries. Black’s Law Dictionary states that a sponsor is “1. One who acts as a surety for another. 2. A legislator who proposes a bill. 3.
Civil law.
One who voluntarily intervenes for another without being requested to do so.”
The only definition of sponsor in Webster’s Third International Dictionary, Unabridged, that could be relevant here is “one who assumes responsibility for some other person or thing.”
{¶ 18} Neither definition seems to help' Indian Hill, much less Donahue. “Sponsor” as a verb is defined as “to be or stand sponsor for: accept responsibility for.”
Of course, the statute seeks to
avoid
responsibility, not to accept it.
{¶ 19} Perhaps we can glean from the definitions and the statute that the latter seeks to immunize a person or entity that would otherwise be regarded as taking responsibility for an equine activity. Thus interpreted, it makes some sense — why write a statute to immunize activity that would give rise to no liability in the first place? If Indian Hill had indeed sponsored an event, and Gibson’s horse had fallen because of a gopher hole in the field, she might have made a case against the sponsor of the event. In that instance, the statute arguably would have immunized Indian Hill, the sponsor, from that type of “inherent risk of equine activity.” The legislature obviously intended to grant just such immunity. (When the statute is digested, it seems only to immunize activity that would not have given rise to liability under the common law in the first place.) Even had Indian Hill sponsored an event, if Donahue had loosed her dogs to chase the horses in a sponsored event, the immunity would not have shielded her — only the sponsor.
{¶ 20} But even were we to hold that the first hurdle — sponsorship—could be jumped, there are still two more, each progressively higher.
Was
Gibson Engaged in an “Equine Activity”?
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Mark Philip Painter, Presiding Judge.
{¶ 1} There are no zebras in this case; but there could be. The trial court based its ruling on Ohio’s equine liability immunity law, which defines an “equine” as “a horse, pony, mule, donkey, hinny, zebra, zebra hybrid, or alpaca.”
(A similar Florida statute
defines an equine as “a horse, pony, mule, or donkey,” leaving one to speculate whether hinny, zebra, zebra hybrid, and alpaca riding are more common — or more deserving of protection — in Ohio than in Florida.) But in our case, a horse is a horse.
{¶ 2} This is a case of first impression in Ohio, probably because no one before has been audacious enough to try to ride the statute to immunity in a case like this one. The trial court granted summary judgment. We reverse.
Donahue’s Dogs Chase Gibson’s Horse, Causing it to Throw Gibson
{¶ 3} Appellant, Ann Sergeant Gibson, was injured after being thrown by her horse while riding in Clippenger Field, located in the City of the Village of Indian Hill (yes, that is its official name). Appellee Susan Donahue owned two full-grown Irish Setters that she allowed to run off-leash in the field, even though the field was clearly marked “This area restricted to Equestrian use only.” Donahue’s dogs chased Gibson’s horse, causing the horse to throw Gibson into a tree with sufficient force to break her helmet. She suffered serious injuries.
{¶ 4} The facts are simple enough, but lawyers and legislators can make things seem complicated. Somehow, Donahue’s lawyers found R.C. 2305.321, entitled “Immunity as to equine activity risks,” which is noteworthy mainly for using the word “farrier” ten times. Because the statute is a bit obscure, we have included it here in its entirety, as an appendix.
{¶ 5} We have found only one Ohio case interpreting this gem of legislative drafting, but that case is not helpful to our issues here.
We have also searched in vain for any way that this statute has anything to do with this case.
Three Hurdles
{¶ 6} Gibson’s first assignment of error asserts that summary judgment was improper. We review the grant of summary judgment in favor of Donahue de novo, using the same standard that the trial court applied.
Under Civ.R. 56(C), summary judgment for Donahue was appropriate if (1) there was no genuine issue of material fact, (2) Donahue was entitled to judgment as a matter of law, and (3) after construing the evidence most favorably for Gibson, reasonable minds could only reach a conclusion adverse to Gibson.
{¶ 7} For Donahue to prevail, she had to clear three legal hurdles by establishing that (1) Indian Hill was the “sponsor” of an “equine event,” (2) Gibson was engaging in an “equine activity” as defined by the statute, and (3) the immunity granted to the sponsor also shielded anyone else. And, as Judge Hildebrandt notes in his concurrence, even if all those hurdles were jumped, another section of the law might trump the equine act.
{¶ 8} The first hurdle is questionable at best, the second even more so, but the third is insurmountable in this case. And, as far as we know, Donahue does not even have a horse, only two dogs.
Did Indian Hill Sponsor Gibson’s Ride?
{¶ 9} The trial court, in granting summary judgment, held that Indian Hill was immune as a “sponsor” of an equine activity. That may or may not be so, but Indian Hill was not even sued. Donahue was sued.
{¶ 10} While it is true that riders must pay a fee to Indian Hill to ride over
any
property in the city, we are skeptical that this fact alone would make Indian Hill a “sponsor” of any person riding within the city. The city manager of Indian Hill testified as follows:
{¶ 11} “Q: Okay. Is it fair to say that you don’t sponsor any type of equestrian events in Clippenger Field?
{¶ 12} “MR. SKINNER: Objection.
{¶ 13} “MR. PHILLIPS: Objection. Calls for legal conclusion. You can answer.
{¶ 14} “A: You know, I’ve read that section of the law, it’s — to me it’s tough to read so—
{¶ 15} “BY MR. DRINNON: I’m trying to do the best I can.
{¶ 16} “A: I really — I don’t have a conclusion on that as to how we fit into that section of law in terms of what is sponsored and what is an activity.”
{¶ 17} If the meaning of “sponsor” calls for a legal conclusion, then it should be defined in the statute, which it is not. “Equine activity sponsor” is purportedly defined, but it is not a true, but a circular definition — one that uses the word itself to define itself. “Sponsor” is not defined at all. Lacking a statutory definition, we resort to dictionaries. Black’s Law Dictionary states that a sponsor is “1. One who acts as a surety for another. 2. A legislator who proposes a bill. 3.
Civil law.
One who voluntarily intervenes for another without being requested to do so.”
The only definition of sponsor in Webster’s Third International Dictionary, Unabridged, that could be relevant here is “one who assumes responsibility for some other person or thing.”
{¶ 18} Neither definition seems to help' Indian Hill, much less Donahue. “Sponsor” as a verb is defined as “to be or stand sponsor for: accept responsibility for.”
Of course, the statute seeks to
avoid
responsibility, not to accept it.
{¶ 19} Perhaps we can glean from the definitions and the statute that the latter seeks to immunize a person or entity that would otherwise be regarded as taking responsibility for an equine activity. Thus interpreted, it makes some sense — why write a statute to immunize activity that would give rise to no liability in the first place? If Indian Hill had indeed sponsored an event, and Gibson’s horse had fallen because of a gopher hole in the field, she might have made a case against the sponsor of the event. In that instance, the statute arguably would have immunized Indian Hill, the sponsor, from that type of “inherent risk of equine activity.” The legislature obviously intended to grant just such immunity. (When the statute is digested, it seems only to immunize activity that would not have given rise to liability under the common law in the first place.) Even had Indian Hill sponsored an event, if Donahue had loosed her dogs to chase the horses in a sponsored event, the immunity would not have shielded her — only the sponsor.
{¶ 20} But even were we to hold that the first hurdle — sponsorship—could be jumped, there are still two more, each progressively higher.
Was
Gibson Engaged in an “Equine Activity”?
{¶ 21} We are also skeptical that simply riding one’s own horse is “equine activity” as defined in the statute. As we have seen, a ride that is “sponsored” might fit, but an unsponsored ride would not, at least under Ohio’s statute. Some states define “equine activity” much more broadly than does Ohio. For instance, North Carolina defines it as “any activity involving an equine.”
{¶ 22} But, under the definition in Ohio’s statute,
just riding one’s own horse in a non-sponsored event is not “equine activity.” But whether it could be or not, the next hurdle is far too high for Gibson to surmount.
“Anyone in the World”?
{¶ 23} Donahue next contends that the language of the statute immunizes
anyone.
She cites this language: “an equine activity sponsor, equine activity participant, equine professional, veterinarian, farrier,
or other person
is not liable
in damages in a tort or other civil action for harm that an equine activity participant allegedly sustains during an equine activity and that results from an inherent risk of an equine activity.”
(Emphasis added.)
{¶ 24} For Donahue to prevail, we would have to read the phrase as “equine activity sponsor, equine activity participant, equine professional, veterinarian, farrier,
or any other person in the whole world.”
{¶ 25} A person who negligently crashes an airplane into the crowd at an equine event would thus be immune from liability, at least for injuries to thrown riders, as would someone who lets his or her dog run out in the middle of a steeplechase.
{¶ 26} The old legal maximum ejusdem generis surely applies here: “where general words follow the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general class as those enumerated.”
Words like “any other person” will be read as any other of like kind. “There is a general expression, ‘other person whatsoever;’ but, according to a well established rule in the construction of statutes, general terms following particular ones apply only to such persons or things as are
ejusdem generis
with those comprehended in the language of the legislature.”
{¶ 27} The Ohio Supreme Court has frequently applied ejusdem generis as a canon of construction: “where in a statute terms are first used which are confined to a particular class of objects having well-known and definite features and characteristics, and then afterwards a term having perhaps a broader signification is conjoined, such latter term is, as indicative of legislative intent, to be considered as embracing only things of a similar character as those comprehended by the preceding limited and confined terms.”
{¶ 28} The newest edition of Black’s Law Dictionary states, “For example, in the phrase
horses, cattle, sheep, pigs, goats, or any other barnyard animal,
the general language
or any other barnyard animal
* * * would probably be held to include only four-legged, hoofed mammals.”
(Emphasis sic.) Similarly,
“* * *[b]y the words ‘other things,’ nothing shall be intended but things of the like nature with those mentioned.”
{¶ 29} In the present case, we could interpret the “other person” following the word “farrier,” to include “blacksmith,” or perhaps “horse of a different color”; but we cannot interpret it to mean “person who lets dogs run loose in an equestrian area.”
{¶ 30} The legislature intended to immunize people sponsoring an equine event — not strangers. The equestrian here was the victim of a third party. We do not read the statute as immunizing third parties. In fact, “The underlying purpose of these statutes is to protect equine professionals from liability by eliminating the risk of lawsuits that arise out of the inherent dangers of horseback riding, while not exonerating horse owners from liability for negligence.”
If those that the statute seeks to immunize — horse and stable owners, farriers and other equine professionals — are not exempt from negligence, it is difficult to imagine that the law immunizes owners of dogs who chase horses.
{¶ 31} We have discovered one case on point, though it has not been cited by the parties. It seems that this very theory was tried in South Dakota, which has a similar statute. There, the defendant, a pipeline company, had left a trench partially unfilled. When the plaintiffs horse fell in the ditch, the pipeline company trotted out the equine liability statute. The South Dakota Supreme Court was not tricked and held, as do we, that “[a]pplying the principle of
ejusdem generis,
‘any other person’ is limited to other people involved in equine activities and does not extend blanket immunity. If the legislature intended to provide immunity to all people, it would not have specifically listed those entitled to immunity.”
Just so.
A Hurdle Too High
(¶ 32} Thus, whether or not Donohue could jump the first two hurdles to immunity, which seems at best doubtful, the last one is a wall, not a hurdle. It is beyond cavil that the equine immunity statute was not intended to, should not, and does not apply to dog owners who allow their dogs to chase horses.
{¶ 33} We do note, however, that the legislature has enacted statutes relevant to this case — see R.C. 955.22(C) (confinement or restraint of dogs); R.C.
955.28(B) (liability of dog owner for damages). We do not need to consider whether the latter statute would trump the equine statute, because we hold that the equine statute simply does not apply in this case.
{¶ 34} We sustain Donahue’s first assignment of error and reverse the trial court’s grant of summary judgment. We remand the case for further proceedings consistent with this opinion. While we are tempted to address Donahue’s second assignment — that R.C. 2305.321 is unconstitutionally vague — our holding makes that issue moot.
Judgment reversed and cause remanded.
Gorman, J., concurs.
Hildebrandt, J., concurs separately.