Full Case Name:  Grace Kinara, Appellant v. Jamaica Bay Riding Academy, Inc., Respondent

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Country of Origin:  United States Court Name:  Supreme Court, Appellate Division, Second Department, New York Primary Citation:  783 N.Y.S.2d 636 (N.Y., 2004) Date of Decision:  Monday, October 18, 2004 Judge Name:  Nancy E. Smith, Thomas A. Adams, Stephen G. Crane, and Robert A. Lifson Jurisdiction Level:  New York Alternate Citation:  2004 N.Y. Slip Op. 07464 Judges:  Stephen G. Crane Thomas A. Adams Nancy E. Smith and Robert A. Lifson Attorneys:  Jamie C. Rosenberg, New York, N.Y., for Appellant; Babchik & Young, LLP, White Plains, N.Y., for Respondent

Plaintiff was kicked by a horse ridden by her friend while trail riding.  Plaintiff sued the Defendant who owned the horse and trail Plaintiff was riding on.  The trial court granted summary judgment in favor of the Defendant and the Court of Appeals affirmed the decision holding Plaintiff assumed the risk.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Kramer, J.), dated March 28, 2003, which granted the defendant's motion for summary judgment.

ORDERED that the order is affirmed, with costs.

The plaintiff sustained injuries while horseback riding on a trail maintained by the defendant. The plaintiff was kicked by a horse owned by the defendant and ridden by the plaintiff's friend. The plaintiff, a horseback rider for 15 years, heard the trail guide comment at the beginning of the ride that the horse was "wild" and observed the horse kicking before the incident. The defendant moved for summary judgment on the ground that the plaintiff assumed an inherent risk in the sports activity of horseback riding. The Supreme Court granted the defendant's motion, finding that the plaintiff failed to raise a triable issue of fact. We affirm.

The defendant submitted prima facie evidence that the plaintiff assumed the risk of injury, because a horse kicking or acting in an unintended manner is inherent, usual, and ordinary (see Lewis v. Erie County Agric. Socy., 256 A.D.2d 1114, 684 N.Y.S.2d 733; Rubenstein v. Woodstock Riding Club, 208 A.D.2d 1160, 1161, 617 N.Y.S.2d 603; see also Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202), the plaintiff was aware that the horse was "wild" (see Wendt v. Jacus, 288 A.D.2d 889, 890, 732 N.Y.S.2d 770), and the plaintiff had 15 years of horseback riding experience (see Morgan v. State of New York, supra at 485-486, 662 N.Y.S.2d 421, 685 N.E.2d 202; Turcotte v. Fell, 68 N.Y.2d 432, 440, 510 N.Y.S.2d 49, 502 N.E.2d 964; Duffy v. Suffolk County High School Hockey League, 289 A.D.2d 368, 369, 734 N.Y.S.2d 613; Rubenstein v. Woodstock Riding Club, supra ). The burden of proof then shifted to the plaintiff, who failed to raise a triable issue of fact (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642; Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572). In addition, the plaintiff did not raise a triable issue of fact as to whether the defendant intentionally or recklessly created an unreasonable risk (see Turcotte v. Fell, supra at 439, 510 N.Y.S.2d 49, 502 N.E.2d 964; cf. Morgan v. State of New York, supra at 488-489, 662 N.Y.S.2d 421, 685 N.E.2d 202; Millan v. Brown, 295 A.D.2d 409, 743 N.Y.S.2d 539; Irish v. Deep Hollow, 251 A.D.2d 293, 671 N.Y.S.2d 1024). Under these circumstances, the Supreme Court properly granted the defendant's motion.


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