Kush v. Wentworth

790 N.E.2d 912, 339 Ill. App. 3d 157, 274 Ill. Dec. 139, 2003 Ill. App. LEXIS 674
CourtAppellate Court of Illinois
DecidedMay 29, 2003
Docket2-01-0877
StatusPublished
Cited by7 cases

This text of 790 N.E.2d 912 (Kush v. Wentworth) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kush v. Wentworth, 790 N.E.2d 912, 339 Ill. App. 3d 157, 274 Ill. Dec. 139, 2003 Ill. App. LEXIS 674 (Ill. Ct. App. 2003).

Opinion

JUSTICE O’MALLEY

delivered the opinion of the court:

Plaintiff sued defendant seeking to recover damages for injuries that she suffered when defendant’s horse kicked her while plaintiff and defendant were participating in a group horse ride. As amended, plaintiffs complaint contained three counts alleging, respectively, that defendant violated the Animal Control Act (510 ILCS 5/1 et seq. (West 2000)), that defendant was negligent, and that defendant’s conduct was willful and wanton. Based on its ruling that the Equine Activity Liability Act (Act) (745 ILCS 47/1 et seq. (West 2000)) barred the first two counts of the complaint on their faces and that defendant’s alleged conduct did not rise to the level of willful and wanton conduct, the trial court granted defendant’s motion for summary judgment. Plaintiff timely appeals. We reverse with respect to counts I and II and affirm with respect to count III.

The pleadings and depositions reveal the following facts. On November 27, 1997, Thanksgiving Day, plaintiff and defendant were participants in a group horse ride (the Thanksgiving ride). A total of about 40 riders participated in the Thanksgiving ride. Before the ride, the riders assembled at the Fox Meadows Farms in Naperville. All the riders and the horses that they were riding left the stable together and proceeded to a trail that was in a nearby forest preserve. After reaching the trail, the riders split into two smaller groups of about 20 riders each. The riders referred to these smaller groups as the “fast group” and the “slow group.” The pace of the slow group was mostly walking and trotting, with some cantering.

Plaintiff and defendant both rode with the slow group. Plaintiff and defendant were both experienced horse riders. Defendant’s horse was named “Skip.”

About two weeks prior to the Thanksgiving ride, defendant rode Skip on a trail ride with two other riders. During this prior ride, when one of the other horses tried to pass Skip on Skip’s left, Skip kicked out with his hind legs at the other horse and may have grazed the other horse. According to defendant, this was the first time, in the more than a year that she had owned Skip, that Skip had kicked out at another horse.

About an hour after the start of the Thanksgiving ride, plaintiff and defendant had a brief conversation as they were riding. Defendant told plaintiff about the prior incident in which Skip kicked out at another horse. According to plaintiff, defendant sought advice as to possible corrective measures that defendant could take with Skip. During the conversation, defendant told plaintiff that she was riding in the slow group on the Thanksgiving ride because of Skip’s prior “kicking out” incident. Defendant also vaguely recalled telling plaintiff during the conversation that she had tied a red ribbon in Skip’s tail before starting the Thanksgiving ride. According to defendant, she tied the red ribbon in Skip’s tail as a precaution to warn other riders that Skip could kick out. Defendant acknowledged that when she returned to the stable after the Thanksgiving ride the red ribbon was no longer in Skip’s tail. Defendant did not know how or when the red ribbon disappeared. Plaintiff denied that defendant told her about a red ribbon in Skip’s tail. Plaintiff also denied that she ever saw a red ribbon in Skip’s tail.

During the Thanksgiving ride, between 15 minutes and an hour after the conversation between plaintiff and defendant, plaintiff began to canter the horse she was riding. Plaintiff planned to pass three or four other horses that were in front of her. Skip was one of the horses that plaintiff intended to pass. While her horse was cantering, plaintiff approached Skip from behind and to Skip’s left. When plaintiff was about three feet from Skip, Skip kicked out, striking plaintiff on the leg. Skip’s kick broke plaintiffs leg.

In her discovery deposition, plaintiff testified that she was aware of three precautions that a rider could take with respect to a group ride if the rider’s horse was a kicker. These precautions were (1) to put a red ribbon in the horse’s tail; (2) to ride at the back of the group; and (3) to refrain from going on group rides. Plaintiff considered these precautions to be part of horse riding etiquette. Plaintiff opined that if defendant had taken any one of these precautions with respect to the Thanksgiving ride, Skip would not have been in a position to kick out and injure plaintiff. Prior to the Thanksgiving ride, plaintiff was not aware that Skip had any particular reputation as a dominant or aggressive horse.

In her discovery deposition, defendant testified that she had owned Skip since 1996 and that Skip was “not a very competitive horse.” Defendant testified that, in view of Skip’s prior kicking incident and because Skip was “being a handful” on the day of the Thanksgiving ride, she thought it would be safer to join the slow group for the Thanksgiving ride. Defendant explained that by “being a handful” she meant that Skip was feeling energetic. Defendant denied that she had any difficulty controlling Skip on the Thanksgiving ride. Defendant believed that she was being overly cautious by putting a red ribbon in Skip’s tail before the ride.

In her discovery deposition, Birgitta Martin, whose husband is plaintiffs cousin, testified that she was a participant in the Thanksgiving ride and that she saw Skip kick plaintiff. Martin was riding in the slow group behind plaintiff when Skip kicked plaintiff. Prior to the kicking incident, Martin had observed Skip at various times throughout the Thanksgiving ride. Martin testified that she never saw a red ribbon in Skip’s tail at any time during the Thanksgiving ride. Before the Thanksgiving ride, Martin was not aware of Skip having a reputation as a kicker or a mean horse.

Plaintiffs complaint, as amended, sought damages from defendant for the injuries that plaintiff suffered as a result of Skip kicking her. The complaint contained three counts. Count I alleged that defendant was hable under section 16 of the Animal Control Act (510 ILCS 5/16 (West 2000)). Count II alleged that defendant was liable because she was negligent. Count III alleged that defendant was liable because she engaged in willful and wanton conduct that included, inter alia, defendant’s failure to tag Skip as a “kicker”; failure to keep Skip at the back of the group; and failure to refrain from taking Skip on the Thanksgiving ride.

Defendant filed a motion for summary judgment. The trial court granted the motion, finding that the Act applied to bar recovery for plaintiff as to all three counts of her complaint.

Plaintiff filed a timely motion to reconsider. Plaintiff argued that defendant’s conduct constituted willful and wanton conduct. Following a hearing on the matter, the trial court denied plaintiffs motion to reconsider.

On appeal, plaintiff contends that the trial court erred in granting summary judgment in favor of defendant. We review a trial court’s grant of summary judgment de novo. Morris v. Margulis, 197 Ill. 2d 28, 35 (2001).

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Cite This Page — Counsel Stack

Bluebook (online)
790 N.E.2d 912, 339 Ill. App. 3d 157, 274 Ill. Dec. 139, 2003 Ill. App. LEXIS 674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kush-v-wentworth-illappct-2003.