Berlangieri v. Running Elk Corporation
New Mexico Court of Appeals
48 P.3d 70
April 9, 2002
On May 20, 2002, the New Mexico Supreme Court decided to
review this case.
Summary of Opinion
Plaintiff Berlangieri was injured during a trail ride
operated by the defendant. Defendant moved for summary judgment on the grounds
(1) that plaintiff had signed a release from liability that precluded the
lawsuit and (2) that the equine activity statute precludes recovery. The trial
court granted summary judgment in favor of the defendant because of the release
from liability. It denied summary judgment on the equine activity statute
ground.
In this opinion, the Court of Appeals holds that releases
from liability are invalid when applied to prevent lawsuits for serious personal
injuries resulting from recreational activities. The Court of Appeals also held
that the theory of recovery—that injury resulted from an improper saddling of
the horse by the defendant—was not covered by the equine activity statute, since
negligent saddling is not an equine activity.
The New Mexico Supreme Court has agreed to review this
important case, so the final word has not been written.
Text of Opinion
This case requires us to decide whether New Mexico courts
will enforce an exculpatory agreement purporting to relieve the commercial
operator of a recreational premises from liability for failure to exercise
ordinary care to protect its patrons from risks of serious physical injury. We
conclude that such exculpatory agreements are unenforceable because commercial
operators of recreational premises are subject to a non-disclaimable duty to
exercise ordinary care to protect patrons from foreseeable risks of physical
injury or death.
BACKGROUND
Defendants operate The Lodge at Chama (hereafter The
Lodge). The Lodge offers guests horseback riding expeditions as well as other
recreational activities. On May 29, 1996, Plaintiff, Nicholas Berlangieri, and
other employees of Honeywell Corporation were guests at The Lodge. Members of
the group of employees expressed an interest in a horseback riding expedition. A
riding expedition was arranged for the afternoon of May 29, 1996.
Prior to the riding expedition, Jeri Simms, The Lodge's
manager, spoke with each participant, including Plaintiff, to determine the
participant's experience and ability in horseback riding. Simms concluded that
Plaintiff was a novice rider. Simms explained to each guest that due to the
unpredictable nature of horses, horseback riding involves certain unavoidable
risks of injury. Simms gave each guest a copy of The Lodge's "Agreement for
Release and Assumption of Risk" (hereafter the Release) and asked the guest to
read and sign it. The Release stated:
I acknowledge that I have been
informed of, and that I am otherwise aware of, the risks involved in fishing,
horseback riding, hiking and shooting the sporting clays on the lands of the THE
LODGE AT CHAMA. I hereby declare that I posses sufficient skills and experience
in the above mentioned activities without causing injury to myself or other
guests of THE LODGE AT CHAMA.
In consideration of being
permitted to participate in the above mentioned activities and otherwise use the
lands of THE LODGE AT CHAMA, I agree:
To use due care while engaging
in the above mentioned activities on the lands of THE LODGE AT CHAMA, including,
but not limited to, each and every risk resulting from negligent acts or
omissions of any other person or persons, including employees and agents of THE
LODGE AT CHAMA. I further agree to exculpate and relieve THE LODGE AT CHAMA and
its employees, representatives and agents from all liability for any loss,
damage, or injury, whether to person or property which I may suffer while
engaging in activities and/or using the lands of THE LODGE AT CHAMA all whether
or not resulting from the negligent act or omission of another person or
persons.
As each guest signed the Release, Simms asked the guest if
he or she understood the terms of the agreement. Each guest, including
Plaintiff, stated that he understood. Although Plaintiff has no recollection of
signing a Release, he does not dispute that his signature appears on an executed
Release.
In view of the inexperience of the Honeywell group, The
Lodge selected gentle, easygoing horses for the trail ride. Plaintiff's horse
was saddled prior to the trail ride by an experienced employee of The Lodge.
This employee testified that the saddle, tack, and equipment he put on
Plaintiff's horse were in good, serviceable condition and were properly
positioned on the horse.
During the trail ride, another guest observed Plaintiff's
horse "constantly wanting to move to the head of the group and to move faster
than the other horses in the group." The trail ride otherwise proceeded without
incident. At the end of the ride, as the group approached the stable,
Plaintiff's horse began to gallop. One eyewitness recalled that Plaintiff
appeared to rotate to the right around the horse's body, "as if he was the hand
of a clock moving around the center point." According to this witness, Plaintiff
fell to the right side of the horse, his head and shoulder hitting the ground
first. In the words of another witness: "It appeared to be a slow fall to the
right, with [Plaintiff's] body continually facing forward. He remained upright
in the sense that his back remained approximately straight." These two witnesses
stated that Plaintiff's fall was consistent with the saddle sliding, but neither
witness recalled actually observing the saddle shift. One member of the party
recalled that approximately two minutes after the fall, Plaintiff's horse did
not have a saddle. However, the employee who saddled Plaintiff's horse, and who
led the trail ride, recalled that after the fall, "[t]he saddle and tack were
properly positioned and in good serviceable condition" and that he removed the
saddle from Plaintiff's horse after assisting Plaintiff. Gay Davenport, an
experienced horse trainer and riding instructor, provided an expert opinion as
to the cause of the fall. Based on the eyewitness reports of the fall, Davenport
concluded that "the saddle was not properly positioned and/or the cinch was not
properly tightened; or this equipment failed, causing the saddle to slide
sideways off the top of the horse."
Plaintiff filed a "Complaint for Personal Injury Damages"
alleging that Plaintiff had suffered severe injuries, including brain injury.
Plaintiff alleged that his injuries were the result of Defendants' "negligence,
carelessness, and recklessness." Plaintiff alleged his injuries were caused by
the following acts and omissions on the part of Defendants and their employees:
A. Failure to properly install
the saddle and related equipment on the horse which [Plaintiff] was riding;
and/or
B. Providing saddle,
equipment, or tack which defendants and their employees knew or should have
known was faulty or was improperly installed.
Plaintiff alleged that he had "incurred medical bills of
several hundred thousand dollars" as well as lost income "in excess of
$450,000."
Defendants moved for summary judgment arguing that they
were not liable for Plaintiff's injuries because they were exculpated by the
Release and because Plaintiff's injuries were the result of "equine activities,"
which under the Equine Liability Act, NMSA 1978, §§ 42-13-1 to -5 (1993, as
amended through 1995) could not be the basis of liability. Plaintiff argued in
response that (1) the Equine Liability Act does not bar liability for personal
injuries caused by faulty tack, and (2) enforcement of the Release would violate
public policy as expressed in the Equine Liability Act.
The district court granted summary judgment in favor of
Defendants. As to the Equine Liability Act, the district court found that
"Plaintiffs have presented sufficient evidence from which a reasonable person
could infer that the proximate cause of Berlangieri's fall and consequent injury
was the Defendants' negligence in improperly saddling his horse, causing it to
come loose and slip." The district court reasoned that:
The Plaintiffs' allegations
are that the saddle and cinch on Berlangieri's horse were improperly installed,
conduct which cannot reasonably be comprehended by the phrase "equine behavior."
At best, Defendant[s] can establish that Berlangieri's fall occurred while he
was riding a horse. In my view, there is no disputed question of fact that
Berlangieri's injuries did not occur as a result of equine behavior even though
they may have occurred during equine behavior. Thus, under the specific language
of the Equine Liability Act, the Act offers no shelter for the Defendants.
Turning to the Release, the district court, citing
Albuquerque Tire Co. v. Mountain States Tel. & Tel. Co., 102 N.M. 445, 697 P.2d
128 (1985), observed that "New Mexico consistently enforces signed waivers of
liability in the same form as the one Berlangieri signed in this case." The
district court noted, and rejected, Plaintiff's argument that enforcement of the
Release would violate the public policy of New Mexico as expressed in the Equine
Liability Act. The district court concluded that "no overriding public policy
exists sufficient to invoke the exception to the general rule that contractual
agreements which shift the risk of injury are valid and enforceable in this
state."
DISCUSSION
1. The Release
We agree with the following statements regarding the
relationship of public policy to freedom of contract:
Whether a contract is against
public policy is a question of law for the court to determine from all the
circumstances of each case. It is clearly to the interest of the public that
persons should not be unnecessarily restricted in their freedom to make their
own contracts, and agreements therefore are not to be held void as being
contrary to public policy, unless they are clearly contrary to what the
legislature or judicial decision has declared to be the public policy, or they
manifestly tend to injure the public in some way. On the other hand the
interests of the public do require that there shall be some restrictions on the
freedom of persons to enter into contracts; and if an agreement binds a party to
do or not to do anything, the doing or omission of which is manifestly injurious
to the public interests, the courts must declare it contrary to public policy
and therefore illegal and void.
IX Cyclopedia of Law and Procedure 483-85 (William Mack &
Howard P. Nash eds.1903 (footnotes omitted).
In the district court, Plaintiff looked solely to the
Equine Liability Act, NMSA 1978, §§ 42-13-1 to -5 (1993, as amended through
1995) (hereafter the ELA), as a source of public policy offsetting the principle
of freedom of contract. We agree with the district court that nothing in the ELA
itself suggests that the Legislature intended the ELA to alter common-law
principles governing the enforcement of exculpatory agreements. Plaintiff
erroneously assumes that the ELA enacted a quid pro quo by which providers or
sponsors of equine activities receive limited liability as to injuries to riders
occurring as the result of equine behavior, and, in return, are subjected to
non-disclaimable liability to riders whose injuries were caused by one of the
circumstances set out in Section 42-13-4(C). We do not read the ELA as having
enacted any such quid pro quo. Cf. Martin-Martinez v. 6001, Inc., 1998-NMCA-179,
¶¶ 5,6, 126 N.M. 319, 968 P.2d 1182 (characterizing exclusivity provisions of
the Workers' Compensation Act as part of the quid pro quo established by the
legislative balancing interests of employers and employees). The public policy
underlying the ELA is the promotion of equine activities, not the protection of
riders who are injured in the course of equine activities: "It is the purpose of
the legislature to encourage owners, trainers, operators and promoters to
sponsor or engage in equine activities by providing that no person shall recover
for injuries resulting from the risks related to the behavior of equine animals
while engaged in any equine activities." Section 42- 13-2. Except as the ELA
expressly limits liabilities, it leaves common-law rights and remedies intact,
and, therefore, it is to the public policies informing the common law that we
must look to determine whether the exculpatory agreement at issue in the present
case is enforceable.
The earliest statement by a New Mexico appellate court
regarding the relationship of public policy to exculpatory agreements is found
in Southwestern Pub. Serv. Co. v. Artesia Alfalfa Growers' Ass'n, 67 N.M. 108,
353 P.2d 62 (1960). There, our Supreme Court observed "[t]he rule is well
established that a provision in a contract seeking to relieve a party to the
contract from liability for his own negligence is void and unenforceable, if the
provision is violative of law or contrary to some rule of public policy." Id.
Our Supreme Court went on to hold that an electric utility "cannot validly
contract against its liability for negligence in the performance of a duty of
public service, since such stipulation would be in contravention of public
policy." Id . at 122, 353 P.2d at 71.
Subsequent cases have held that public policy does not
preclude enforcement of contractual provisions exculpating an investment advisor
from liability for negligence in advising an investor to enter into a prohibited
transaction, State ex rel. Udall v. Colonial Penn Ins. Co., 112 N.M. 123, 812
P.2d 777 (1991); exculpating a telephone company for negligence in listing an
incorrect number in a customer's yellow pages advertisement, Albuquerque Tire
Co., 102 N.M. 445, 697 P.2d 128; and, exculpating a bank acting as an escrow
agent for negligence in terminating escrows, Lynch v. Santa Fe Nat'l Bank, 97
N.M. 554, 627 P.2d 1247 (Ct.App.1981). However, each of these prior cases
involved transactions in which the releasor faced a risk of economic loss; no
reported New Mexico case has considered whether an exculpatory agreement is
effective to relieve a commercial enterprise from liability for failing to
exercise ordinary care to protect a patron from a risk of serious physical
injury or death. Whether an exculpatory clause is effective to relieve a
commercial enterprise from liability for failing to exercise ordinary care to
protect a patron from a risk of serious physical injury or death presents a
matter of first impression for New Mexico appellate courts.
Exculpatory provisions, such as the Release at issue in the
present case, present us with the question of whether the policies favoring
freedom of contract should prevail over the policies that inform tort law.
Stanley v. Creighton Co., 911 P.2d 705, 706 (Colo.Ct.App.1996) (holding
exculpatory agreement in residential lease to be violative of public policy and
unenforceable against tenant). We are not convinced that the societal interests
furthered by the law of negligence are proper subjects of a private agreement
between contracting parties in situations where the releasee is engaged in a
business that if not conducted in the exercise of ordinary care presents a risk
of serious physical injury or death to the releasor.
Our Supreme Court has identified the following policies
furthered by the law of negligence:
Our fault system of recovery
... serves the important social functions of [1] redistributing the economic
burden of loss from the injured individuals on whom it originally fell, [2]
deterring conduct that society regards as unreasonable or immoral, and [3]
providing a vehicle by which injured victims may obtain some degree of
compensation and satisfaction for wrongs committed against them and [4] by which
society may give voice and form to its condemnation of the wrongdoer.
Trujillo v. City of Albuquerque, 110 N.M. 621, 624, 798
P.2d 571, 574 (1990), rev'd on other grounds, 1998-NMSC-031, 125 N.M. 721, 965
P.2d 305. Clearly, as to the second and fourth Trujillo factors, a private
agreement cannot nullify society's interest in "deterring conduct that society
regards as unreasonable" or deny society the opportunity to "give voice and form
to its condemnation of the wrongdoer." Id. at 624, 798 P.2d at 574. The
remaining Trujillo factors-society's interests in "redistributing the economic
burden of loss" and "providing a vehicle by which injured victims may obtain
some degree of compensation"-are also implicated by ostensibly private
agreements purporting to release claims for negligence resulting in personal
injury:
Superficially, the personal
responsibility model advocated by the exculpatory agreement assumes that the
person engaged in the activity bears the burdens created when he or she is
injured.... Even in the case of an unmarried participant, the loss of income or
ability to work can produce extreme burdens. The question then becomes, who
absorbs those burdens?
....
... The answer to the question
is that society absorbs these burdens. Specifically, a combination of private
(i.e. friends and family) and public (i.e. the welfare system) assistance
shoulders the weight.
Mario R. Arango & William R. Trueba, Jr., The Sports
Chamber: Exculpatory Agreements Under Pressure, 14 U. Miami Ent. & Sports L.Rev.
1, 33 (1997). "Wholly apart from the higher humanitarian questions involved, the
increased burden thus placed upon the state for charitable purposes would be, in
and of itself sufficient to affect contracts of this character with a vital
public interest." Pittsburgh, C., C. & St. L. Ry. Co. v. Kinney, 115 N.E. 505,
508 (Ohio 1916) (holding void as against public policy contract purporting to
release employer from liability for physical injury to employee caused by
employer's negligence). The effect of the Release is to require society to
subsidize Defendants' negligent operation of their business. See Doe v. Miles
Labs., Inc., 675 F.Supp. 1466, 1471 (D.Md.1987) (observing that in absence of
tort cause of action against manufacturers of defective products "the costs or
externalities are thrust upon victims or upon society through its governmental
welfare programs" and that in absence of a tort cause of action society would be
subsidizing polluting or defective products).
{17} Nationwide, "[e]quine activities are a popular form
of recreation for an estimated thirty million people." Terence J. Centner, The
New Equine Liability Statutes, 62 Tenn. L.Rev. 997 (1995) (emphasis added).
"Riding horses may involve greater risk of fatal injury than most other sports,
such as football and hockey. A study of hospital emergency room data during
1989-90 disclosed that approximately twenty percent of the total reported
121,274 horseback-related injuries were head or neck injuries." Id. at 998
(emphasis added and footnotes omitted). There can be no doubt that equine
activities expose substantial numbers of consumers to risks of serious physical
harm.
Moreover, we believe that many--perhaps most--New Mexicans
view participation in some sport or outdoor activity as an essential part of
their lives. As cases from other jurisdiction indicate, the use of exculpatory
releases by proprietors of sports and recreational facilities has become
epidemic. See generally Randy J. Sutton, Annotation, Validity, Construction, and
Effect of Agreement Exempting Operator of Amusement Facility from Liability for
Personal Injury or Death of Patron, 54 A.L.R.5th 513 (1997). Because we doubt
that there is a principled basis under New Mexico law for limiting the use of
exculpatory agreements to horseback riding, a decision upholding the Release in
this case will affect the legal rights of participants in many other outdoor
activities and sports.
We must decide the question
presented to us upon the theory that we are not adjudicating for this particular
plaintiff and defendant, but for all who may desire to take advantage of the
principle which shall finally be established upon this question.... [W]e must
fairly look, not upon the narrowest limitations which might be placed upon the
effects of a decision holding such a release valid, but rather upon the
possibilities for harm therefrom to the public.
Johnson v. Fargo, 90 N.Y.S. 725, 731 (N.Y.App.Div.1904)
(refusing to enforce release absolving employer from liability for negligence
resulting in personal injury to employee). While an individual release may not
of itself constitute a matter of public interest, exculpatory agreements as a
class present a matter of public interest. Dalury v. S-K-I, Ltd., 670 A.2d 795,
799 (Vt.1995) (invalidating disclaimer exacted by operator of ski area;
observing: that "[e]ach ticket sale may be, for some purposes, a purely private
transaction. But when a substantial number of such sales take place as a result
of the seller's general invitation to the public to utilize the facilities and
services in question, a legitimate public interest arises.").
We recognize that the clear majority of jurisdictions have
upheld the type of release at issue here. In our view, these courts miss the
crucial qualitative distinction between physical injury or death and damage to
property or other purely economic interests. We agree with the Virginia Supreme
Court that cases upholding exculpatory agreements in cases involving property
damage are not controlling in cases involving releases of liability for
negligence resulting in personal injury. Hiett v. Lake Barcroft Cmty. Ass'n, 418
S.E.2d 894 (Va.1992) (distinguishing between physical injury and property
damage; holding release exculpating sponsor of triathalon void as against public
policy); Maucher v. Chicago, R.I. & P. Ry. Co., 159 N.W. 422 (Neb.1916) (holding
exculpatory provision void as against public policy; observing that "this was
not a contract for the transportation of a mere piece of inanimate freight. It
was a contract for the transportation of a person in whose life and safety the
state has an interest."); see also NMSA 1978, § 55-2-719(3) (1961) ("Limitation
of consequential damages for injury to the person in the case of consumer goods
is prima facie unconscionable but limitation of damages where the loss is
commercial is not."); Restatement (Third) of Torts: Prod. Liab. § 18 (1997)
("Disclaimers and limitations of remedies by product sellers or other
distributors, waivers by product purchasers, and other similar contractual
exculpations, oral or written, do not bar or reduce otherwise valid
products-liability claims against sellers or other distributors of new products
for harm to persons.").
The fact that a recreational activity involves some
inherent risk of physical injury does not justify relieving the operators of
recreational facilities of a duty of care to protect patrons against
unreasonable and unnecessary risks. See Dalury, 670 A.2d at 800 (refusing to
enforce release relieving operator of ski resort for negligence in maintaining
its premises; distinguishing between inherent risks of sport and risks that are
"neither an inherent risk nor an obvious and necessary one in the sport of
skiing"); Stephen D. Sugarman, Assumption of Risk, 31 Val. U.L.Rev. 833, 837-38
(1997) (citing baseball stadium as example of "no breach" case in which
defendant has not acted unreasonably in exposing plaintiff to known risk because
complete elimination of risk would be incompatible with enjoyment of game of
baseball). We remain confident that jurors are capable of distinguishing between
risks of injury that cannot be eliminated without depriving a sport or
recreational activity of its essential character and unnecessary risks that
arise as the result of the proprietor's failure to exercise due care for its
patrons. See UJI 13-1603 NMRA 2002 ("What constitutes 'ordinary care' varies
with the nature of what is being done.").
We do not mean to suggest that courts should disregard a
plaintiff's own role in deciding to engage in a particular activity.
"Increasingly, risky recreational activities such as skydiving, rock climbing,
and hang gliding are a socially acceptable means of exercising self-affirming
autonomy and experiencing the sense of self-mastery that voluntary risk taking
can provide." Donald P. Judges, Of Rocks and Hard Places: The Value of Risk
Choice, 42 Emory L.J. 1, 27 (1993). A plaintiff who engages in an activity that
he knows or should know is beyond his or her capabilities is subject to the
defense of his or her own comparative fault.
To summarize, we hold that the Release is unenforceable.
Public policy imposes on commercial operators of recreational or sports
facilities a non-disclaimable duty to exercise due care to avoid risks of
physical injury to consumers. Our holding should not be understood as altering
settled law enforcing releases in certain commercial settings where the releasor
is subject solely to a risk of property damage or other purely economic loss.
2. The Equine Liability Act
The ELA provides as follows:
A. No person, corporation or
partnership is liable for personal injuries to or for the death of a rider that
may occur as a result of the behavior of equine animals while engaged in any
equine activities.
....
C. Nothing in the [ELA] ...
shall be construed to prevent or limit the liability of the operator, owner,
trainer or promoter of an equine activity who:
(1) provided the equipment or
tack, and knew or should have known that the equipment or tack was faulty and an
injury was the proximate result of the faulty condition of the equipment or
tack[.]
Section 42-13-4(A),(C). Equine activities include "riding
an equine belonging to another." Section 42-13-3(B)(4). "[The] behavior of
equine animals" includes "the propensity of an equine animal to ... bolt ...
[or] be unpredictable." Section 42-13-3(C).
{24} We read Section 42-13-4(A) to create a broad grant of
immunity from liability for negligence conditioned upon two circumstances: (1)
the plaintiff- rider was injured while engaged in equine activities, and (2) the
plaintiff's injuries were a result of equine behavior. We interpret the words
"were a result of" to include the concept of proximate cause. As we read Section
42-13- 4(A), equine behavior need not be the sole proximate cause of the
plaintiff's injuries; a defendant obtains the benefit of the ELA's grant of
immunity where equine behavior was merely one of several concurring causes of
the plaintiff's injuries. See UJI 13-305 NMRA 2002 ("[Proximate cause] need not
be the only cause, nor the last nor nearest cause.").
Under Section 42-13-4(C)(1), a plaintiff may overcome the
ELA's grant of immunity by establishing that (1) the defendant provided
equipment or tack; (2) the equipment or tack was provided in a "faulty
condition"; and (3) his injuries were "the proximate result" of the faulty
condition of the equipment or tack. We recognize that in Section 42-13-4(C)(1),
the Legislature refers to "the proximate result," while in Section 42-13-4(A),
the Legislature refers to "a result." The Legislature's employment of the
definite article "the," rather than the indefinite article "a," in Section
42-13-4(C)(1) suggests that the Legislature may have intended the exception
provided by Section 42-13-4(C)(1) to apply only where faulty equipment is the
sole proximate cause of a rider's injuries. This interpretation would
significantly limit plaintiffs' recourse to Section 42-13-4(C)(1) to overcome
the ELA's grant of immunity. The difficulty with this interpretation is that if
faulty tack or equipment is the sole proximate cause of a rider's injury, then
equine behavior is necessarily excluded as a proximate cause of the rider's
injury. This interpretation results in the anomalous situation in which the
exception applies only where the general rule is inapplicable.
We conclude that a more sensible reading of Section
4-13-4(C)(1) is to treat the proximate cause element as paralleling that of
Section 42-13-4(A). Thus, we hold that the exception provided by Section
42-13-4(C)(1) applies even if the faulty condition of equipment or tack was not
the exclusive proximate cause of the rider's injuries.
Lastly, we consider whether physically sound equipment or
tack can be considered to be in a "faulty condition" because it has been
improperly applied to or positioned on a horse. We find the terms "faulty" and
"faulty condition" to be reasonably susceptible to an interpretation extending
them to situations in which the fault consists of applying or positioning the
equipment or tack in an unsafe manner. The ELA sacrifices the common-law rights
of a class of plaintiffs-many of whom can be expected to have suffered serious
physical injury as the result of the unreasonable conduct of the protected class
of defendants-in order to promote equine activities. Because we view the ELA as
special interest legislation and not as remedial legislation designed to correct
a shortcoming in the common law, we construe ambiguous language in the ELA in
favor of Plaintiff's important common-law right to recover damages for personal
injury and against limited liability. Accordingly, we hold that faulty equipment
or tack includes physically sound equipment or tack that has been improperly
applied or positioned in an unsafe manner.
Applying these principles, we reach the following
conclusions about the present case. Evidence that Plaintiff's horse bolted as it
approached the stable at the end of the horseback riding expedition would permit
a reasonable jury to conclude that Plaintiff's injuries occurred during equine
activity and were the result of equine behavior. If this were the only evidence
before the district court, it properly could have granted Defendants' motion for
summary judgment. The record, however, contains additional evidence. The
affidavits of the two eyewitnesses to the accident describe the peculiar manner
in which Plaintiff fell from his horse. One witness recalled observing
Plaintiff's horse without a saddle approximately two minutes after the accident.
The record also included a photograph showing another participant in the trail
ride sitting on his horse. Based on these eyewitness accounts and the position
of the saddle as shown in the photo of the other horse, Plaintiff's expert
witness stated in her affidavit that improper positioning of the saddle too far
to the rear of the horse or a failure of the saddle itself caused the saddle to
slip sideways off the horse. The evidence was sufficient to support reasonable
inferences that Plaintiff's injuries were the proximate result of improper
saddling of Plaintiff's horse and that the employee who saddled the horse knew
or should have known of the faulty positioning of the tack. This evidence
creates genuine issues of material fact as to the applicability of Section
42-13-4(C)(1). We therefore affirm the district court's denial of summary
judgment as to Defendants' ELA affirmative defense.
* * *
CONCLUSION
The order of the district court granting summary judgment
in favor of Defendants is reversed and this case is remanded for further
proceedings leading to trial on the merits.
SUTIN, Judge (dissenting).
I respectfully dissent.
I. Word Usage
For convenience, I refer to one providing an opportunity to
engage in recreational activity as an "operator"; an exculpatory contract clause
by which an operator disclaims or absolves itself from liability for negligence
that causes personal injury or death as a "release"; and an individual who
chooses to engage in recreational activity as a "recreation seeker."
II. Introductory Observations
The majority holds that public policy imposes on operators
a non- disclaimable duty of due care. This means no release is enforceable. Some
risk of harm is inherent in most recreational activities. The level of that
inherent risk varies depending on the particular activity. Recreation seekers
face an enhanced level of risk of harm if the operator is negligent. Recreation
is certainly beneficial to our mental and physical well-being. We can, of
course, engage in recreational activities on our own. But some recreational
activities can reasonably be pursued only when an operator provides or sponsors
the activity.
In the legal landscape on which we tread, concepts of
individual freedom and independence clash with those advanced for full societal
protection for people injured as a result of another's fault. Contract policy
faces tort policy. Our historical acceptance in law of express assumption of
risk is questioned in the face of resulting personal injury. All this, although
the goal of both recreation seeker and operator is the exercise of due care by
both.
I disfavor the bold jump made by the majority without the
issue having been tried below; without the issue having been placed before us by
the parties; without the benefit of amicus curiae; without a better explanation
of why we should depart from widespread, entrenched law; and without a better
understanding of why the policies and law are not better addressed in our
Legislature. The issue needs analysis and discussion in the nature of that which
preceded and accompanied the groundbreaking cases of Mazetti v. Armour & Co.,
135 P. 633 (Wash.1913), MacPherson v. Buick Motor Co., 111 N.E. 1050 (N.Y.1916),
and Henningsen v. Bloomfield Motors, Inc., 161 A.2d 69 (N.J.1960).
III. What Invalidating All Releases Covers and Affects
The sole issue raised in the district court and on appeal
is whether the New Mexico Equine Liability Act, NMSA 1978, §§ 42-13-1 to -5
(1993, as amended through 1995), expresses a public policy that is violated by
the release signed by Plaintiff. Even allowing a leap over this limited issue,
the next issue in line is whether the specific release can be enforced as
written and under the circumstances of this case, not that reached by the
majority declaring all releases in the entire commercial recreation industry to
be per se against public policy and unenforceable.
The majority's all-inclusive determination spreads through
the entire spectrum of the recreation provider industry, from small individual
operators to high revenue corporate operators. Its determination covers every
"commercial" shoestring as well as large scale individuals and organizations
providing or sponsoring horseback riding, hunting, scuba diving, river rafting,
backpacking (with or without pack horses), walking, swimming, running,
bicycling, bungee-jumping, hang gliding, mountaineering, snowmobiling, indoor
and outdoor rock climbing, weight training, parachuting, cross-country skiing,
downhill skiing, flying, and race car driving. It covers resort, ranch, and
health club operators who provide any recreational activity. It covers
individuals and organizations who teach, train, and instruct in safety, as well
as individuals and organizations who provide the means to engage in a
recreational activity. The majority makes no distinction as to level of risk of
harm. It makes no distinction as to conduct comprising the lack of ordinary
care.
The majority opinion does not define "commercial." The
holding is presumably meant to apply to operators engaged in commerce, which
includes non- profit entities. If by "commerce" the majority means for-profit
operators only, the majority nowhere explains why a distinction should be made
between non- profit and for-profit operators. If the fault-based public policy
asserted by the majority is as strong as the majority contends, such a
distinction, if intended, is unwarranted.
IV. The Status of the Law
The majority joins a very small and static minority. The
majority recognizes that "the clear majority of jurisdictions have upheld the
type of release at issue here." Majority Opinion ¶ 19. The growth of the common
law throughout the country has resulted in the widespread general rule that
releases are enforceable. Few jurisdictions, and no recent legal commentary that
I have seen, have bought into the absolute, end of the spectrum view taken by
the majority as a solution to the concerns about releases. Rather, settled
exceptions to the general rule have evolved over time.
Exceptions were carved out when a release violated law or
public policy. Public policy exceptions have been applied to releases protecting
employers, manufacturers and suppliers in strict products liability, innkeepers,
warehousemen, public utilities, common carriers, banks, and hospitals. An
exception exists when a state legislature has enacted legislation regulating
safety and allocating responsibility with respect to a particular activity. But
the general rule nevertheless remains the rule and it has been, and can continue
to be, applied on a case-by-case basis. The majority replaces the general rule
with a general rule that no operator release is valid, likely setting us on a
course of carving out exceptions on a case-by-case basis to this new general
rule.
The American Law Institute had every opportunity to
significantly change Section 496B (allowing express assumption of risk) in the
Second Restatement when it adopted Section 2 in the Third Restatement. Section
496B read: "A plaintiff who by contract or otherwise expressly agrees to accept
a risk of harm arising from the defendant's negligent or reckless conduct cannot
recover for such harm, unless the agreement is invalid as contrary to public
policy." Restatement (Second) of Torts § 496B (1964). Recently amended, the
Restatement now reads:
When permitted by contract
law, substantive law governing the claim, and applicable rules of construction,
a contract between the plaintiff and another person absolving the person from
liability for future harm bars the plaintiff's recovery from that person for the
harm. Unlike a plaintiff's negligence, a valid contractual limitation on
liability does not provide an occasion for the factfinder to assign a percentage
of responsibility to any party or other person.
Restatement (Third) of Torts § 2 (1999). Comment b to this
section reads:
Rationale and effect. In
appropriate situations, the parties to a transaction should be able to agree
which of them should bear the risk of injury, even when the injury is caused by
a party's legally culpable conduct. That policy is not altered or undermined by
the adoption of comparative responsibility. Consequently, a valid contractual
limitation on liability, within its terms, creates an absolute bar to a
plaintiff's recovery from the other party to the contract.
Id., cmt. b. We view "[t]he Restatement of Torts [to be]
persuasive authority entitled to great weight." Moore v. Burn Constr. Co., 98
N.M. 190, 193, 646 P.2d 1254, 1257 (Ct.App.1982). Restatement (Second) of
Contracts § 195(2), (3) (1979) reads:
(2) A term exempting a party
from tort liability for harm caused negligently is unenforceable on grounds of
public policy if
(a) the term exempts an
employer from liability to an employee for injury in the course of his
employment;
(b) the term exempts one
charged with a duty of public service from liability to one to whom that duty is
owed for compensation for breach of that duty, or
(c) the other party is
similarly a member of a class protected against the class to which the first
party belongs.
(3) A term exempting a seller
of a product from his special tort liability for physical harm to a user or
consumer is unenforceable on grounds of public policy unless the term is fairly
bargained for and is consistent with the policy underlying that liability.
Comment a (rationale) to the
Restatement (Second) of Contracts reads: "The law of torts imposes standards of
conduct for the protection of others against unreasonable risk of harm.... [A]
party to a contract can ordinarily exempt himself from liability for harm caused
by his failure to observe the standard of reasonable care imposed by the law of
negligence." Id., cmt. a (citations omitted).
A recent American Law Reports (ALR) annotation, which
appears to be the broadest annotation on releases, concludes:
A release signed by a patron
exempting the owner or operator of [a] ... facility from liability may be
enforceable provided that the form and language of the release are in a form
which is conspicuous, legible, and recognizable by a reasonable person as a
release from liability.
Randy J. Sutton, Annotation, Validity, Construction, and
Effect of Agreement Exempting Operator of Amusement Facility From Liability for
Personal Injury or Death of Patron, 54 A.L.R.5th 513 (1997). This ALR also
states:
In general, courts have
enforced exculpatory agreements between proprietors ... and their patrons, so
long as there is no statutory prohibition against such clauses, the facility is
not providing an essential or public service, and there is not a great deal of
disparity in bargaining power between the sellers and buyers ... as is the case
in so-called adhesion contracts.
Id.
American Jurisprudence's recent Proof of Facts on "Avoiding
the Effect of a Recreational Activity Liability Release" states "[r]eleases of
liability in favor of a recreational activity operator are generally
enforceable, as it is proper for a participant and the operator to expressly
agree in advance that the operator will not be liable for its negligence." 33
Am.Jur.3d Proof of Facts § 421 (1995).
Current law review article authors recommend that various
issues relating to releases be addressed and reforms be implemented, but none
among the many I reviewed recommends completely scuttling the traditional
general rule. See, e.g., Mario R. Arango & William R. Trueba, Jr., The Sports
Chamber: Exculpatory Agreements Under Pressure, 14 U. Miami Ent. & Sports L.Rev.
1 (1997).
The bulk of the case law today enforces operator releases,
subject to exceptions. See, e.g., Brooks v. Timberline, 127 F.3d 1273, 1274-75
(10th Cir.1997) (applying Colorado law, snowmobiling); Street v. Darwin Ranch,
Inc., 75 F.Supp.2d 1296, 1299 (D.Wyo.1999) (horseback riding); Moore v. Hartley
Motors, Inc., 36 P.3d 628, 631-32 (Alaska 2001) (all-terrain vehicle); Jones v.
Dressel, 623 P.2d 370, 375-76 (Colo.1981) (en banc ) (parachute jumping); Lee v.
Sun Valley Co., 695 P.2d 361, 363 (Idaho 1984) (horseback riding); Cormier v.
Cent. Mass. Chapter of the Nat'l Safety Council, 620 N.E.2d 784, 786 (Mass.1993)
(motorcycle safety course); Moss v. Fortune, 340 S.W.2d 902, 903-04 (Tenn.1960)
(horseback riding); Murphy v. N. Am. River Runners, Inc., 412 S.E.2d 504, 508-09
(W.Va.1991) (whitewater rafting); Milligan v. Big Valley Corp., 754 P.2d 1063,
1066 (Wyo.1988) (ski racing at resort); Williams v. Cox Enters., Inc., 283
S.E.2d 367, 369 (Ga.Ct.App.1981); Marshall v. Blue Springs Corp., 641 N.E.2d 92,
95 (Ind.Ct.App.1994) (scuba diver slip and fall on dock); Dombrowski v. City of
Omer, 502 N.W.2d 707, 709 (Mich.Ct.App.1993) (crossing river while hanging from
rope stretched across river); Swartzentruber v. Wee-k Corp., 690 N.E.2d 941, 945
(Ohio Ct.App.1997) (horseback riding); Mann v. Wetter, 785 P.2d 1064, 1066
(Or.Ct.App.1990) (in banc ) (scuba diving); Boyce v. West, 862 P.2d 592, 596
(Wash.Ct.App.1993) (scuba diving).
The majority relies on four cases that invalidate releases.
One was decided in 1904, the other in 1916. One of these involved an
employer-employee relationship, the other the railroad transportation of
freight. Majority Opinion ¶¶ 18, 19. The two other cases involved operator
releases and were premises liability oriented. In Dalury v. S-K-I, Ltd., 670
A.2d 795 (Vt.1995), a skier collided with a metal pole on a ski run. Dalury does
not outlaw, on a blanket basis, all releases in the recreation industry. The
court in Dalury recognized the wisdom considering various factors "as relevant
considerations" in determining the validity of a release. Id. at 798. Further,
Dalury concludes that the proper formula is a " 'determination of what
constitutes the public interest [while] considering the totality of
circumstances of any given case against the backdrop of current societal
expectations .' " Id. (quoting Wolf v. Ford, 644 A.2d 522, 527 (1994)
(discussing the various factors set out in the widely-cited case Tunkl v.
Regents of the Univ. of Cal., 383 P.2d 441 (Cal.1963) (in bank ))).
The other, Hiett v. Lake Barcroft Cmty. Ass'n, 418 S .E.2d
894 (Va.1992), involved a triathlon sponsored by a community association where
the participant hit his head on a rock when starting the swim portion of the
event. Hiett simply followed a sleeping 1890 precedent that had not been
modified or altered. Id . at 897. The 1890 precedent did not involve
recreational activity, but rather an agreement between a railroad company and
its employee that specified the railroad would not be liable for injuries or
death sustained by its employees occurring from any cause whatsoever. Id. at
896.
The overwhelming case law today and for years on end has
refused to hold releases per se invalid. See, e.g., Marshall, 641 N.E.2d at 95
("[I]t is not against public policy to enter into an agreement which exculpates
one from the consequences of his own negligence."); Cormier, 620 N.E.2d at 786
(holding the allocation of risk by agreement is not against public policy);
Dombrowski, 502 N.W.2d at 709 ("[I]t is not contrary to this state's public
policy for a party to contract against liability for damages caused by ordinary
negligence."); Swartzentruber, 690 N .E.2d at 945 (holding exculpatory contracts
that bar an action in negligence are not per se void as against public policy).
V. Rationale and Policy
The driving force behind the majority's holding is that as
long as releases are enforceable the public must ultimately pick up the tab for
the harm and at the same time subsidize an operator's negligence. Majority
Opinion ¶ 16. From information obtained from a law review article, the majority
states equine activities involve thirty million people and result in tens of
thousands of head and neck injuries. Majority Opinion ¶ 17. But we have no idea
how many equine related injuries are due to the behavior of equine animals for
which operators are immune under New Mexico's Equine Liability Act. See §
42-13-4(A). The majority perceives an "epidemic" use of releases. Majority
Opinion ¶ 18. But we have before us no study of the use of releases in the New
Mexico recreation industry, the number of people in New Mexico affected by the
use of releases, and the extent of injuries received due to New Mexico operator
negligence.
Nor have we any information on the extent to which a
recreation seeker's own health insurance will pay for medical expenses from a
recreational activity injury. Since the majority is not concerned with releases
barring liability for economic damages, the risk-taker's loss of wages should be
irrelevant. This leaves damages for pain and suffering, which is not necessarily
on the public's tab. Also missing is any analysis of economic considerations
such as cost of operator insurance, risk of business failure due to higher
pricing in order to pay for operator insurance, and overall effect on the New
Mexico economy. Further, we should not assume that operators are any less likely
with a release than with insurance coverage to concentrate on the use of
ordinary care.
No credence is given to the extent New Mexico citizens
value recreational activity and seek adventure, competition, and independence,
and to the physical and mental health achieved through such activity, regardless
of releases. If the existence or not of releases makes a difference, recreation
seekers might prefer the availability of more activities with releases than
fewer without releases. The majority does not recognize the citizen's choice to
knowingly and voluntarily engage in recreational activities of their choosing
and to assume the risk of and responsibility for the harm that may result.
Granted, past views about "freedom of contract" and of
assumption of risk have sometimes given way to policies underlying our fault
system of recovery. From careful and studied analyses of law and economics, and
based on contemporary community standards of morality and right conduct, courts
may deem it appropriate to dramatically change the course of the law as
occurred, for example, with the adoption of strict products liability. But the
general rule permitting releases based on express assumption of risk, while
appropriately limited by well-developed exceptions, has not outlived all
beneficial life when applied to the recreation industry. The court can still
effectively apply public policy and contract validity analyses as each case
arises. I see no pressing need to replace the traditional and long-accepted
analysis with a blanket outlawing of releases as malum in se.
A vehicle has just driven over New Mexico's express
assumption of risk doctrine rendering the doctrine road kill. It has done so by
holding "the policies that inform tort law" to be a copyright that cannot be
infringed by contract. The day before the filing of the majority's decision
express assumption of risk was alive. See Thompson v. Ruidoso-Sunland, Inc., 105
N.M. 487, 492, 734 P.2d 267, 272 (Ct.App.1987) (indicating the concept of
express assumption of risk still exists in New Mexico). Releases relating to
negligence were, and apparently still are, valid when only economic damages are
at stake. See State ex rel. Udall v. Colonial Penn Ins. Co., 112 N.M. 123, 126,
812 P.2d 777, 780 (1991) (implicitly validating release as to negligence in
professional services contract and affirming the "countervailing public policy
consideration--the freedom to contract"); Omni Aviation Managers, Inc. v.
Buckley, 97 N.M. 477, 479, 641 P.2d 508, 510 (1982) (stating "an ordinary bailee
... may limit or disclaim his liability for his own negligence by so providing
in the contract of bailment"); Lynch v. Santa Fe Nat'l Bank, 97 N.M. 554, 556,
560, 627 P.2d 1247, 1249, 1253 (Ct.App.1981) (upholding release in escrow
agreement against liability for negligence in terminating escrows). Lynch
actually relied in its analysis on the widely followed if not leading Tunkl
case, which involved the validity of a release asserted by a hospital to bar
damages for personal injury.
The majority places negligence in recreational activity in
the same category as strict products liability presumably based in part on
underlying rationale that the cost of injury to consumers of services, just as
with the consumers of products, should be borne by the industry through the
purchase of insurance. This thinking, of course, can apply to every business in
every industry. The majority has chosen the recreation provider industry. While
one of the underlying bases for negligence liability may be "the important
social functions of redistributing the economic burden of loss from injured
individuals on whom it originally fell," Trujillo v. City of Albuquerque, 110
N.M. 621, 624, 798 P.2d 571, 574 (1990), rev'd on other grounds, 1998- NMSC-031,
125 N.M. 721, 965 P.2d 305, I disagree with the majority's view that this, like
the area of strict products liability, see Henningsen, 161 A.2d at 94-95 and
Restatement (Third) of Torts, Products Liability, § 18 (1997), provides a basis
on which to automatically refuse to enforce any release in the entire recreation
provider industry. Strict liability is distinct from negligence. Breach is
imputed as a matter of law; breach is not based on foreseeability. See Saiz v.
Belen Sch. Dist., 113 N.M. 387, 402, 827 P.2d 102, 117 (1992). A defective
product line presents a considerably different risk to the public in New Mexico
than an operator's employee who may fail on occasion to exercise due care.
Recreational services in New Mexico are not of the same significance and
proportion as products which, when manufactured, are of a "nature of a thing ...
such that it is reasonably certain to place life and limb in peril when
negligently made, [becoming] a thing of danger," MacPherson, 111 N.E. at 1053,
thereby requiring this Court to completely undo express assumption of risk and
have negligence doctrine fettered only by comparative negligence law.
The majority places public policy exclusively within
existing tort law ignoring public policy in contract law. Yet "every law is an
expression of a state's public policy." Reagan v. McGee Drilling Corp.,
1997-NMCA-014, ¶ 9, 123 N.M. 68, 933 P.2d 867 (1997). The majority says the
policies that "inform" our fault system of recovery should prevail over policies
that "inform" the contract law of assumption of risk. Yet one can validly argue
"exculpatory provisions should be enforced by society because the person
releasing another from the consequence of his own negligence, has promised to do
so." Donald E. Lowrey, Shielding Against Future Negligence Liability: The Role
of Exculpatory Contract Provisions in Personal Injury Actions, 12 W. St. L.Rev.
819, 834 (1985). "Releases, being contractual in nature, are governed by the
laws of contracts generally, as well as any specific legislative acts
prescribing the manner by which such agreements may be validated." Ratzlaff v.
Seven Bar Flying Serv., Inc., 98 N.M. 159, 162, 646 P.2d 586, 589 (Ct.App.1982).
The public policy that the majority places in second position is the
preservation of contract and express assumption of risk permitting adults to
knowingly and voluntarily contract in a manner in which risks are understood and
assumed and a right to sue thereby given up. The concept of "freedom to
contract" has not by any means been eliminated in New Mexico. See Colonial Penn
Ins. Co., 112 N.M. at 126, 130, 812 P.2d at 780, 784 (affirming New Mexico
public policy of freedom to contract); see also, e.g., Adams v. Roark, 686
S.W.2d 73, 75 (Tenn.1985) (stating "the case law and announced public policy of
Tennessee favors freedom to contract against liability for negligence").
Several states have enacted legislation pursuant to which
the courts have invalidated releases as violative of the state's public policy
as set by that state's legislature. See, e.g ., Lee, 695 P.2d at 363; Murphy,
412 S.E.2d at 508-09; Milligan, 754 P.2d at 1066. Our Legislature has entered
the arena by declaring certain agreements to indemnify for one's own negligence
to be against public policy and void. See NMSA 1978, §§ 56-7-1 (1971), -2
(1999); see also Guitard v. Gulf Oil Co., 100 N.M. 358, 361-62, 670 P.2d 969,
972-73 (Ct.App.1983) (analyzing validity of agreement to indemnify a party for
its own negligence under Section 56-7-2(A) and holding indemnification agreement
void and unenforceable under statute as to liability for indemnitee's percentage
of negligence).
If our Legislature wants to modify the common law to
invalidate operator releases in a particular recreational activity or across the
board, it presumably can. If the Legislature wants to regulate recreational
activity, set safety standards for operators, and establish a public safety
policy to which releases would be antithetical, the Legislature can enact such
legislation. Note that the Legislature has enacted laws regarding liability in
the equine and ski industries. See The New Mexico Ski Safety Act, NMSA 1978, §§
24-15-1 to -14 (1969, as amended through 1997), and the Equine Liability Act, §§
42-13-1 to -5. Note, too, our Supreme Court has placed in the realm of the
Legislature the issue whether the common law rule that there is no duty to wear
seat belts should be overturned with a common law duty to do so, the failure of
which would subject a plaintiff to the application of the comparative negligence
doctrine. Thomas v. Henson, 102 N.M. 326, 327, 695 P .2d 476, 477 (1985);
Norwest Bank New Mexico, N.A. v. Chrysler Corp ., 1999-NMCA-070, ¶¶ 25, 28, 127
N.M. 397, 981 P.2d 1215.
The majority opinion finds its primary legitimacy in
language quoted from Trujillo, 110 N.M. at 624, 798 P.2d at 574. Majority
Opinion ¶ 16. The language says our fault system of recovery serves certain
important social functions. Trujillo was a car accident case in which the
plaintiff attacked the Tort Claims Act liability cap. Id. at 623, 798 P.2d at
573. The Trujillo Court's museful statement about the tort system was in the
context of the Legislature-imposed cap on damages and the level of scrutiny to
employ in determining the constitutionality of the legislation. Id. at 624- 25,
798 P.2d at 574-75. Interestingly, the Trujillo Court mentions "[t]he debate
over the policy question of whether the tort system is the best mechanism for
performing the functions currently allocated to it," and stated "[i]t is
entirely appropriate that policy choices flowing from such debate take place in
the legislative sphere." Id. Trujillo, its context, and its language quoted by
the majority, should not instruct the outcome here. Words expressed in one
context grafted for use as the bedrock rationale in a completely different
context requires a more reasoned application than that found in the majority
opinion. Trujillo 's language does not provide a basis for the majority's
holding.
Absent violation of a public policy set by the Legislature
or the existence of a recognized exception, the enforceability of a release
ought to be measured on a case-by-case basis considering the circumstances of
the case as a whole. Courts should examine whether a release contains clearly
expressed, conspicuous language by which the recreation seeker (1) will
understand the risks of injury or death; (2) will understand that he is
releasing and giving up the right to sue the operator for damages for personal
injuries received as a result of the operator's and its employee's negligence in
providing the recreational activity, including faulty advice or instruction,
improperly maintained or secured equipment, and dangerous premises; (3) is
unequivocally told that by signing the release he nevertheless agrees to assume
the risk of harm and the financial cost accompanying the harm and agrees not to
sue or otherwise look to the operator for any type of damages, including medical
expenses and economic damages such as lost wages, as well as damages for pain
and suffering; and (4) is unequivocally told he should not and cannot rely on or
expect any liability insurance to cover injuries that he may suffer due to the
operator's negligence. These requirements constitute fair notice and fair play.
At the same time, releases are not favored and courts
should strictly construe releases against the party seeking to enforce them.
See, e.g., Bothell v. Two Point Acres, Inc., 965 P.2d 47, 51 (Ariz.Ct.App.1998);
Swartzentruber, 690 N.E.2d at 945 (holding releases "are not per se void as
against public policy," but "are not particularly favored in the law" and are to
be strictly construed). This is particularly true in examining the legal
validity of a release. The traditional, longstanding contract concepts of
unconscionability, adhesion, oppression or coercion, misrepresentation, fair
notice, and violation of public policy should continue to play an important role
in that scrutiny. Included, too, should be appropriate concerns about the
opportunity given to the recreation seeker to read the release and discuss the
release and any safety concerns with the operator; the clarity of the scope of
the release; the extent of the notice of the physical and legal risks the patron
is assuming; and the reasonable and objective expectation from reading the
release that the operator is under no obligation to exercise ordinary care in
regard to any aspect of the activity. In considering the circumstances, the
factors such as those in Tunkl, which are set out in Lynch, can be considered.
See Lynch, 97 N.M. at 558-59, 627 P.2d at 1251-52.
Fair and adequate notice and warning by the operator must
go hand in hand with the recreation seeker's assumption of risk. Both ends must
be examined: What and how clearly the operator tells the recreation seeker about
physical and legal risks and whether that goes as far as it should, and the
extent to which the recreation seeker has a reasonable opportunity to read the
release and make an informed and unequivocally expressed decision to assume such
risks.
Courts will forever be tested when someone receives a
devastating injury, and perhaps by its holding the majority hopes to avoid
having to face each such test. However, the general rule, properly defined and
applied, permits a reasonable balance of risk assumption and tort/fault
interests.
VI. The Statutory Construction
I cannot join in the majority's engagement in statutory
construction to resolve what it sees as an "anomolous situation" relating to
proximate cause, and as a lack of clarity in the meaning of "faulty condition,"
in the Equine Liability Act. See Majority Opinion ¶¶ 23-27. These statutory
construction issues were not raised below or on appeal. Furthermore, the
analyses and holdings are not essential to the majority's affirmance of the
district court's denial of Defendants' motion for summary judgment.
The district court held as a matter of law that Plaintiff's
injury did not occur as a result of equine behavior. The court therefore denied
Defendants' motion for summary judgment under the Equine Liability Act.
Defendants sought Rule 12-201(C) review in this Court on the ground that none of
the exceptions to immunity applied because the undisputed evidence showed the
injury resulted from equine behavior only. Plaintiff responded, arguing that
material issues of fact existed as to Defendants' negligence, and also that
Defendants failed to provide sufficient evidence for a jury determination of
whether the injury resulted from equine behavior.
Contrary to the district court's determination that the
injury did not result from equine behavior, and also contrary to Defendants'
contention that the injury resulted solely from equine behavior, the majority
has determined that an issue of fact exists regarding whether the injury
resulted from equine behavior. Majority Opinion ¶ 28. This ruling, and the
ruling that an issue of fact exists as to operator negligence, are enough to
affirm the district court's denial of Defendants' motion for summary judgment.
The statutory construction issues of proximate cause and
faulty condition not having been raised or addressed below or on appeal, and the
issues not being necessary for any of the majority's holdings on appeal, the
issues should lay at rest until the circumstances arise for district court
adjudication and presentation of the specific issues on appeal to this Court.
VII. The Instructions
Because the issues that are the subject matter of the jury
instructions the majority suggests on remand, Majority Opinion ¶ 30, are those
not raised or addressed below or on appeal, I respectfully think we should,
under the circumstances, leave the first draft of the instructions to the
parties and the district court.
VIII. The Issue of the Equine Liability Act as Expressing
Public Policy
The majority does pause to say that the Equine Liability
Act does not express a public policy making the release in this case
unenforceable. I agree with that statement, and I would affirm the district
court's summary judgment. Of course, the majority's ultimate holding makes this
issue irrelevant. That is why the majority understandably devotes but a
paragraph to rationale, Majority Opinion ¶ 12, and why I devote only one
paragraph to my agreement with the majority on the issue.
IX. Conclusion
For the reasons set forth above, I respectfully dissent.
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