LEWIS v. ERIE COUNTY AGRICULTURAL SOCIETY

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Supreme Court, Appellate Division, Fourth Department, New York.

Cynthia LEWIS and Joseph Lewis, Respondents, v. ERIE COUNTY AGRICULTURAL SOCIETY and Brian Dygert, Appellants.

Decided: December 31, 1998

Present:  DENMAN, P.J., PINE, PIGOTT, Jr., CALLAHAN and BOEHM, JJ. Saperston & Day, P.C., Lynda M. Tarantino, by Marni Bogart, Buffalo, for Defendants-Appellants. Miserendino, Celniker, Seegert & Estoff, P.C. by Jonathon Estoff, Buffalo, for Plaintiffs-Respondents.

Plaintiffs commenced this action to recover damages for personal injuries sustained by Cynthia Lewis (plaintiff) when she was kicked by her own horse at a horse show run by defendants.   Defendants appeal from an order denying their motion for summary judgment dismissing the complaint.   Defendants contend that, as a matter of law, plaintiff assumed the risk of being kicked by a horse and that, in any event, her injuries were not proximately caused by defendants' alleged negligence.

 We conclude that plaintiff, a highly experienced horsewoman who for decades has been in the business of buying, selling, breeding and showing horses, knowingly assumed the risk of being kicked by her horse (see, Rubenstein v. Woodstock Riding Club, 208 A.D.2d 1160, 1160-1161, 617 N.Y.S.2d 603;  see generally, Morgan v. State of New York, 90 N.Y.2d 471, 484-486, 662 N.Y.S.2d 421, 685 N.E.2d 202;  Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 657, 543 N.Y.S.2d 29, 541 N.E.2d 29;  Turcotte v. Fell, 68 N.Y.2d 432, 438-439, 510 N.Y.S.2d 49, 502 N.E.2d 964).   The risk of being injured is an ordinary, usual and inherent risk of working with animals such as horses (see, Rubenstein v. Woodstock Riding Club, supra, at 1161, 617 N.Y.S.2d 603, cited with approval in Morgan v. State of New York, supra, at 484, 662 N.Y.S.2d 421, 685 N.E.2d 202;  see also, Turcotte v. Fell, supra;  Arbegast v. Board of Educ., 65 N.Y.2d 161, 490 N.Y.S.2d 751, 480 N.E.2d 365;  Harrington v. Colvin, 237 A.D.2d 992, 656 N.Y.S.2d 1017, lv. denied 90 N.Y.2d 808, 664 N.Y.S.2d 269, 686 N.E.2d 1364;  Hammond v. Spruce Meadow Farm, 199 A.D.2d 1014, 605 N.Y.S.2d 586).   In reaching our conclusion, we note the “considerable experience” of plaintiff in showing horses, “her admitted familiarity with the particular horse and premises, and her awareness and appreciation” of the very risk that eventuated (Hammond v. Spruce Meadow Farm, supra, at 1014, 605 N.Y.S.2d 586;  see also, Rubenstein v. Woodstock Riding Club, supra, at 1161, 617 N.Y.S.2d 603).   Under the circumstances, defendants fulfilled their legal duty to plaintiffs, which was “ ‘to make the conditions as safe as they appeared to be’ ” (Morgan v. State of New York, supra, at 484, 662 N.Y.S.2d 421, 685 N.E.2d 202, quoting Turcotte v. Fell, supra, at 439, 510 N.Y.S.2d 49, 502 N.E.2d 964).

Order unanimously reversed on the law without costs, motion granted and complaint dismissed.

MEMORANDUM: