Question of Fact About Whether Rider Assumed Risk of Being Kicked by Horse—Allegations Defendant Heightened Risk

The Third Department there was a question of fact whether plaintiff assumed the risk of being kicked by defendant’s horse.  Plaintiff alleged the risk was heightened by defendant’s actions:

While it has been recognized that participants in the sporting activity of horseback riding assume commonly appreciated risks inherent in the activity, such as being kicked …, “[p]articipants will not be deemed to have assumed unreasonably increased risks” … .  “‘[A]n assessment of whether a participant assumed a risk depends on the openness and obviousness of the risks, the participant’s skill and experience, as well as his or her conduct under the circumstances and the nature of the defendant’s conduct'” … .

Here, plaintiffs have raised triable issues of fact by offering evidence that defendant’s attendant assisted plaintiff in mounting her assigned horse, and the attendant then positioned the head of her horse within six inches of the tail of the horse in the line in front of her.  The attendant then was called away and, in leaving, he ducked under the head of plaintiff’s horse, causing it to nudge the horse in front of it.  The horse in front then kicked back, striking plaintiff in the leg and injuring her. Defendant’s co-owner acknowledged that the positioning of horses is an important safety concern and that horses should be spaced approximately one horse length apart.  Thus, while being kicked by a horse is an obvious risk of horseback riding, and plaintiff, although an inexperienced rider, was aware of the risk, issues of fact exist as to whether defendant’s alleged actions in positioning the horses and then ducking under the head of plaintiff’s horse heightened the risk of injury to an inexperienced rider… . Valencia … v Diamond F Livestock, Inc…, 516434, 3rd Dept 10-24-13