                                                                                              10/05/2017


                                          DA 17-0214
                                                                                          Case Number: DA 17-0214

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2017 MT 245



NEILL FISHMAN,

               Plaintiff and Appellant,

         v.

GRBR, INC., and DOES 1-5,

               Defendant and Appellee.


APPEAL FROM:           District Court of the Eleventh Judicial District,
                       In and For the County of Flathead, Cause No. DV 16-0481D
                       Honorable Dan Wilson, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       John M. Wagner, Wagner Law Firm, PC, Whitefish, Montana

                For Appellee:

                       Antonia P. Marra, Marra Evenson & Bell, PC, Great Falls, Montana



                                                   Submitted on Briefs: September 6, 2017

                                                              Decided: October 5, 2017


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Neill Fishman (Fishman) appeals the entry of summary judgment by the Eleventh

Judicial District Court, Flathead County in favor of GRBR, Inc. (GRBR). We affirm,

addressing the following issue:

       Did the District Court err by granting summary judgment to the defendant pursuant
to the “Equine Activities Act”?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶2     GRBR is a Montana corporation owned by Don Gaynor (Don) and operated by Don

and his wife, Nancy Gaynor (Nancy). GRBR offered guest cabins and trail horse rides near

Whitefish, Montana, providing about 1,000 trail rides per year. Fishman was a participant

on a GRBR trail ride in June 2014.

¶3     Sometime before the day of the ride, Fishman called GRBR and booked a trail ride

for himself and some relatives. During the call, Don asked Fishman for his height and

weight to determine which horse would work best for him. Fishman stated he was over 6

feet tall and weighed 210 pounds. Based on Fishman’s size, Don chose the horse, “Big,”

a large horse capable of carrying heavier riders, for Fishman to ride. Big’s saddle and

associated tack are specifically designed for him.

¶4     GRBR presented Fishman with a Supervised Equine Rental Agreement and Release

Form (Agreement) prior to the trail ride. The Agreement stated that “saddle girths

(fasteners around the horse’s belly) may loosen during equine activity, which may cause




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slippage of the saddle and the potential fall from the horse.”1 Fishman read and signed the

Agreement.

¶5     GRBR’s standard pre-ride procedure includes saddling the horses and checking

saddle cinches a minimum of three (3) times before a riding participant mounts the horse.

Don saddled Big before Fishman arrived and, consistent with procedure, Big’s saddle cinch

was checked several times before the horse was mounted. A wrangler rode Big before

Fishman arrived and the saddle cinch was checked again.

¶6     After the participant mounts the horse, GRBR wranglers give oral instructions and

observe the participant riding the horse around the corral in a safety check to address any

equipment adjustments, observe how the participant manages the horse, provide

instruction, and answer questions or concerns. Participants are instructed to ask for help if

they believe something is wrong. Fishman had a low level of riding experience, and Don

explained to him how to hold the reins and direct Big’s movements. Fishman then rode

Big around the corral. Nancy noticed Fishman was leaning to one side and tipping the

saddle. Nancy instructed Fishman to shift his weight and to keep the saddle centered over

the horse. Fishman complied before departing the corral for the trail.

¶7     Upon completion of the safety check, the ride participants were taken out on the

trail. Nancy, on horseback, led the riders out of the corral and down the trail at a walking

pace. During the ride, Fishman attempted to re-center the saddle by shifting back and forth



1
  The term “girth” may be used interchangeably with “cinch,” which is defined as a girth for a
saddle or pack. Oxford Am. Dictionary 136 (Oxford Univ. Press, Inc. 1999).
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in the stirrups. Nancy became aware Fishman was having a problem when Fishman yelled

at her. Nancy observed Fishman sliding to one side and then attempting to jump off the

horse, landing on the ground. The saddle remained affixed on the horse, but resting on its

side. Big did not buck or react during the incident.

¶8     Fishman filed this damage action against GRBR, asserting negligence generally and

specifically mentioning only inaction by Nancy as the apparent assertion of breach of duty,

and not referencing the actions of GRBR’s other personnel: “Nancy Gaynor never

physically touched or inspected Neill’s saddle after it was place[d] upon his horse Big, nor

after she noticed it was off center and told Neill to recenter, and at no time before or after

Neill mounted Big.” GRBR moved for summary judgment, arguing Fishman’s accident

was caused by a risk inherent in equine activities for which liability is precluded under

§ 27-1-727, MCA. Fishman also moved for summary judgment, arguing Nancy failed in

the duty to inspect the saddle, which satisfied an exception to the liability protection of the

equine statute.

¶9     Concluding there were no genuine issues of material fact, the District Court granted

summary judgment to GRBR, reasoning that “among the risks inherent to equine activities

is the risk that saddle girths may loosen during a ride and cause slippage of the saddle,

which may result in a fall. It is out of this very type of inherent risk—of which [Fishman]

was specifically warned in the Agreement and of which he acknowledged his

understanding—that Fishman’s negligence claim arises. . . .” The Court further concluded

that Fishman had failed to establish that a statutory exception applied, reasoning that

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“Fishman has not alleged or shown that any piece of tack or equipment broke, was

otherwise defective or did not work or perform as expected.” Fishman appeals.

                                STANDARD OF REVIEW

¶10    We review de novo a district court’s grant or denial of summary judgment, applying

the same criteria of M. R. Civ. P. 56 as a district court. Pilgeram v. GreenPoint Mortg.

Funding, Inc., 2013 MT 354, ¶ 9, 373 Mont. 1, 313 P.3d 839. Summary judgment is

appropriate when the moving party demonstrates both the absence of any genuine issues

of material fact and entitlement to judgment as a matter of law. M. R. Civ. P. 56(c)(3);

Bird v. Cascade Cnty., 2016 MT 345, ¶ 9, 386 Mont. 69, 386 P.3d 602. We review a

district court’s conclusions of law to determine whether they are correct. Pilgeram, ¶ 9.

                                       DISCUSSION

¶11 Did the District Court err by granting summary judgment to the defendant pursuant
to the “Equine Activities Act”?

¶12    Sections 27-1-725 through -727, MCA, commonly referred to as the “Equine Act”

or “Equine Activities Act,” states that “the policy of the state of Montana” is “that a person

is not liable for damages sustained by another solely as the result of risks inherent in equine

activities if those risks are or should be reasonably obvious, expected, or necessary to

persons engaged in equine activities.” Section 27-1-725, MCA. We have stated that the

“practical effect” of the Act is to “pronounce that equine activity sponsors do not have a

duty to protect participants from unavoidable risks, or the inherent risks of equine activities

of which the participant is or should be aware,” explaining that:


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       If the injury is due to an inherent risk of equine activities and the participant
       expected that risk, then the equine activity sponsor cannot have been
       negligent—the injury was due to an unavoidable risk of which the participant
       was aware, so the sponsor could not have breached any duties to warn of or
       eliminate the risk. Thus, so long as the participant expects a risk inherent in
       equine activities, pursuant to the statute, the equine activity sponsor may not
       be held liable for injury suffered as a result of that risk.

McDermott v. Carie, 2005 MT 293, ¶ 18, 329 Mont. 295, 124 P.3d 168.

¶13    The Act provides, in pertinent part:

       Equine activity liability limitations. (1) Except as provided in subsections
       (2) and (3), an equine activity sponsor or an equine professional is not liable
       for an injury to or the death of a participant engaged in an equine activity
       resulting from risks inherent in equine activities.

       (2) An equine participant shall act in a safe and responsible manner at all
       times to avoid injury to the participant and others and to be aware of risks
       inherent in equine activities.

Section 27-1-727(1), (2), MCA. The Act further defines the term, “risks inherent in equine

activities,” as “dangers or conditions that are an integral part of equine activities,” and

provides a non-exhaustive list of such dangers. Section 27-1-726(7), MCA.

¶14    Fishman does not contest the District Court’s determination that the circumstances

of his accident come within the statutory definition of “risks inherent in equine activities,”

and thus cannot form the basis of a liability claim under § 27-1-727(1), MCA. However,

Fishman argues that the District Court erred in concluding that his claim does not fall

within an exception to the general rule, as set forth in § 27-1-727(3), MCA, which states:

       (3) Subsection (1) does not apply:

       (a) if the equine activity sponsor or the equine professional:


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       (i) provided the equipment or tack and the equipment or tack caused the
           injury because the equine activity sponsor or equine professional failed
           to reasonably and prudently inspect or maintain the equipment;

Fishman argues that Nancy’s failure to inspect the equipment and tack he was using caused

the accident, and thus his claim comes within the exception stated in § 27-1-727(3)(a)(i),

MCA, and permits his claim.

¶15    We first note that Fishman did not allege that the equipment or tack failed, was

improperly maintained, or was otherwise defective. Further, although Fishman focuses

solely on Nancy’s personal actions or inaction, it is an undisputed material fact that the

subject equipment and tack was repeatedly checked and inspected by the equine sponsor

prior to the trail ride to insure they were working properly. Fishman makes no showing

whatsoever that these inspections were not performed “reasonably and prudently,” as

required by § 27-1-727(3)(a)(i), MCA, for his claim. The fact that the cinch nonetheless

loosened during the ride underscores that this occurrence is an inherent danger or condition

of equine activity, about which Fishman was expressly advised.

¶16    The District Court also properly determined that the material facts of the case are

not in dispute. Fishman argues that there were differing accounts of the communications

that occurred between Nancy and Fishman in the corral before the trail ride, but these

communications are not material to whether the accident was caused by an inherent risk

and whether the equipment was reasonably and prudently inspected. Fishman argues that

the District Court went too far by excusing liability on the basis of the Agreement he had

signed, which he argues cannot, in itself, release an equine sponsor from liability. While

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Fishman is correct that liability cannot be excused on the basis of an Agreement, see

McDermott, ¶ 19, the District Court did not, in our view, apply the protections of the Equine

Act solely on the basis of the Agreement. Rather, the District Court considered the

Agreement in the context of whether Fishman was aware of the inherent risks of horseback

riding. Its ultimate decision was premised upon the circumstances of this accident coming

within the inherent risks of equine activity as defined in the Equine Act, and not within the

statute’s exception to that liability limitation.

¶17    Affirmed.


                                                    /S/ JIM RICE


We concur:

/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR



Justice Michael E Wheat, dissenting.

¶18    I respectfully dissent from the majority. I would reverse and remand because the

District Court resolved issues of disputed fact. In my opinion, the majority overlooks the

dispute of material fact between Fishman and GRBR as to whether Fishman’s slipping

during the ride was an inherent danger or condition of equine activity, or if it was a product

of improper equipment inspection.




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¶19      GRBR knew the cinch was loose during the safety check when Fishman began to

slip. GRBR attributed the slip to a shift in weight by Fishman and directed him accordingly

to keep his weight centered. Fishman and other riders were then taken out on the trail.

While on the trail, Fishman’s saddle again slipped; this time Fishman had to jump off the

horse. The majority states that “the fact that the cinch nonetheless loosened during the ride

underscores that this occurrence is an inherent danger or condition of equine activity.”

Opinion, ¶ 15. However, this characterization of the saddle slippage erroneously ignores

that the cinch was not tightened properly by GRBR prior to hitting the trail.

¶20      Further, GRBR was on notice that Fishman’s cinch was loose through observations

during the safety inspection and through Fishman’s own communications with the trail

guide.    However, the majority side-stepped the safety inspection dispute by stating

“Fishman makes no showing whatsoever that these inspections were not performed

‘reasonably and prudently,’ as required by § 27-1-727(3)(a)(i), MCA, for his claim.”

Opinion, ¶ 15. The majority also concludes the communications between Fishman and

GRBR as “not material to whether the accident was caused by an inherent risk and whether

the equipment was reasonable and prudently inspected.” Opinion, ¶ 16. In my opinion,

such conclusions overlook the dispute of fact as to whether the cinch was not reasonably

and prudently inspected by GRBR after they observed that the cinch was loose or that the

cinch became loose during the ride as a condition of equine activity. This dispute of fact

should be left for a jury to resolve.




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¶21    This Court has long adhered to the proposition that “summary judgment is an

extreme remedy that should never be a substitute for a trial on the merits if a controversy

exists over a material fact.” Corporate Air v. Edwards Jet Ctr. Mont. Inc., 2008 MT 283,

¶ 24, 345 Mont. 336, 190 P.3d 1111. The majority interprets the Equine Activities Act too

narrowly and thereby deprives an injured person of the right to have the facts of their claim

decided by a jury rather than by a judge’s expansive interpretation of an immunity statute.

¶22    For these reasons, I dissent.


                                                  /S/ MICHAEL E WHEAT




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