TINDALL v. ELLENBERG (2001)

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 N.Y.2d 471, 484-485, 486, 662 N.Y.S.2d 421, 685 N.E.2d 202;  Maddox v. City of New York, 66 N.Y.2d 270, 279, 496 N.Y.S.2d 726, 487 N.E.2d 553;  Saravia v. Makkos of Brooklyn, 264 A.D.2d 576, 694 N.Y.S.2d 393).   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.