Gadd v. Warwick

SECOND DIVISION
BARNES, P. J.,
BOGGS and RICKMAN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
November 16, 2016
In the Court of Appeals of Georgia
A16A1277. GADD v. WARWICK.
BOGGS, Judge.
Joseph Gadd appeals from the trial court’s grant of summary judgment to
Farrell Warwick in this case involving immunity provided by Georgia’s Injuries From
Equine or Llama Activities Act (“the Equine Act”), OCGA § 4-12-1 et seq. Gadd
asserts that genuine issues of material fact exist with regard to the application of two
exceptions to the immunity provided by the Act, that the trial court erred by imposing
a legal requirement of showing dangerous propensity, and that issues of fact exist
with regard to the horse’s dangerous propensity. For the reasons explained below, we
affirm the trial court’s grant of summary judgment to Warwick.
Summary judgment is proper when there is no genuine issue of material fact,
and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We
review a grant or denial of summary judgment de novo and construe the evidence in
the light most favorable to the nonmovant. Home Builders Assn. v. Chatham County,
276 Ga. 243, 245 (1) (577 SE2d 564) (2003). So viewed, the undisputed evidence
shows that 19-year-old Gadd was injured while riding a horse at a summer camp
where he worked “as a camp counselor assigned to work in the equine activities
program.” One of his “basic job duties was to take children on trail rides at the camp.”
On May 30, 2011, the decision was made by the supervisor of the
[c]amp . . . equestrian program to take a staff group trail ride on the
horses. The purpose of the ride was to get the horses accustomed to the
normal routine which would be employed after the children arrived at
the camp and the normal camp activities began . . .
Before [Gadd] went out on the ride taking place at the time of
[his] injury, Warren Manne, the supervisor of the camp’s equestrian
program, assigned each rider to a particular horse. He assigned [Gadd]
to ride the grey horse, which was called “Greg.”
Gadd was injured when the horse jumped over a small stream less than 12
inches wide, rather than stepping over it. Gadd lost his balance somewhat following
the jump, “the horse reared up very high on his hind legs and lost his balance,” Gadd
then fell from the saddle, and the horse landed on top of him.
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Greg, as well as all of the other horses used by the camp, were provided by
defendant Warwick pursuant to a contract between Warwick and the camp. Warwick
leased horses and equipment to the camp each summer beginning in 2004. The lease
agreement required Warwick to provide 32 horses “appropriate for children ages 7-
16” and also required him to replace “any horses deemed inappropriate (i. e. too wild,
unhealthy) by [the camp] within 48 hours.” (Emphasis supplied.)
Gadd subsequently filed a complaint against Warwick alleging negligence and
wilful and wanton disregard for the safety of persons riding the horse he provided to
the camp. Following discovery, Warwick moved for summary judgment in his favor
based upon the immunity provided by the Equine Act. After the trial court’s grant of
Warwick’s motion, Gadd filed a timely appeal with this court.
1. Gadd claims the trial court erred because genuine issues of material fact exist
with regard to the application of exceptions to the immunity provided by the Equine
Act. We disagree.
In the preamble to the Equine Act, the General Assembly made the following
express legislative findings:
The General Assembly recognizes that persons who participate in equine
activities or llama activities may incur injuries as a result of the risks
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involved in such activities. The General Assembly also finds that the
state and its citizens derive numerous economic and personal benefits
from such activities. The General Assembly finds, determines, and
declares that this chapter is necessary for the immediate preservation of
the public peace, health, and safety. It is, therefore, the intent of the
General Assembly to encourage equine activities and llama activities by
limiting the civil liability of those involved in such activities.
OCGA § 4-12-1. In accordance with these findings, we have held that the General
Assembly intended to create broad immunity “with narrowly defined exceptions.”
(Citations and footnote omitted.) Holcomb v. Long, 329 Ga. App. 515, 520 (1) (765
SE2d 687) (2014).
In this case, Gadd’s injuries clearly resulted from the “inherent risks of equine
activities” for which the Equine Act provides immunity. See OCGA § 4-12-2 (7) (A)
(“The propensity of the animal to behave in ways that may result in injury, harm, or
death to persons on or around them.”); OCGA § 4-12-2 (7) (B) (“The unpredictability
of the animal’s reaction to such things as sounds, sudden movement, and unfamiliar
objects, persons, or other animals.”); OCGA § 4-12-3 (a) (providing immunity “for
an injury to or death of a participant resulting from the inherent risks of equine
activities”). We therefore must determine whether one of the exceptions of the Equine
Act applies.
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(a) A person loses immunity under OCGA § 4-12-3 (b) (1) (B) only if he
“[p]rovided the animal and failed to make reasonable and prudent efforts to determine
the ability of the participant to engage safely in the equine activity and to safely
manage the particular animal based on the participant’s representations of his or her
ability.” Id. It is clear from the plain language of this exception that it contemplates
that the person sought to be held liable provided a particular horse to a particular
participant with a corresponding opportunity to make the inquiries enumerated in the
statute. Warwick provided the horse to the camp, not Gadd, and the supervisor of the
camp’s equestrian program, not Warwick, assigned Gadd to ride the particular horse
on the day he was injured. Accordingly, this exception does not apply to the particular
facts before us.
(b) The record also fails to create a genuine issue of material fact regarding the
exception in OCGA § 4-12-3 (b) (4), which allows liability if a person “[c]ommits an
act or omission that constitutes willful or wanton disregard for the safety of the
participant, and that act or omission caused the injury.”
We have previously outlined the following definitions of willful and wanton
in the context of the Equine Act:
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Wil[l]ful misconduct is based on an actual intention to do harm or inflict
injury; wanton conduct is that which is so reckless or so charged with
indifference to the consequences as to be the equivalent in spirit to
actual intent. Wil[l]ful misconduct, or wil[l]ful failure or refusal to
perform a duty required by statute, is more than negligence or even
gross negligence; it involves conduct of a criminal or quasi-criminal
nature, the intentional doing of something, either with the knowledge
that it is likely to result in serious injury, or with the wanton and
reckless disregard of its probable consequences.
(Citations and punctuation omitted.) Adams v. Hare, 244 Ga. App. 605, 609 (2) (b)
(536 SE2d 284) (2000).
The record shows that the horse had been leased to the camp by Warwick the
two previous summers, and there is no evidence showing any previous issues or
incidents with him.1 The supervisor of the camp’s equestrian program testified that
it was “very likely” that the horse had been on the same trail where Gadd was injured
in previous summers because it was a trail commonly used throughout the summer
1
A camp counselor’s testimony that she heard a walkie talkie transmission
stating that the same horse bucked a child off the summer before was inadmissible
hearsay. See Savage v. KGE Assocs., 260 Ga. App. 770, 779 (2) (c) (580 SE2d 591)
(2003); Seed v. Smith & Woods Mgmt. Corp., 242 Ga. App. 395, 396 (1) (530 SE2d
29) (2000) (“an alleged statement by an unidentified witness is hearsay and
inadmissible”). Additionally, there is no evidence that this alleged incident was
reported to Warwick.
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at the camp. There is no evidence of previous incidents with horses at the camp on
this portion of the trail. The supervisor also testified that the horse would have been
ridden in the arena before it was taken out on the trail ride which resulted in Gadd’s
injury. He described Gadd as having “good experience and he was a strong rider.”
The expert testimony relied upon by appellant to show a willful or wanton “act
or omission” on the part of Warwick is also insufficient to create a genuine issue with
regard to the application of this exception. The experts opined that the horse’s age,2
pedigree,3 training,4 and conditioning5 before arriving at camp did not fulfil the
contractual requirement of providing horses suitable for beginner riders and children.
While these acts and omissions evidence may create issues of fact with regard to
negligence, they do not rise to the level of “wanton and willful” conduct with regard
2
The horse was five years old.
3
The horse was the son of a barrel racing horse and great-great-grandson of an
“athletic” horse with a reputation of being “a pretty tough horse to ride.”
4
The horse acted “fresh” and was shaking his head at the start of the trail ride.
An expert watched a video of the horse made for the purpose of selling him at an
unknown point after the incident and opined that he “was obviously very green. Its
trot was not very good. He had his head stuck up in the air. The canter that the horse
had was certainly all sprawled out.”
5
Gadd’s experts also testified that the horse was inadequately conditioned or
prepared for trial ride use before being delivered to the camp.
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to a horse ridden by a 19-year-old camp counselor with undisputed riding experience,
particularly when there was no admissible evidence of previous incidents with the
horse the two previous summers. See Holcomb, supra, 329 Ga. App. at 521 (2)
(evidence showed negligence “at most,” not willful or wanton disregard for safety of
participant under Section 4-12-3 (b) (3)); Adams, supra, 244 Ga. App. at 608-609 (2)
(b) (evidence fell short of showing wilful and wanton disregard for safety where no
evidence that defendant knew horse had intentionally kicked a person before).
2. Gadd’s remaining enumerations of error are rendered moot by our holding
in Division 1.
Judgment affirmed. Barnes, P. J., and Rickman, J., concur.
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