Friedli v. Kerr
Tennessee Court of Appeals
___ S.W.3d ___, 2001 WL 177184
February 23, 2001
Summary of Opinion
Plaintiffs Friedli were injured when the horse pulling defendant Kerr’s
carriage, in which they were paying passengers, spooked and ran, overturning the
carriage. The trial court held that the defendant was not entitled to the
protection of the Tennessee equine activity statute and that he is held to the
higher standard of care to which an operator of a common carrier or an amusement
ride is held.
The Court of Appeals agreed with the trial court that the defendant was not
entitled to protection of the equine activity statute, but disagreed with the
trial court on the standard of care. Defendant’s carriage business is neither
a common carrier nor an amusement ride as defined by Tennessee law. Therefore,
defendant owed only an ordinary duty of care to the plaintiffs. The Court of
Appeals sent the case back to the trial court for trial.
Text of Opinion
This appeal involves two passengers in a horse-drawn carriage who were
injured after the driver lost control of the horse on the streets of downtown
Nashville. The passengers filed a negligence action in the Circuit Court for
Davidson County against the owner of the carriage business and the driver of the
carriage. They asserted that the carriage business owed them the same heightened
duty of care that common carriers and amusement ride operators owe to their
passengers. The owner of the carriage business responded that he was immune from
suit under Tennessee's equine liability statutes. Following a hearing on the
parties' respective motions for partial summary judgment, the trial court held
that the carriage business was not immune from suit and that it owed its
passengers the same heightened duty of care expected of common carriers and
operators of amusement rides. The owner of the carriage business sought and
received the trial court's and this court's permission to pursue an
interlocutory appeal. We have determined that the trial court correctly decided
that the carriage business was not immune from suit under Tennessee equine
liability statutes but that the trial court erred by holding that the carriage
business owed the same heightened duty to its passengers that common carriers
and amusement ride operators owe to their passengers.
On the evening of December 13, 1996, Judy and David Friedli celebrated their
wedding anniversary by dining with two friends at the Wildhorse Saloon on Second
Avenue in Nashville. After dinner, the Friedlis and their friends decided to
tour downtown Nashville in a horse-drawn carriage. They chose a carriage owned
by Henry F. Kerr who was doing business as Nashville Carriage Service II.
Christopher Edwards was at the reins, and the carriage was being drawn by a
horse named Talon that Mr. Kerr had purchased in July 1996.
The passengers boarded the carriage in front of the Hard Rock Cafe at the
corner of Broadway and Second Avenue. During the carriage ride, a noise sounding
like a loud "pop" or "crack" frightened Talon. He lunged
forward, broke his singletree, [FN1] and jumped out of the carriage's shafts.
Talon continued to gallop along, pulling the carriage behind him because he was
still attached to the carriage by its corner straps. The noise created by the
carriage shafts dragging along the pavement frightened the horse even more.
Despite Mr. Edwards' best efforts, he was unable to bring Talon under control.
The carriage eventually overturned, spilling its occupants onto the ground. When
the carriage overturned, Talon broke free and continued galloping along his
customary route.
FN1. A singletree is a horizontal crossbar, pivoted at the middle, to
which the traces are fastened, giving freedom of movement to the shoulders
of the horse or other draught-animal.
On December 1, 1997, the Friedlis filed suit in the Circuit Court for
Davidson County seeking damages from Mr. Kerr and Mr. Edwards. They asserted
that the carriage service was a common carrier or an amusement ride and,
therefore, that Mr. Kerr owed them a heightened duty of care. Mr. Kerr responded
that he was entitled to immunity from the Friedlis' claims under Tennessee's
equine liability statutes, Tenn.Code Ann. §§
44-20-101, -105 (1993). Both the Friedlis and Mr. Kerr filed motions for partial
summary judgment. Following a hearing on these motions, the trial court
determined that Mr. Kerr was not entitled to immunity and that Mr. Kerr owed the
Friedlis the same heightened duty of care that common carriers and operators of
amusement rides owed to their passengers. The trial court later granted Mr.
Kerr's application for permission to pursue a Tenn.R.App.P. 9 interlocutory
appeal, and, on May 10, 1999, we granted Mr. Kerr permission to appeal.
I.
IMMUNITY UNDER TENNESSEE'S EQUINE LIABILITY STATUTES
We turn first to Mr. Kerr's affirmative defense based on Tennessee's equine
liability statutes. Mr. Kerr asserts that he is an "equine activity
sponsor" and is, therefore, entitled to the immunity from suit provided in
Tenn.Code Ann. § 44-20-103. Based on the
undisputed evidence regarding Mr. Kerr's business and the circumstances
surrounding the Friedlis' injuries, we have determined, as a matter of law, that
Mr. Kerr cannot claim the benefit of Tenn.Code Ann. §
44-20-103 for three reasons. First, he is not an "equine activity
sponsor." Second, Mr. Kerr's business is not an "equine
activity." Finally, the Friedlis were not "participants" engaging
in an "equine activity" when they were injured.
Mr. Kerr's immunity defense is entirely statutory. Thus, in order to take
advantage of the defense, he must demonstrate that he should be included among
the class of persons that the General Assembly intended to benefit when it
enacted the equine liability statutes. As we consider the equine liability
statutes in light of Mr. Kerr's arguments, we must keep in mind that our role is
to ascertain and to give effect to the General Assembly's intent as reflected in
the statute's language. * * * unless the General Assembly used them in a
specialized or technical sense. Cordis Corp. v. Taylor, 762 S.W.2d 138, 139-40
(Tenn.1988); Hawks v. City of Westmoreland, 960 S.W.2d 10, 16 (Tenn.1997);
United Steelworkers of Am. v. Tennessee Air Pollution Control Bd., 3 S.W.3d 468,
472 (Tenn.Ct.App.1998).
Tennessee's equine liability statutes are the product of a nationwide effort
beginning in the late 1980s to insulate the providers or sponsors of equine
activities from liability. They are the equine industry's response to the
growing amount of litigation arising out of injuries or deaths of persons
participating in equine activities and to the concomitant increases in the cost
of insurance. Terence J. Centner, The New Equine Liability Statutes, 62 Tenn .L.Rev.
997, 1002-05 (1995); The Rise of Equine Activity Liability Acts, 3 Animal L.
201, 214 (1997); The Equine Activity Liability Acts: A Discussion of Those in
Existence and Suggestions for a Model Act, 83 Ky. L.J. 157, 166 (1995).
Legislative debates reveal an alarmingly cavalier attitude about the impact of
the statutes; the statutes themselves reflect the General Assembly's awareness
that "the state and its citizens derive numerous economic and personal
benefits" from equine activities. Tenn.Code Ann. §
44-20-101. Accordingly, despite its awareness of "risks involved in
[equine] activities," the General Assembly deemed it expedient to
"encourage equine activities by limiting the civil liability of those
involved in such activities." Tenn.Code Ann. §
44- 20-101. Thus, from and after July 1, 1992, "equine activity
sponsors," "equine professionals," and others have enjoyed
qualified immunity from suit in Tennessee.
The immunity provision operates in a straightforward manner. With certain
statutory exceptions not relevant to this appeal, Tenn.Code Ann. §
44-20-103 provides that an "equine activity sponsor" or an
"equine professional" shall not be liable for the injury or death of a
"participant" resulting from the inherent risks of "equine
activities." Thus, determining whether a particular person is entitled to
the qualified immunity afforded by Tenn.Code Ann. §
44-20-103 requires answering the following three questions: (1) Is the person
seeking immunity as an "equine activity sponsor" or an "equine
professional"? (2) Was the activity that caused the injury or death an
"equine activity"? and (3) Was the injured person a
"participant" in an equine activity? Immunity under Tenn.Code Ann. §
44-20-103 will not attach unless the answer to each of these questions is yes.
The equine liability statutes undertake to define the operative terms in each
of these questions. With regard to the terms relevant to this appeal, [FN4]
Tenn.Code Ann. § 44-20-102(4) defines an
"equine activity sponsor" as an "individual ... which sponsors,
organizes, or provides the facilities for an equine activity ... and operators,
instructors, and promoters of equine facilities." Tenn.Code Ann. §
44-20-102(3) defines "equine activity" broadly. The definition
contains a listing of specific activities included within the terms "equine
activity." Included among this list are "[r]ides, trips, hunts, or
other equine activities of any type, however informal or impromptu, that are
sponsored by an equine activity sponsor." Tenn.Code Ann. §
44-20-102(3)(E).
FN4. We need not parse the statutory definition of "equine
professional" because Mr. Kerr insists in his brief that he is not
"engaged in such a business."
Tenn.Code Ann. § 44-20-102(7) defines a
"participant" as "any person ... who engages in an equine
activity." Finally, Tenn.Code Ann. § 44-
20-102(1)(A) defines "engages in an equine activity" as "riding,
training, assisting in medical treatment of, driving, or being a passenger upon
an equine, whether mounted or unmounted or any person assisting a participant or
show management." As we understand the definition of
"participant," being a participant requires actually riding on the
equine or, at least, having some control over the equine. Apart from
participants who are "upon" an equine, all the activities included in
the statutory definition of "engages in an equine activity" appear to
require some ability to control the animal. From a policy perspective, coupling
proximity [FN6] and ability to control in the definition of "engages in an
equine activity" is consistent with the principle that it would be unfair
to truncate negligence claims by persons with no ability to protect themselves
from injury. Bothell v. Two Point Acres, Inc., 965 P.2d 47, 53-54
(Ariz.Ct.App.1998).
FN6. Tenn.Code Ann. § 44-20-102(1)(B)
excludes spectators from the scope of "engages in an equine
activity" as long as the spectators are not in an "unauthorized
area" or "in immediate proximity to the equine activity."
There are no Tennessee cases to guide our determination of whether a business
that provides pleasure rides in a horse-drawn carriage on a public street is
entitled to qualified immunity from negligence claims under Tenn.Code Ann. §
44-20-103. [FN7] Moreover, even though approximately forty states have enacted
equine liability statutes, our research has produced no case directly addressing
the issue. Nevertheless, a textual reading of the plain meaning of Tennessee's
equine liability statutes permits only one conclusion. Mr. Kerr is not entitled
to immunity from the Friedlis' negligence claims.
FN7. We have found only one Tennessee case interpreting the Tennessee
Equine Activities Liability Act. In that case, an Eastern Section panel of
this court upheld the trial court's determination that a summer camp, its
riding instructors, and the stable that provided the horses were immune from
a negligence action brought on behalf of a child who was injured while
riding a horse at summer camp. Cave v. Davey Crockett Stables,
No.03A01-9504-CV-00131, 1995 WL 507760, at *1, 4 (Tenn.Ct.App. Aug. 29,
1995) (No Tenn.R.App .P. 11 application filed).
Our conclusion that Mr. Kerr is not entitled to Tenn.Code Ann. §
44-20-103' s qualified immunity rests on three grounds. First, the Friedlis were
not "engag[ing] in an equine activity" and, consequently were not
"participants" as defined in Tenn.Code Ann. §
44-20-102(7). The undisputed facts show that they were only riding as passengers
in the horse-drawn carriage while Mr. Edwards was driving it. Thus, the Friedlis
were not "riding, training, assisting in medical treatment of, driving, or
being a passenger upon an equine, whether mounted or unmounted" [FN8] when
they were injured.
FN8. In this context, the only sensible construction of the words
"mounted or unmounted" in Tenn.Code Ann. §
44-20-102(1)(A) is that they modify the preceding phrase "being a
passenger upon an equine." They cannot reasonably be construed to
create a separate category of activities that constitute engaging in an
equestrian activity.
Second, Mr. Kerr's carriage business was not an "equine activity"
as defined in Tenn.Code Ann. § 44-20-102(3).
Equine activities include "[r]ides, trips, hunts, or other equine
activities of any type, however informal or impromptu, that are sponsored by an
equine activity sponsor." Tenn.Code Ann. §
44-20- 102(3)(E). [FN9] This rather circular [FN10] definition conveys more than
one meaning. Arguably, it could include any activity involving an equine. It
could also be construed less broadly because the General Assembly may not have
intended to grant qualified immunity to a tortfeasor whenever the tortious
activity somehow involves an equine.
FN9. Obviously, Mr. Kerr's carriage business does not involve an equine
show, competition or parade; equine training or teaching; boarding equines;
permitting any person to ride, inspect, or evaluate an equine; or placing or
replacing horseshoes on an equine. Tenn.Code Ann. s 44-20- 102(3)(A)-(D),
(F).
FN10. The term "equine activities" forms part of the definition
of "equine activity."
Because of these two possible constructions of Tenn.Code Ann. §
44-20- 102(3)(E), we turn to other familiar canons of statutory construction.
Legislative history and the legislative debates can on occasion provide insight
into the purpose of a statute. McCoy v. T.T.C. Illinois Inc., 14 S.W.3d 734, 738
(Tenn.2000)Gragg v.. Gragg, 12 S.W.3d 412, 415 (Tenn.2000)McCoy v. T.T.C.
Illinois Inc., 14 S.W.3d 734, 738 (Tenn.2000)Regrettably, reviewing the General
Assembly's discussions regarding these statutes is of no practical assistance.
[FN11]
FN11. The record contains transcripts of the committee and floor debates
regarding the equine liability statutes. These transcripts contain scant
discussion regarding the purpose or scope of these statutes. Instead the
legislators' comments were often jocular in tone or betrayed confusion
regarding the bill's contents or purposes. For example, during the floor
debate of the House of Representatives, Representative Michael Kernell of
Memphis wanted to know "[i]s there any liability if these people are
just horsing around?" During the House Judiciary Committee's
consideration of the bill, Chairman Frank Buck of Dowelltown commented
"you're not exempting the negligent people, but any action of the
horse, as horses be the ones assuming the risk, is that right?" The
bill's sponsor, Representative Tommy Head of Clarksville, responded "[j]ust
a negligent horse, Mr. Chairman." When the Senate initially debated the
bill on the floor, Senator Randy McNally of Oak Ridge inquired whether the
bill had anything "to do with immunity for the hackney ponies or
robotic jockeys...." The bill's sponsor, Sen. Carl Koella of Maryville
replied "[n]o, no, robotic senators, either." Although the
Friedlis assert that this last exchange shows a legislative intent to
exclude horse-drawn carriages from the bill, we cannot in good conscience
take any of the legislators' comments seriously enough to affect our
interpretation of the statutes.
We may also look to other statutory provisions for guidance under the
time-honored rule that statutes relating to the same subject should be construed
in pari materia for the purpose of advancing their common purpose and intent.
Mandela v. Campbell, 978 S.W.2d 531, 534 (Tenn.1998)Carver v. Citizen Utils.
Co., 954 S .W.2d 34, 35 (Tenn.1997)Mandela v. Campbell, 978 S.W.2d 531, 534
(Tenn.1998)the facilities for an equine activity. We recognize that the
definitions of "equine activity" and "equine activity
sponsor" are circular to the extent that the definition of each mentions
the other. [FN12] Nevertheless, reading the statute as a whole we are satisfied
that the General Assembly did not intend the definition of equine activity
sponsor to cover businesses like Mr. Kerr's. Accordingly, we hold that the trial
court correctly determined that Mr. Kerr cannot claim immunity under Tenn.Code
Ann. § 44-20-103 from the Friedlis' negligence
claim.
FN12. As mentioned previously, the definition of equine activities
includes certain events sponsored by an "equine activity sponsor,"
Tenn.Code Ann. § 44-20-102(3)(E), and an
"equine activity sponsor" "sponsors, organizes, or provides
the facilities for an equine activity." Tenn.Code Ann. §
44-20-102(4).
II.
MR. KERR'S STANDARD OF CARE
Mr. Kerr also asserts that the trial court erred by determining that he owes
his customers the same heightened standard of care that common carriers and
operators of amusement rides owe to their passengers. We agree and, therefore,
hold that Mr. Kerr should be held only to the ordinary duty of care.
A.
The existence of a duty owed to the plaintiff by the defendant is a necessary
ingredient in every negligence action. * * * Because the legal concept of common
carriers predates widespread mechanized transport, the original carriers relied
upon animal, oar or wind power. 3 Fowler V. Harper et al., The Law of Torts §
16.14, at 506-07 (2d ed.1986); 2 American Law of Torts §
9:29, at 1181.
Tennessee also has a statutory definition of "common carrier." In a
part of the Code entitled "Jitney [FN13] Service," the terms is
defined, in part, as "[a]ny person operating for hire any public conveyance
propelled by steam, gasoline, electricity, or other motive power, [FN14] for the
purpose of affording a means of street transportation similar to that ordinarily
afforded by street railways (but not operated upon fixed tracks) by
indiscriminately accepting and discharging such persons as may offer themselves
for transportation along the course of operation." Tenn.Code Ann. §
65-19-101 (1993). The statute's definition is somewhat narrower than that of the
common law because it does not include carriers that use non-mechanical power,
such as that of a horse. City of Memphis v. State, 133 Tenn. 83, 93, 179 S.W.
631, 634 (1915). Thus, we do not believe that this statute changes the common
law definition of common carriers where it concerns negligence causes of action.
FN13. A jitney is "[a]n omnibus or other motor vehicle which carries
passengers for a fare, orig. five cents." 8 Oxford English Dictionary
244 (2d ed.1989).
FN14. Motive power is "the power acting upon matter to move
it," or "the mechanical energy (as steam, electricity, air, etc.)
used to drive machinery." 9 Oxford English Dictionary 1132 (2d
ed.1989).
Nevertheless, Mr. Kerr's carriage business in downtown Nashville is not a
common carrier for two reasons. First, his carriages do not transport passengers
from place to place. Rather, they take passengers on pleasure tours of the city.
These tours are generally round-trips that return passengers to the place where
they were originally picked up. Thus, the tours do not transport passengers from
one place to another. Second, Mr. Kerr is not under a common-law or statutory
obligation to transport all persons desiring to ride in one of his carriages. He
may refuse to serve persons seeking carriage rides without penalty because they
are not relying on his carriages to provide them with transportation from place
to place. Accordingly, we have concluded that the trial court should not have
imposed the same heightened duty on Mr. Kerr that the law imposes on common
carriers.
B.
THE APPLICABILITY OF AN AMUSEMENT OPERATOR'S DUTIES
Tennessee courts have held operators of amusement park rides to the same
heightened duty applied to common carriers. These decisions, however, have
invariably involved mechanical amusement rides. * * * We have determined that
there are two reasons why the heightened duty of operators of mechanical
amusement rides should not be imposed on operators of horse-drawn carriages.
First, the conduct of horses, even when properly selected, trained, and handled,
are inherently less controllable than properly maintained mechanical rides.
Second, because of the unpredictability of domesticated animals even in the best
of circumstances, no amount of diligence, skill, and foresight of a person
handling a horse can minimize the risk of harm in the same way that inspection,
maintenance, and repair can reduce the risk of harm to passengers on mechanical
amusement devices. The conduct of domesticated animals is far less predictable
than the operation of properly-maintained machinery. Accordingly, we have
concluded that the trial court erred by holding that Mr. Kerr owed the same
heightened duty to his passengers that operators of amusement rides owe to their
customers.
III.
We affirm the denial of Mr. Kerr's motion for partial summary judgment based
on his claimed Tenn.Code Ann. § 44-20-103
immunity and reverse the partial summary judgment determining that Mr. Kerr
should be held to the same heightened duty expected of common carriers and
operators of amusement rides. We remand the case to the trial court for further
proceedings consistent with this opinion, and we tax the costs of this appeal in
equal proportions to David and Judy Friedli and Henry Frank Kerr and his surety
for which execution, if necessary, may issue.
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