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                  THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________

Rockingham
No. 2017-0153


         ANTHONY W. FRANCIOSA, III f/n/f VANEESA S. FRANCIOSA

                                         v.

                        HIDDEN POND FARM, INC. & a.

                            Argued: March 8, 2018
                      Opinion Issued: September 21, 2018

      Colliander & Brown, P.A., of Portsmouth (John D. Colliander on the brief,
and David S. Brown orally), for the plaintiff.


      Primmer Piper Eggleston & Cramer PC, of Manchester (Gary M. Burt on
the brief and orally), for the defendants.

      BASSETT, J. The plaintiff, Anthony W. Franciosa as father and next
friend of Vaneesa S. Franciosa, appeals an order of the Superior Court
(Anderson, J.) granting the motion for summary judgment filed by the
defendants, Jessica Grace Elliott and Hidden Pond Farm, Inc. a/k/a Hidden
Pond Farm, and denying the plaintiff’s cross-motion for partial summary
judgment. The trial court ruled that, pursuant to RSA 508:19 (2010), the
defendants were entitled to immunity from liability for the injuries Vaneesa
sustained in a horseback riding accident. We affirm.

      The material facts are not in dispute. On July 20, 2014, Vaneesa was
severely injured in a horseback riding accident. At the time of the accident,
she was thirteen years old, had been riding horses for eight years, and had
been taking weekly riding lessons from Elliott, an expert equestrian, for almost
two years. Approximately once each week, Vaneesa also went on a “free ride” ―
a ride that did not involve a lesson. On those occasions, Elliott was not always
present and no one was assigned to supervise Vaneesa.

        On July 19, the day before the accident, Vaneesa texted Elliott to arrange
a lesson for the following day. Elliott texted Vaneesa that, although she would
not be present at the farm on the 20th, Vaneesa had permission to take a free
ride on Wilma, a horse that Vaneesa had ridden without incident on at least
two occasions. On July 20, after riding Wilma for about 30 minutes, Vaneesa
fell to the ground as she tried to dismount. She was seriously injured when
Wilma then stepped on her.

       Before turning to the instant lawsuit, it is useful to review the statutory
scheme in New Hampshire governing the liability of any person engaged in an
equine activity. See RSA 508:19, II. Notably, more than 25 states have similar
statutes, see Annotation, Validity, Construction, and Application of Statutory
Exemptions from Liability for Persons Injured by Equine or Equestrian
Activities, 79 A.L.R.6th 487 (2012). Although courts in other jurisdictions have
construed these statutes, see id., this is our first opportunity to interpret RSA
508:19. Enacted in 1998, RSA 508:19 limits the liability of persons engaged in
equine activities “for an injury or the death of a participant resulting from the
inherent risks of equine activities.” RSA 508:19, II. The pertinent portions of
the statute are as follows:

      I. In this section

      ....

      (f) “Inherent risks of equine activities” means those dangers and
      conditions which are an integral part of equine activities,
      including, but not limited to:

             (1) The propensity of an equine to behave in ways that may
             result in injury, harm, or death to persons on or around
             them.

             (2) The unpredictability of an equine’s reaction to such
             things as sound, sudden movements, and unfamiliar objects,
             persons, or other animals.

             (3) Certain hazards such as surface and subsurface
             conditions not obvious to the equine participant or not
             known and reasonably not known by the equine professional
             or sponsor.


                                        2
      (4) Collisions with other equines or objects that can be
      reasonably foreseen as a result of normal equine activities.

      (5) The potential of a participant to act in a negligent manner
      that may contribute to injury of the participant or others,
      such as failing to maintain control over the animal or not
      acting within the participant’s ability; except where said
      negligence can be reasonably foreseen and the equine
      professional or sponsor has failed to take any corrective
      measures.

II. Except as provided in paragraph III of this section, an equine
activity sponsor, an equine professional, or any other person
engaged in an equine activity, shall not be liable for an injury or
the death of a participant resulting from the inherent risks of
equine activities and, except as provided in paragraph III of this
section, no participant’s representative shall make any claim
against, maintain an action against, or recover from any other
person for injury, loss, damage, or death of a participant resulting
from any of the inherent risks of equine activities. Each
participant in an equine activity expressly assumes the risk of and
legal responsibility for any injury, loss or damage to person or
property which results from participation in an equine activity.
Each participant shall have the sole responsibility for knowing the
range of his or her ability to manage, care for, and control a
particular equine or perform a particular equine activity, and it
shall be the duty of each participant to act within the limits of the
participant’s own ability, to maintain reasonable control of the
particular equine at all times while participating in an equine
activity, to heed all posted warnings, and to refrain from acting in a
manner which may cause or contribute to the injury of any person.

III. Nothing in paragraph II of this section shall prevent or limit
liability of an equine activity sponsor, an equine professional, or
any other person engaged in an equine activity, if the equine
activity sponsor, equine professional, or person:

      ....

      (b) Provided the equine and failed to make reasonable and
      prudent efforts to determine the ability of the participant to
      engage safely in the equine activity.

      ....




                                  3
             (d) Commits an act or omission that constitutes willful or
             wanton disregard for the safety of the participant, and that
             act or omission caused the injury.

       The plaintiff filed this action against the defendants seeking damages for
Vaneesa’s injuries. The defendants moved for summary judgment on the basis
that the equine immunity provisions set forth in RSA 508:19 bar the plaintiff’s
negligence claim. The plaintiff filed a cross-motion for partial summary
judgment, arguing that Vaneesa’s injuries were not caused by an “inherent
risk” of horseback riding, and, therefore, that the defendants are not immune
from liability. Alternatively, the plaintiff argued that even if the statute applies,
a jury trial was necessary to resolve issues of material fact regarding the
statutory exceptions in RSA 508:19, III. The trial court entered summary
judgment in favor of the defendants, and denied the plaintiff’s cross-motion.

       In its order, the trial court concluded that Vaneesa’s injuries resulted
from the “inherent risks of equine activities.” See RSA 508:19. The trial court
also concluded that, as a matter of law, Elliott’s conduct did not come within
any of the exceptions to immunity set forth in RSA 508:19, III. Specifically, the
trial court determined that the exception set forth in RSA 508:19, III(b) did not
apply because “no reasonable juror could find that Elliott failed to make
reasonable and prudent efforts to assess [Vaneesa’s] ability before [giving] her
permission to ride Wilma.” See RSA 508:19, III(b). The trial court also
concluded that the exception in RSA 508:19, III(d) did not apply because the
plaintiff could not establish proximate cause: in other words, the plaintiff failed
to establish that Elliott’s failure to supervise Vaneesa proximately caused the
accident which resulted in Vaneesa’s injuries. See RSA 508:19, III(d). The
plaintiff filed a motion for reconsideration, which the trial court denied. This
appeal followed.

       When reviewing the trial court’s rulings on cross-motions for summary
judgment, we consider the evidence in the light most favorable to each party in
its capacity as the nonmoving party and, if no genuine issue of material fact
exists, we determine whether the moving party is entitled to judgment as a
matter of law. JMJ Properties, LLC v. Town of Auburn, 168 N.H. 127, 129
(2015). If our review of that evidence discloses no genuine issue of material
fact and if the moving party is entitled to judgment as a matter of law, then we
will affirm the grant of summary judgment. Id. at 129-30. A fact is material if
it affects the outcome of the litigation under the applicable substantive law.
Bond v. Martineau, 164 N.H. 210, 213 (2012). We review the trial court’s
application of the law to the facts de novo. Conant v. O’Meara, 167 N.H. 644,
648 (2015).

      On appeal, the plaintiff argues that the trial court erred when it granted
the defendants’ motion for summary judgment and found that: (1) subject to
certain limitations, RSA 508:19 immunizes equine professionals from


                                          4
negligence suits; (2) Vaneesa’s injuries resulted from an inherent risk of equine
activity; and (3) Elliott’s conduct does not come within one of the exceptions to
immunity set forth in paragraph III of RSA 508:19.

       Resolution of the issues in this case requires that we engage in statutory
interpretation. We review the trial court’s statutory interpretation de novo.
Olson v. Town of Grafton, 168 N.H. 563, 566 (2016). In matters of statutory
interpretation, we are the final arbiter of the intent of the legislature as
expressed in the words of a statute considered as a whole. Petition of Carrier,
165 N.H. 719, 721 (2013). We first look to the language of the statute itself,
and, if possible, construe that language according to its plain and ordinary
meaning. Id. We interpret legislative intent from the statute as written and
will not consider what the legislature might have said or add language that the
legislature did not see fit to include. Id. We construe all parts of a statute
together to effectuate its overall purpose and avoid an absurd or unjust result.
Id. Moreover, we do not consider words and phrases in isolation, but rather
within the context of the statute as a whole. Id. This enables us to better
discern the legislature’s intent and to interpret statutory language in light of
the policy or purpose sought to be advanced by the statutory scheme. Id.

      The plaintiff first argues that the trial court erred by finding that RSA
508:19 applies to her negligence claim. Focusing on the statement of intent in
the session law, the plaintiff contends that RSA 508:19 does not immunize the
defendants. The statement of intent provides as follows:

      I. The general court finds that equine activities are important to
      the economy and culture of the state. The general court also
      recognizes that equines are prone to behave in ways that may
      result in injury, harm, or death to persons involved in equine
      activities, and so finds that the responsibilities of sponsors and
      professionals should be distinguished between those of the
      participants for purposes of determining liability for injuries
      suffered from those activities.

      II. It is the intent of the general court that no person shall be liable
      for damages sustained by another solely as a result of risks
      inherent in equine activity, insofar as those risks are inherent to
      the equine activity and obvious to the person injured.

      III. It is the intent of the general court that a person responsible for
      equines, or responsible for the safety of those engaged in equine
      activity, whose negligence proximately causes injury to a person
      engaged in those activities, is liable for that injury in accordance
      with other applicable law.

Laws 1998, 24:1.


                                         5
      The plaintiff asserts that paragraph III is a “clear expression of the
Legislature that claims of negligent conduct by the equine professional
survive,” and that, because Elliott negligently “created dangers above the usual
inherent risks” of equine activities when she allowed Vaneesa to ride Wilma
unsupervised, the immunity statute does not apply. We disagree.

       At the outset, we observe that the legislature chose not to include the
statement of intent in the text of RSA 508:19, and we will not construe the
statement of intent in a fashion that would negate explicit statutory language.
State v. Kelley, 153 N.H. 481, 484-85 (2006) (recognizing that although the
preamble reflected the legislature’s articulation of the policy behind the statute,
that policy did not override other statutory provisions). The statement in
paragraph III, that an equine professional “whose negligence proximately
causes injury to a person engaged in [equine] activities, is liable,” Laws 1998,
24:1, III, must not be read in isolation. See Petition of Carrier, 165 N.H. at 721
(when interpreting statutes, we first look to the language of the statute itself
and construe all parts of a statute together to “discern the legislature’s intent
and to interpret statutory language in light of the policy or purpose sought to
be advanced by the statutory scheme”). Rather, it must be read in the context
of other language set forth in the statement of intent and in the statute itself.
We conclude that, when taken as a whole, the statement of intent articulates
the statute’s clear purpose: to shield persons involved in an equine activity
from liability for negligence claims related to a participant’s injuries resulting
from the inherent risks of equine activity, see RSA 508:19, II, while at the same
time ensuring the right of an injured participant to recover under certain
narrowly defined circumstances, see RSA 508:19, III. If we were to interpret
the statement of intent as broadly as the plaintiff suggests — so that virtually
all negligence claims against equine professionals survive — we would
eviscerate the statute and undermine its very purpose. See Wolfgram v. N.H.
Dep’t of Safety, 169 N.H. 32, 36 (2016) (we will not construe a statute in a way
that would render it a virtual nullity).

       The plaintiff also argues that construing RSA 508:19 to bar this suit
would violate the principle that statutes that bar common law rights to recover
for injuries are to be strictly construed. See Martin v. Pat’s Peak, 158 N.H.
735, 739 (2009) (immunity provisions barring the common law right to recover
are to be strictly construed); see also Soraghan v. Mt. Cranmore Ski Resort,
152 N.H. 399, 401 (2005) (if a common law right is abolished, it must be clearly
expressed by the legislature). We disagree. Here, the plain language of RSA
508:19 demonstrates that the legislature intended to materially limit an injured
person’s right to bring negligence claims, while at the same time it intended
that the claims delineated in paragraph III of the statute survive. See RSA
508:19, III. Thus, strictly construing this statute, we conclude that the
legislature clearly expressed an intention to generally immunize those engaged
in equine activities from negligence suits, with a few narrowly defined
exceptions.


                                        6
       We next address the plaintiff’s argument that the trial court erred when
it concluded that Vaneesa’s injuries resulted from an inherent risk of equine
activity. See RSA 508:19. The statute defines the “[i]nherent risks of equine
activities” as “those dangers and conditions which are an integral part of
equine activities,” and provides five examples. RSA 508:19, I(f).

       The plaintiff argues that because Elliott was not present at the farm on
the day of the accident and could not supervise Vaneesa during her ride, the
trial court erred when it determined that Vaneesa’s injury was caused by an
inherent risk of equine activities. In essence, the plaintiff argues that because
Elliott’s purported negligence caused the accident, Vaneesa’s injury could not
have resulted from the inherent risks of horseback riding. The plaintiff focuses
on the example set forth in RSA 508:19, I(f)(5), and argues that, when the
equine professional is not physically present at the time of the injury, and,
therefore, is not available to take contemporaneous “corrective measures,” the
risk of injury does not qualify as “an inherent risk of equine activity” triggering
immunity.

       RSA 508:19, I(f)(5) identifies the participant’s negligence as an inherent
risk of equine activity that triggers immunity:

      The potential of a participant to act in a negligent manner that
      may contribute to injury of the participant or others, such as
      failing to maintain control over the animal or not acting within the
      participant’s ability; except where said negligence can be
      reasonably foreseen and the equine professional or sponsor has
      failed to take any corrective measures.

RSA 508:19, I(f)(5). Here, we do not have to decide whether Elliott’s physical
absence and inability to supervise Vaneesa at the time of Vaneesa’s injury
places the accident outside of the risks inherent in equine activities, because
under RSA 508:19, I(f)(5), a failure to take “corrective measures” is relevant
only when the participant is negligent and that negligence can be reasonably
foreseen — which is not the case here. Even assuming that Vaneesa acted in a
negligent manner that contributed to her injury, there is no evidence that her
negligence could have been reasonably foreseen by Elliott. On the day of the
accident, Vaneesa rode Wilma, a horse that she had previously ridden, and,
although there is some evidence that Vaneesa had difficulty managing Wilma
during her “free ride,” the trial court observed that “[t]here is no suggestion in
the record that [Vaneesa] had previously had difficulty controlling horses which
had begun acting jumpy, as horses can sometimes do.” We agree with the trial
court, and conclude that the narrow exception in RSA 508:19, I(f)(5) is
inapplicable.

     The plaintiff further argues that, because Elliott failed to enforce “her
own safety rule” — not to allow minors to ride without adult supervision — the


                                         7
trial court erred when it concluded that Vaneesa’s injury was caused by an
inherent risk of equine activities. We are not persuaded. Vaneesa was injured
when she fell off of, and was then stepped on by, Wilma. Specifically, the
circumstances surrounding Vaneesa’s accident come within the scope of
inherent risks as defined in RSA 508:19, I(f)(1) and (2). RSA 508:19, I(f)(1)
(“[t]he propensity of an equine to behave in ways that may result in injury,
harm, or death to persons on or around them”); RSA 508:19, I(f)(2) (“[t]he
unpredictability of an equine’s reaction to such things as sound, sudden
movements, and unfamiliar objects, persons, or other animals”). The trial
court concluded, and we agree, that this accident and Vaneesa’s injuries
resulted from “precisely the kinds of risks that are inherent in equine
activities.” See RSA 508:19 I(f); Christian v. Elden, 107 N.H. 229, 235 (1966)
(recognizing, in a case decided before RSA 508:19 was enacted, that “everyone
who mounts a horse should realize that he [or she] may fall or get thrown off”);
see also Kangas v. Perry, 620 N.W.2d 429, 433 (Wis. Ct. App. 2000) (“[t]he
horses’ propensity to move without warning is an inherent risk of equine
activity”). Moreover, there is nothing in RSA 508:19 to suggest that an equine
professional’s failure to enforce a voluntarily adopted safety rule would narrow
the scope of statutory immunity.

      The plaintiff next argues that, even if Vaneesa’s injury resulted from an
inherent risk of equine activities, the plaintiff’s claim “still survives as an
exception to immunity under Part III (b) or (d) of the statute.” We disagree.

       RSA 508:19, III(b) provides that an equine professional may be held liable
for an injury or death resulting from an inherent risk of equine activities if the
professional “[p]rovided the equine and failed to make reasonable and prudent
efforts to determine the ability of the participant to engage safely in the equine
activity.” RSA 508:19, III(b). The plaintiff argues that this exception applies
because “[a] jury could find that the ‘engage safely’ test is not met as it was not
reasonable to assess [Vaneesa] and leave her alone simply because she was
only 13, and a jury could find that it was not reasonable to use the new horse,
Wilma, that [Vaneesa] had ridden only once or twice.” The defendants counter
that there is ample evidence in the record to establish that Elliott knew that
Vaneesa was an experienced rider, and that she was able to proficiently ride
horses that were unfamiliar to her. We agree with the defendants.

       Elliott provided weekly lessons to Vaneesa for almost two years, and was
aware of Vaneesa’s substantial riding experience. During that period, Vaneesa
had ridden several different horses, including Wilma, whom she had ridden at
least twice in the five weeks before the accident. Also, Vaneesa testified that
she accompanied Elliott to at least five horse shows, and on those occasions
Vaneesa would select and ride a horse provided by the show with which she
had no previous experience. Vaneesa would “walk, trot, and canter” with the
horse, and she reported no difficulty controlling the horses that she selected.



                                        8
      Notably, the plaintiff does not contend that the accident was a result of
Vaneesa’s inability to “engage safely” with Wilma; rather, he argues that the
accident occurred because Elliott was not supervising the ride. However,
under exception III(b), we need only consider whether Elliott made “reasonable
and prudent efforts to determine the ability of [Vaneesa] to engage safely in the
equine activity.” RSA 508:19, III(b). Elliott satisfied this requirement. We
agree with the trial court that “no reasonable juror could find that Elliott failed
to make reasonable and prudent efforts to assess [Vaneesa’s] ability before
providing permission to ride Wilma.” Accordingly, we conclude that Elliott’s
conduct does not fall within exception III(b).

       The plaintiff next argues that Elliott’s conduct falls within exception III
(d): a person engaged in an equine activity does not qualify for immunity if he
or she “[c]ommits an act or omission that constitutes willful or wanton
disregard for the safety of the participant, and that act or omission caused the
injury.” RSA 508:19, III(d). The plaintiff contends that a reasonable jury could
find that Elliott’s absence from the farm — and her inability to personally
supervise Vaneesa on the day of the accident — combined with Elliott’s failure
to enforce her own safety rule, constituted a “willful or wanton disregard” for
Vaneesa’s safety. The defendants counter that “[t]here is simply no evidence of
Elliott acting with any intent to harm or [be indifferent] to [Vaneesa’s] safety in
the record,” and, therefore, exception III(d) does not apply. We agree with the
defendants.

       RSA 508:19 does not define “willful” or “wanton.” When a term is not
defined in the statute, we look to its common usage, using the dictionary for
guidance. K.L.N. Construction Co. v. Town of Pelham, 167 N.H. 180, 185
(2014). Black’s Law Dictionary states that “a voluntary act becomes willful, in
law, only when it involves conscious wrong or evil purpose on the part of the
actor, or at least inexcusable carelessness, whether the act is right or wrong.”
Black’s Law Dictionary 1834 (10th ed. 2014) (defining “willful”). Black’s Law
Dictionary defines “wanton” as “[u]nreasonably or maliciously risking harm
while being utterly indifferent to the consequences.” Id. at 1815.

       Our case law construing the words “willful” and “wanton” suggests that
willful or wanton disregard for the participant’s safety is something more than
ordinary negligence. See Migdal v. Stamp, 132 N.H. 171, 175-76 (1989)
(stating that while the fireman’s rule precludes firemen from filing complaints
of ordinary negligence against homeowners, the rule “does not extend to willful,
wanton or reckless conduct”). However, our case law is sparse and does not
provide much guidance beyond the dictionary definitions set forth above.

       Here, there is no evidence to support the plaintiff’s argument that
Elliott’s failure to supervise Vaneesa or to enforce her own “safety rule”
amounts to willful or wanton disregard for the plaintiff’s safety. There is no



                                         9
evidence that Elliott acted with willful disregard of Vaneesa’s safety, or, in other
words, that she had a conscious purpose to disregard Vaneesa’s safety.

       Nor is there evidence in the record that Elliott acted with wanton
disregard for Vaneesa’s safety: that she acted with malicious or unreasonable
disregard for Vaneesa’s safety while being utterly indifferent to the
consequences. Having instructed Vaneesa for two years, Elliott knew of
Vaneesa’s extensive riding experience. There is no history of dangerous
incidents regardless of whether Vaneesa rode with or without supervision.
There is no evidence that Elliott was aware that Wilma could present a danger
to Vaneesa or any other rider. On those occasions when Wilma could be
difficult to control, Elliott had instructed Vaneesa regarding how she should
react. We agree with the trial court that “[t]here is nothing in the record to
suggest that Elliott failed to properly train [Vaneesa].” Accordingly, we
conclude that there is no evidence in the record that Elliott acted with “willful
or wanton disregard” for Vaneesa’s safety. Therefore, Elliott’s conduct does not
come within the exception to immunity stated in RSA 508:19, III(d). Having so
concluded, we need not address the plaintiff’s argument that the trial court
erred when it ruled that no reasonable juror could conclude that Elliott’s
conduct proximately caused Vaneesa’s injuries. See RSA 508:19, III(d) (states
that an equine professional could still be held liable if he or she “[c]ommits an
act or omission that constitutes willful or wanton disregard for the safety of the
participant, and that act or omission caused the injury” (emphasis added)).

      Finally, the plaintiff argues that the trial court “erroneously resolved
factual issues unfavorably to the Plaintiff and therefore erred under summary
judgment law.” We disagree. The material facts are not in dispute. To the
extent that the plaintiff contends that factual issues remain, the resolution of
those factual disputes will not “affect[] the outcome of the litigation under the
applicable substantive law.” Bond, 164 N.H. at 213.

       In sum, we conclude that the trial court did not err in ruling that the
defendants were entitled to immunity under RSA 508:19. Any issue that the
plaintiff raised in his notice of appeal, but did not brief, is deemed waived.
Halifax-American Energy Co. v. Provider Power, LLC, 170 N.H. 569, 575 (2018).

                                                   Affirmed.

      LYNN, C.J., and HANTZ MARCONI, J., concurred.




                                        10
