                              SECOND DIVISION
                                BARNES, P. J.,
                            BOGGS and RICKMAN, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                  November 16, 2016




In the Court of Appeals of Georgia
 A16A1277. GADD v. WARWICK.

      BOGGS, Judge.

      Joseph Gadd appeals from the trial court’s grant of summary judgment to

Farrell Warwick in this case involving immunity provided by Georgia’s Injuries From

Equine or Llama Activities Act (“the Equine Act”), OCGA § 4-12-1 et seq. Gadd

asserts that genuine issues of material fact exist with regard to the application of two

exceptions to the immunity provided by the Act, that the trial court erred by imposing

a legal requirement of showing dangerous propensity, and that issues of fact exist

with regard to the horse’s dangerous propensity. For the reasons explained below, we

affirm the trial court’s grant of summary judgment to Warwick.

      Summary judgment is proper when there is no genuine issue of material fact,

and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We
review a grant or denial of summary judgment de novo and construe the evidence in

the light most favorable to the nonmovant. Home Builders Assn. v. Chatham County,

276 Ga. 243, 245 (1) (577 SE2d 564) (2003). So viewed, the undisputed evidence

shows that 19-year-old Gadd was injured while riding a horse at a summer camp

where he worked “as a camp counselor assigned to work in the equine activities

program.” One of his “basic job duties was to take children on trail rides at the camp.”

             On May 30, 2011, the decision was made by the supervisor of the
      [c]amp . . . equestrian program to take a staff group trail ride on the
      horses. The purpose of the ride was to get the horses accustomed to the
      normal routine which would be employed after the children arrived at
      the camp and the normal camp activities began . . .


             Before [Gadd] went out on the ride taking place at the time of
      [his] injury, Warren Manne, the supervisor of the camp’s equestrian
      program, assigned each rider to a particular horse. He assigned [Gadd]
      to ride the grey horse, which was called “Greg.”


      Gadd was injured when the horse jumped over a small stream less than 12

inches wide, rather than stepping over it. Gadd lost his balance somewhat following

the jump, “the horse reared up very high on his hind legs and lost his balance,” Gadd

then fell from the saddle, and the horse landed on top of him.



                                           2
      Greg, as well as all of the other horses used by the camp, were provided by

defendant Warwick pursuant to a contract between Warwick and the camp. Warwick

leased horses and equipment to the camp each summer beginning in 2004. The lease

agreement required Warwick to provide 32 horses “appropriate for children ages 7-

16” and also required him to replace “any horses deemed inappropriate (i. e. too wild,

unhealthy) by [the camp] within 48 hours.” (Emphasis supplied.)

      Gadd subsequently filed a complaint against Warwick alleging negligence and

wilful and wanton disregard for the safety of persons riding the horse he provided to

the camp. Following discovery, Warwick moved for summary judgment in his favor

based upon the immunity provided by the Equine Act. After the trial court’s grant of

Warwick’s motion, Gadd filed a timely appeal with this court.

      1. Gadd claims the trial court erred because genuine issues of material fact exist

with regard to the application of exceptions to the immunity provided by the Equine

Act. We disagree.

      In the preamble to the Equine Act, the General Assembly made the following

express legislative findings:

      The General Assembly recognizes that persons who participate in equine
      activities or llama activities may incur injuries as a result of the risks


                                          3
      involved in such activities. The General Assembly also finds that the
      state and its citizens derive numerous economic and personal benefits
      from such activities. The General Assembly finds, determines, and
      declares that this chapter is necessary for the immediate preservation of
      the public peace, health, and safety. It is, therefore, the intent of the
      General Assembly to encourage equine activities and llama activities by
      limiting the civil liability of those involved in such activities.


OCGA § 4-12-1. In accordance with these findings, we have held that the General

Assembly intended to create broad immunity “with narrowly defined exceptions.”

(Citations and footnote omitted.) Holcomb v. Long, 329 Ga. App. 515, 520 (1) (765

SE2d 687) (2014).

      In this case, Gadd’s injuries clearly resulted from the “inherent risks of equine

activities” for which the Equine Act provides immunity. See OCGA § 4-12-2 (7) (A)

(“The propensity of the animal to behave in ways that may result in injury, harm, or

death to persons on or around them.”); OCGA § 4-12-2 (7) (B) (“The unpredictability

of the animal’s reaction to such things as sounds, sudden movement, and unfamiliar

objects, persons, or other animals.”); OCGA § 4-12-3 (a) (providing immunity “for

an injury to or death of a participant resulting from the inherent risks of equine

activities”). We therefore must determine whether one of the exceptions of the Equine

Act applies.

                                           4
      (a) A person loses immunity under OCGA § 4-12-3 (b) (1) (B) only if he

“[p]rovided the animal and failed to make reasonable and prudent efforts to determine

the ability of the participant to engage safely in the equine activity and to safely

manage the particular animal based on the participant’s representations of his or her

ability.” Id. It is clear from the plain language of this exception that it contemplates

that the person sought to be held liable provided a particular horse to a particular

participant with a corresponding opportunity to make the inquiries enumerated in the

statute. Warwick provided the horse to the camp, not Gadd, and the supervisor of the

camp’s equestrian program, not Warwick, assigned Gadd to ride the particular horse

on the day he was injured. Accordingly, this exception does not apply to the particular

facts before us.

      (b) The record also fails to create a genuine issue of material fact regarding the

exception in OCGA § 4-12-3 (b) (4), which allows liability if a person “[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.”

      We have previously outlined the following definitions of willful and wanton

in the context of the Equine Act:



                                           5
      Wil[l]ful misconduct is based on an actual intention to do harm or inflict
      injury; wanton conduct is that which is so reckless or so charged with
      indifference to the consequences as to be the equivalent in spirit to
      actual intent. Wil[l]ful misconduct, or wil[l]ful failure or refusal to
      perform a duty required by statute, is more than negligence or even
      gross negligence; it involves conduct of a criminal or quasi-criminal
      nature, the intentional doing of something, either with the knowledge
      that it is likely to result in serious injury, or with the wanton and
      reckless disregard of its probable consequences.


(Citations and punctuation omitted.) Adams v. Hare, 244 Ga. App. 605, 609 (2) (b)

(536 SE2d 284) (2000).

      The record shows that the horse had been leased to the camp by Warwick the

two previous summers, and there is no evidence showing any previous issues or

incidents with him.1 The supervisor of the camp’s equestrian program testified that

it was “very likely” that the horse had been on the same trail where Gadd was injured

in previous summers because it was a trail commonly used throughout the summer


      1
         A camp counselor’s testimony that she heard a walkie talkie transmission
stating that the same horse bucked a child off the summer before was inadmissible
hearsay. See Savage v. KGE Assocs., 260 Ga. App. 770, 779 (2) (c) (580 SE2d 591)
(2003); Seed v. Smith & Woods Mgmt. Corp., 242 Ga. App. 395, 396 (1) (530 SE2d
29) (2000) (“an alleged statement by an unidentified witness is hearsay and
inadmissible”). Additionally, there is no evidence that this alleged incident was
reported to Warwick.

                                          6
at the camp. There is no evidence of previous incidents with horses at the camp on

this portion of the trail. The supervisor also testified that the horse would have been

ridden in the arena before it was taken out on the trail ride which resulted in Gadd’s

injury. He described Gadd as having “good experience and he was a strong rider.”

      The expert testimony relied upon by appellant to show a willful or wanton “act

or omission” on the part of Warwick is also insufficient to create a genuine issue with

regard to the application of this exception. The experts opined that the horse’s age,2

pedigree,3 training,4 and conditioning5 before arriving at camp did not fulfil the

contractual requirement of providing horses suitable for beginner riders and children.

While these acts and omissions evidence may create issues of fact with regard to

negligence, they do not rise to the level of “wanton and willful” conduct with regard


      2
          The horse was five years old.
      3
        The horse was the son of a barrel racing horse and great-great-grandson of an
“athletic” horse with a reputation of being “a pretty tough horse to ride.”
      4
        The horse acted “fresh” and was shaking his head at the start of the trail ride.
An expert watched a video of the horse made for the purpose of selling him at an
unknown point after the incident and opined that he “was obviously very green. Its
trot was not very good. He had his head stuck up in the air. The canter that the horse
had was certainly all sprawled out.”
      5
       Gadd’s experts also testified that the horse was inadequately conditioned or
prepared for trial ride use before being delivered to the camp.

                                           7
to a horse ridden by a 19-year-old camp counselor with undisputed riding experience,

particularly when there was no admissible evidence of previous incidents with the

horse the two previous summers. See Holcomb, supra, 329 Ga. App. at 521 (2)

(evidence showed negligence “at most,” not willful or wanton disregard for safety of

participant under Section 4-12-3 (b) (3)); Adams, supra, 244 Ga. App. at 608-609 (2)

(b) (evidence fell short of showing wilful and wanton disregard for safety where no

evidence that defendant knew horse had intentionally kicked a person before).

      2. Gadd’s remaining enumerations of error are rendered moot by our holding

in Division 1.

      Judgment affirmed. Barnes, P. J., and Rickman, J., concur.




                                         8
