Zuckerman v. Coastal Camps, Inc.Zuckerman v. Coastal Camps, Inc.
- Reporters:
- ,
- Before:
- John A. Woodcock Jr.
On July 30, 2006, during a horseback riding lesson at Camp Laurel in Mount Vernon, Maine, twelve-year old Samantha Zuckerman sustained injuries when she fell from Tinkerbell, the pony she was riding. Claiming negligence, Samantha, through her mother, Roberta Zuckerman, sued Coastal Camps, Inc., doing business as Camp Laurel, seeking damages for personal injuries. Samantha alleges that her instructors improperly saddled Tinkerbell and as a result, her saddle slipped causing her to fall. Camp Laurel moved for summary judgment. Def.‘s Motion for Summary J. (Docket # 26) (Def.‘s Mot.). On March 1, 2010, the United States Magistrate Judge filed her Recommended Decision on Camp Laurel‘s motion recommending that the Court deny Camp Laurel‘s motion. Recommended Decision on Motion for Summary Judgment (Docket # 38) (Rec. Dec.). Camp Laurel objected and Samantha responded. Def.‘s Obj. to Report of Recommendation (Docket # 39) (Def.‘s Obj.); Pl.‘s Resp. to Def.‘s Obj. to the Report and Rec. Dec. on Def.‘s Mot. for Summary J. with Incorporated Mem. of Law (Docket # 40) (Pl.‘s Resp.). After review and consideration of the Recommended Decision, together with
I. STATEMENT OF FACTS
At the time of the July 30, 2006, accident, Samantha was learning to canter and Sarah Balmer, one of Camp Laurel‘s riding instructors, was leading Tinkerbell around an enclosed ring on a lunge line. Def.‘s Statement of Material Facts ¶¶ 14, 15 (Docket # 26) (Def.‘s SMF). Pamela Payson, the head of Camp Laurel‘s equestrian program, was present and saw Samantha fall. Id. ¶ 15.
Throughout the summer and at the time of the accident, Camp Laurel used fleece-lined girths on Tinkerbell and the other horses. Pl.‘s Statement of Additional Material Facts ¶ 5 (Docket # 33) (Pl.‘s SAMF). The parties provided competing expert opinions on whether saddles with fleece-lined girths are more prone to slip. Pl.‘s SAMF ¶ 6; Pl.‘s Response to Def.‘s Mot. for Summary J. at 12-13 (Docket # 30) (Pl.‘s Resp. to Def.‘s Mot.); Reply Mem. of Law in Support of Def.‘s Mot. for Summary J. at 6 (Docket # 36) (Def.‘s Reply in Support of Def.‘s Mot.).
The parties also dispute whether Camp Laurel followed proper protocol when saddling Tinkerbell on July 30, 2006. Ms. Payson testified that after the saddle is on a horse, “you put the girth on snug enough so your saddle is not going to shift, but not - - you don‘t tighten it up all the way.” Pl.‘s SAMF ¶ 18. The horse is led from the stables to the instruction ring. Before the rider mounts the horse, the girth is fully tightened. Id. ¶ 19. Ms. Payson stated that after the rider mounts the horse, the instructor checks the girth a third time “because sometimes depending on what you have for pads on the horse or whatever, [if you] have a horse [with] a
Tinkerbell was equipped with a crupper1 to keep the saddle from sliding forward. Ms. Payson used a crupper with Tinkerbell because Tinkerbell was a round pony and “had low withers, [and] she just wanted her saddle not to ride forward at all.” Id. ¶¶ 10, 12.
Samantha described her fall from Tinkerbell:
I was cantering in a circle on a lead rope . . . and I started to feel the saddle slide towards the left, and I lost my balance; and my foot somehow . . . got caught in the stirrup, but when I hit the ground I – I mean, my foot came out from the stirrup, and I hit my head while falling.
Id. ¶ 34. Samantha testified that she “looked up” and “saw the saddle, not on top of the horse. . . . It was either kind of on the side or underneath.” Id. ¶ 38. She stated that it was not possible that she “imagined” seeing the saddle upside down. Id. “I believe what I saw because I saw it upside down.” Id.
Samantha‘s recollection is contradicted by Ms. Payson and Ms. Balmer; each testified that Samantha fell off Tinkerbell because she lost her balance. Id. ¶¶ 39-41; Def.‘s SMF ¶ 18. Ms. Payson testified that “although she does not remember the saddle sliding off to the side of
In her Complaint, Samantha alleges that “[d]uring [her] riding lesson, Tinkerbell‘s saddle slipped, causing [her] to fall from the horse.” First Amend. Compl. and Demand for Jury Trial ¶ 15 (Docket # 16) (Amend. Compl.) “Following the accident, Tinkerbell‘s saddle was observed to have slipped from its proper position on top of the horse.” Id. ¶ 16. She alleges that Camp Laurel breached its duty of care to Samantha “by failing to ensure that Tinkerbell was properly saddled for [Samantha‘s] riding lesson and by otherwise failing to ensure that its riding program was conducted in a manner that reasonably ensure [Samantha‘s] safety.” Id. ¶ 20.
Camp Laurel moved for summary judgment on the ground that it is immune from liability under Maine Equine Activities Act (Act),
Camp Laurel objects to the Magistrate Judge‘s recommended decision on two grounds. It argues that the Magistrate Judge erred in finding that Camp Laurel bears the burden of proof under the Act and in finding a genuine issue of material fact with respect to the “faulty” tack exception. Def.‘s Obj. at 5-9. In addition, Camp Laurel argues that the Magistrate Judge should have stricken the statement of facts which include the opinion of Ida Anderson, Samantha‘s expert, and erred by relying on Ms. Anderson‘s speculative statements. Def.‘s Obj. at 1-5.
II. DISCUSSION
A. Ms. Anderson‘s Statements
Camp Laurel sought to strike three statements of material facts reflecting the expert opinions of Ida Anderson:
6. These fuzzy girths, although comfortable for the animals, are more prone to slippage. The fleece-lined girth Tinkerbell was wearing on July 30, 2006, may have allowed the saddle to slip from its proper position. Declaration of Ida Anderson (“Anderson Dec“), ¶ 9.
14. Given the fact that due to Tinkerbell‘s build, the Camp had experienced difficulty in keeping Tinkerbell‘s saddle from slipping forward throughout the summer of 2006, it is possible that on July 30, 2006, the saddle slipped out of position as a result of Tinkerbell‘s round belly and/or her low withers, notwithstanding the presence of the crupper. Anderson Dec. at ¶ 11.
15. If Tinkerbell‘s saddle did slip forward it would no longer be secure, as the saddle would no longer cup the withers which hold it in place. Once a saddle slips forward and it no longer cups the withers, it is nearly inevitable that it will slip sideways. Any lack of saddle stability may cause a rider to fall from a horse or pony. Anderson Dec. at ¶ 11.
See Def.‘s Obj. at 1 n.1 (quoting Pl.‘s SAMF ¶¶ 6, 14, 15) (emphasis added by Defendant). Camp Laurel contends these statements are “speculative and wholly without evidentiary support,” and are “not a statement of fact, but rather speculation and conjecture.” Def.‘s Reply SMF ¶¶ 6, 14, 15. Samantha did not respond to these objections. Although the Magistrate Judge did not
In its objection, Camp Laurel argues that Samantha cannot “create a genuine issue of material fact based on three unsupported assumptions bootstrapped into an ‘it is possible’ hypothesis set forth by Ms. Anderson.” Def.‘s Obj. at 3. “[T]he requisite proof of a causal link between Camp Laurel‘s alleged negligence and plaintiff‘s injuries cannot be established with inherently speculative opinion testimony.” Id. at 4.
Samantha responds that Ms. Anderson is “an expert witness whose qualifications have not been challenged.” Pl.‘s Resp. at 2. She “did exactly what experts are supposed to do – she reviewed the available facts and offered expert opinion testimony regarding the likely causes of Samantha‘s fall. . . .
The Court overrules Camp Laurel‘s objection. Ms. Anderson was not present at the scene of the accident, and is not in a position to say precisely what happened. Her opinion is
When the “adequacy of the foundation for the expert testimony is at issue, the law favors vigorous cross-examination over exclusion.” Carmichael v. Verso Paper, LLC, 679 F. Supp. 2d 109, 119 (D. Me. 2010). “If the factual underpinnings of [the expert‘s] opinions [are] in fact weak, that [is] a matter affecting the weight and credibility of their testimony.” Payton v. Abbott Labs, 780 F.2d 147, 156 (1st Cir. 1985); Brown v. Wal-Mart Stores, Inc., 402 F. Supp. 2d 303, 308 (D. Me. 2005) (“As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination. It is only if an expert‘s opinion is so fundamentally unsupported that it can offer no assistance to the jury [that] such testimony [must] be excluded on foundational grounds.“) (citations and internal quotation marks omitted)). Furthermore, “absolute certainty is not a prerequisite to admissibility of an expert‘s testimony.” Small v. GMC, 2006 U.S. Dist. LEXIS 83717, at *33 (D. Me. Nov. 15, 2006); see Dodge v. Cotter Corp., 328 F.3d 1212, 1222 (10th Cir. 2003) (stating that while expert opinions “must be based on facts which enable [the expert] to express a reasonably accurate conclusion as opposed to conjecture or speculation, . . . absolute certainty is not required“) (citation omitted)).
As a qualified equine expert familiar with fleece-lined girths and saddle cinching, Ms. Anderson‘s opinion goes beyond the type of speculation prohibited at the summary judgment stage. Small at *33-34 (citing United States v. Monteiro, 407 F. Supp. 2d 351, 372 (D. Mass. 2006) (stating “[t]he lack of absolute certainty on the part of the expert does not render her opinion unreliable under Daubert)).
B. Maine Equine Activities Statute
Camp Laurel disputes two of the Magistrate Judge‘s conclusions with respect to the Maine Equine Activities Act: the first concerns the burden of proof; the second the applicability of an exception to the Act.
As the Magistrate Judge noted, no Maine decision discusses the Maine Equine Activities Act in its current form, and the case law that does exist discusses the earlier version of the act in a limited manner. Rec. Dec. at 14-15 (citing Gerrish v. Cool, Civil Action Docket No. CV-94-102, 1995 Me. Super. LEXIS 101 (Me. Sup. Ct. Mar. 14, 1995) (concluding that the Act does not impose strict liability) and Emery v. Wildwood Mgmt., 230 F. Supp. 2d 116 (D. Me. 2002) (imposing a negligence standard)). There does not appear to be any legislative history to suggest that the current version of the Maine Equine Activities Act which was amended in 1999 “was meant to repudiate any possibility of a simple negligence action arising in the context of equine activities.” Rec. Dec. at 15.
Absent relevant case law and legislative history, the Magistrate Judge turned to a similarly structured statute, Maine‘s Ski Liability Statute,
Camp Laurel argues that the Magistrate Judge erred by placing the burden on Camp Laurel to “show that the plaintiff‘s alleged injuries resulted from an ‘inherent risk of equine activities‘” and by concluding that “whether or not Camp Laurel carries this burden is an issue of fact for the jury.” Def.‘s Obj. at 5. The Court agrees with the Magistrate Judge. Assumption of risk is an affirmative defense and generally the party raising an affirmative defense has the burden of proof on the defense. Merrill, ¶ 12, 745 A.2d at 384; Hansen v. Sunday River Skiway Corp., 1999 ME 45, ¶ 11, n.2, 736 A.2d 220, 223 (stating that “the party opposing a claim, usually a defendant, has the burden of proof on an issue characterized as an affirmative defense or other issues to avoid or reduce liability. See e.g., Lovely v. Allstate Ins. Co., 658 A.2d 1091, 1094 (Me. 1995) (Lipez, J., concurring) (damage reduction); Minott v. F.W. Cunningham & Sons, 413 A.2d 1325, 1331 (Me. 1980) (comparative fault); Isaacson v. Husson College, 297 A.2d 98, 106-07 (Me. 1972) (comparative fault); Corbett v. Curtis, 225 A.2d 402, 409 (Me. 1967) (assumption of the risk)“). The Magistrate Judge did not err by assigning Camp Laurel the burden of proof on its assumption of risk defense.
Camp Laurel also argues that it was wrong for the Magistrate Judge to compare Maine‘s Equine Activities Act to the repealed Maine skiing statute because the two are “markedly dissimilar.” Def.‘s Obj. at 5. In particular, former
Camp Laurel‘s examples all concern a sponsor or professional acting negligently and through this negligence causing a horse to act in an inherently risky manner—kicking, running, biting, colliding or bolting. In those examples, the sponsor would likely be immune under the Act. The Act specifies that “[e]ach participant . . . in an equine activity expressly assume the risk and legal responsibility for any . . . damages arising from personal injury . . . that results from the inherent risk of equine activities.”
[T]hose dangers and conditions that are an integral part of equine activities, including, but not limited to:
- The propensity of an equine to behave in ways that may result in damages to property or injury, harm or death to persons on or around the equine. Such equine behavior includes, but is not limited to, bucking, shying, kicking, running, biting, stumbling, rearing, falling and stepping on;
- The unpredictability of an equine‘s reaction to such things as sounds, sudden movements and unfamiliar objects, persons or other animals;
- Certain hazards such as surface and subsurface conditions;
Collisions with other equines or objects; and - Unpredictable or erratic actions by others relating to equine behavior.
Unlike Camp Laurel‘s hypothetical situations where negligence contributes to the inherent risk, the negligence in this case is tied to an exception to liability. Although the Act is silent as to simple negligence as an inherent risk, the statute explicitly sets forth several specific exceptions to the liability shield based on negligent actions by the equine professional or organization. Thus, even if the Court were to agree that a slipping saddle is a risk inherent to horseback riding, an equine professional may still be liable if the equine activity sponsor, equine professional or person:
- Provided the equipment or tack, and knew or should have known that the equipment or tack was faulty, and the equipment or tack was faulty to the extent that it did cause the injury;
- Owns, leases, rents or otherwise is in lawful possession and control of the land or facilities upon which the participant sustained injuries because of a dangerous latent condition that was known or should have been known to the equine activity sponsor, equine professional or person;
Commits an act or omission that constitutes reckless disregard for the safety of others and that act or omission caused the injury. For the purposes of this section, “reckless” has the same meaning as “recklessly,” defined in Title 17-A section 35, subsection 3, paragraph A; or - Intentionally injures the participant.
Samantha does not assert that Camp Laurel negligently caused Tinkerbell to behave like a horse; she claims that Camp Laurel should be held responsible under one of the exceptions enumerated by the Act, specifically whether Camp Laurel exposed itself to liability by providing faulty tack or equipment.5 Camp Laurel‘s attempt to define Samantha‘s case as fitting the general rule against liability for risks inherent to equine activities fails because her claim may factually fit within one of the exceptions.6
2. Faulty Equipment or Tack Exception
Maine‘s Equine Activities Act does not protect an equine activity sponsor from liability when the equine activity sponsor
[p]rovided the equipment or tack, or knew or should have known that the equipment or tack was faulty to the extent that it did cause the injury.
Camp Laurel argues that there is not a “scintilla of evidence that the tack was indeed ‘faulty.‘” Def.‘s Obj. at 8. Specifically, Camp Laurel argues that faulty tack means “riding equipment (saddles, girths, bridles, stirrups, etc.) that had cracked, broke, or frayed.” Id. Camp Laurel contends that the term “faulty tack” does not include an “improperly tightened girth” or an “inappropriate pony” or “faulty horse.” Def.‘s Obj. at 7, 8. With regard to the fleece-lined girth, Camp Laurel asserts that Samantha‘s expert acknowledges that “not a single equestrian industry publication argues against using such a girth” and provides its own experts who confirm that fleece-lined girths are “no more prone to slipping that leather girths.” Def.‘s Obj. at 8.
The Act does not define “equipment or tack” that is “faulty” and there is no Maine decision interpreting this exception. It is evident that this provision applies to equipment that is old, worn, dry, damaged, or otherwise defective. See Day v. Snowmass Stables, Inc., 810 F. Supp. 289 (D. Colo. 1993) (broken neck yoke ring); Easterling v. English Point Riding Sables, Civil Action No. 93-2050 Section “N“, 1994 U.S. Dist. LEXIS 3470 (E.D. La. 1994) (broken martingale). Although Samantha highlights that the saddles used by Camp Laurel were “Ford Escort” quality, she has not alleged that her fall was the result of an old, defective, or low quality saddle. Def.‘s SMF ¶ 19, Pl.‘s Opp‘n to Def.‘s Statement of Material Fact ¶ 19 (Docket # 31) (Pl.‘s Opp‘n Def.‘s SMF). Instead she asserts that Tinkerbell was not “properly saddled” and that her fall was “most likely due to Ms. Balmer‘s negligence in failing to properly tighten the
Urging a more expansive definition of faulty tack and equipment, Samantha cites two decisions in which the definition of faulty tack was extended to include the improper installation or positioning of equipment or tack which is otherwise in sound condition. See Berlangieri v. Running Elk Corporation, 48 P.3d 70, 78 (N.M. Ct. App. 2002) (holding “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“); Hubner v. Spring Valley Equestrian Center, 975 A.2d 992, 997 (N.J. Super. Ct. App. Div. 2009) (expressing “no doubt that an owner who knows that training equipment is not properly installed or is inappropriate for the purpose it is used may be found to have knowingly provided equipment that is faulty within the meaning of [the New Jersey Equine Activities Liabilities Act]“).
The Court agrees that the word “faulty” is sufficiently ambiguous to include the use of a non-defective, but inappropriate piece of equipment. See Teles v. Big Rock Stables, L.P., 419 F. Supp. 2d 1003, 1009 (E.D. Tenn. 2006) (invoking the faulty tack exception when non-defective stirrups are adjusted to an improper length). The statute does not define “faulty,” but the dictionary contains two relevant definitions: “marked by a fault: having a fault, blemish, or defect” and “not fit for the use or result intended.” Webster‘s Third New International Dictionary 829 (2002). Camp Laurel relies on the first definition; Samantha on the second. Absent a suggestion that the Maine Legislature preferred one definition over the other, the Court accepts both. From the Court‘s perspective, if Ms. Balmer used a girth that was wrong for
The Court agrees with the Magistrate Judge that the summary judgment record raises a genuine issue of material fact concerning a “faulty” tack decision. The Court denies Camp Laurel‘s Motion for Summary Judgment.
III. CONCLUSION
The Court ADOPTS the Magistrate Judge‘s Recommended Decision (Docket # 38) and DENIES Camp Laurel‘s Motion for Summary Judgment (Docket # 26).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
CHIEF UNITED STATES DISTRICT JUDGE
Dated this 4th day of June, 2010
Notes
Each participant has the sole responsibility for knowing the range of that person‘s ability to manage, care for and control a particular equine or perform a particular equine activity. It is the duty of each participant to act within the limits of the participant‘s own ability, to maintain reasonable control of the particular equine at all times while participating in an equine activity, to heed all warnings and to refrain from acting in an manner that may cause of contribute to the injury of any person or damage to property.