Tindall v. Ellenberg

Appellate Division of the Supreme Court of New York

Tindall v. Ellenberg

281 A.D.2d 225, 722 N.Y.S.2d 16, 2001 N.Y. App. Div. LEXIS 2452

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 13, 2001

StatusPublished

Cited by2 cases

This text of 281 A.D.2d 225 (Tindall v. Ellenberg) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tindall v. Ellenberg, 281 A.D.2d 225, 722 N.Y.S.2d 16, 2001 N.Y. App. Div. LEXIS 2452 (N.Y. Ct. App. 2001).

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Opinion

Order, Supreme Court, New York County (Louis York, J.), entered on or about May 5, 2000, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff asserts that she sustained personal injuries when, participating in a fox hunt, defendant’s horse kicked as plaintiff was attempting to pass it, causing plaintiff to fall from her horse. Plaintiff argues that she did not assume the enhanced risk of defendant’s recklessness. However, the offending horse was clearly marked for its propensities with a red tail ribbon in conformity with the custom of the sport. The risk that defendant’s horse would kick if crowded was not a unique danger over and above the usual dangers inherent in this sport, and should, as a matter of law, have been appreciated by plaintiff (see, Morgan v State of New York, 90 NY2d 471, 484-485, 486; Maddox v City of New York, 66 NY2d 270, 279; Saravia v Makkos of Brooklyn, 264 AD2d 576). We note the release and waiver of liability signed by plaintiff in which she acknowledged that cross-country horseback riding and fox hunting are “inherently dangerous and unpredictable activities” and that she was voluntarily assuming all risk of injury. Concur — Williams, J. P., Tom, Andrias, Lerner and Saxe, JJ.

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Order, Supreme Court, New York County (Louis York, J.), entered on or about May 5, 2000, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff asserts that she sustained personal injuries when, participating in a fox hunt, defendant’s horse kicked as plaintiff was attempting to pass it, causing plaintiff to fall from her horse. Plaintiff argues that she did not assume the enhanced risk of defendant’s recklessness. However, the offending horse was clearly marked for its propensities with a red tail ribbon in conformity with the custom of the sport. The risk that defendant’s horse would kick if crowded was not a unique danger over and above the usual dangers inherent in this sport, and should, as a matter of law, have been appreciated by plaintiff (see, Morgan v State of New York, 90 NY2d 471, 484-485, 486; Maddox v City of New York, 66 NY2d 270, 279; Saravia v Makkos of Brooklyn, 264 AD2d 576). We note the release and waiver of liability signed by plaintiff in which she acknowledged that cross-country horseback riding and fox hunting are “inherently dangerous and unpredictable activities” and that she was voluntarily assuming all risk of injury. Concur — Williams, J. P., Tom, Andrias, Lerner and Saxe, JJ.

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Bluebook (online)

281 A.D.2d 225, 722 N.Y.S.2d 16, 2001 N.Y. App. Div. LEXIS 2452, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tindall-v-ellenberg-nyappdiv-2001.

Opinion

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