2017-0153, Anthony W. Franciosa, III f/n/f Vaneesa S. Franciosa v. Hidden Pond Farm, Inc. & a.

severely injured in a horseback riding accident. At the time of the accid ent, The material facts are not in dispute. On July 20, 2014, Vaneesa was

sustained in a horseback riding accident. We affirm. defendant s were entitled to immunity from liability for the injuries Vaneesa judgment. The trial court ruled that, pursuant to RSA 508:19 (2010), the Pond Farm, and denying the plaintiff’s cross - motion for partial summary defendant s, Jessica Grace Elliott and Hidden Pond Farm, Inc. a/k/a Hidden (Anderson, J.) granting the motion for summary judgment filed by the friend of Vaneesa S. Franciosa, appeals an or der of the Superior Court BASSETT, J. The plaintiff, Anthony W. Franciosa as father and next

Clara E. Conklin on the brief, and Mr. Burt orally), for the defendant s. Primmer Piper Eggleston & Cramer PC, of Manchester (Gary M. Burt and

and David S. Brown orally), for the plaintiff. Colliander & Brown, P.A., of Portsmouth (John D. Colliander on the brief,

ANTHONY W. FRANCIOSA, III f/n/f VANEESA S. FRANCIOSA

No. 2017 - 0153 Rockingham

address of the court's home page is: http://www.courts.state.nh.us/supreme. available on the Internet by 9:00 a.m. on the morning of their release. The direct by E - mail at the following address: reporter@courts.state.nh. us. Opinions are corrections may be made before the opinion goes to press. Errors may be reported Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well as 2

or sponsor. know n and reasonably not know n by the equine professional conditions not obvious to the equine participant or not (3) Certai n hazards such as surface and subsurface

persons, or other animals. things as sound, sudden movements, and unfamiliar objects, ( p. 2 2) The unpredictability of an equine’s reaction to such

them. result in injury, harm, or death to persons on or around (1) The propensity of an equine to behave in ways that may

including, but not limited to: conditions which are an integral part of equine activities, (f) “I nherent risks of equine activities” means t hose dangers and

. . ..

I. In this section

the statute are as follows: inherent risks of equine activities.” RSA 508:19, II. The per tinent portions of equine activities “for an injury or the death of a participant resulting from the 508:19. Enacted in 1998, RSA 508:19 limits the liability of persons engaged in construed these statutes, see id., t his is our firs t opportunity to interpret RSA Activities, 79 A.L.R. 6th 487 ( p. 2 2012). Although courts in other j urisdictions have Exemptions from Liability for Persons Injured by Equine or Equestrian statutes, see Annotation, Validity, Construction, and Application of Statutory equine activity. See RSA 508:19, II. Notably, more than 25 states have similar scheme in New Hampshire governing the liability of any person engaged in an Before turning to the instant lawsuit, it is useful to review the statutory

Wilma then stepped on her. fell to the ground as she tried to dismount. She was serious ly injur ed when two occasions. On July p. 2 20, a fter riding Wilma for about 30 minutes, Vaneesa ride on Wilma, a horse that Vanees a had ridden without incident on at least not be present at the farm on the 20th, Vaneesa had permission to take a free a lesson for the following day. Elliott texted Vaneesa that, although she wo uld On July 19, the day before the accident, Vaneesa texted Elliott to arrange

present and no one was assigned to supervise Vaneesa. a ride that did not involve a les son. On those occasions, Elliott was not always two years. Approximately once each week, Vaneesa also went on a “free ride” ― been taking w eekly riding lessons from Elliott, an expert equestrian, f or almost she was thirteen years old, had been riding horses for eight years, and had p. 3 3

. . ..

engage safely in the equine activity. prudent efforts to determine the ability of the participant to (b) Provided the equine and failed to make reasonable and

. . ..

activity sponsor, equine professional, or person: any other person engaged in an equine activity, if the equine liability of an equine activity sponsor, an equine professional, or III. Nothing in paragraph II of this section shall prevent or limit

manner which may cause or contribute to the injury of any person. activity, to heed all posted warnings, and to refrain from acting in a particular equine at all times while participating in an equine participant’s own ability, to maintain reasonable control of the shall be the duty of each participant to act within the limits of the particular equine or perform a particular equine activity, and it range of his or her ability to manage, care for, and control a Each participant shall have the sole responsibility for knowing the property which results from participation in an equine activity. legal responsibility for any injury, loss or damage to person or participant in an equine activity expressly assum es the risk of and from any of the inherent risks of equine activities. Each person for injury, loss, damage, or death of a participant resulting against, maintain an action against, or recover from any other section, no participant’s representative shall make any claim equine activities and, except as provided in paragraph III of this the death of a participant resulting from the inherent risks of engaged in an equine activity, shall not be liable for an injury or activity sponsor, an equine professional, or any ot her person II. Except as provided in paragraph III of this section, an equine

measures. professional or sponsor has failed to take any corrective negligence can be reasonably foreseen and the equine acting within the participant’s ability; ex cept where said such as failing to maintain control over the animal or not that may contribute to injury of the participant or others, (5) The potential of a participant to act in a negligent manner

reasonably foreseen as a result of normal equine activities. ( p. 4 4) Collisions with other equines or objects that can be 4

certain limitations, RSA 508:19 immunizes equine professionals from the defendant s ’ motion for summary judgment and found that: (1) subject to On appeal, the plaintiff argues that the trial court erred when it granted

6 p. 4 48 (2015). application of the law to the facts de novo. Conant v. O’Meara, 167 N.H. 644, Bond v. Martineau, 164 N.H. 210, 213 (2012). We review the trial court’s it affects the outcome of the litigation under the applicable substantive law. will affirm the grant of summary judgment. Id. at 129 - 30. A fact is material if fact and if the moving party is entitled to judgment as a mat ter of law, then we (2015). If our review of that evidence discloses no genuine issue of material matter of law. JMJ Properties, LLC v. Town of Auburn, 168 N.H. 127, 129 exists, we determine whether the moving party is entitled to judgment as a its capacity as the nonmoving party and, if no genuine issue of material fact judgment, we consider the evidence in the light most favorable to each party in When reviewing the trial court’s rulings on cross - motions for summary

appeal followed. plaintiff filed a motio n for reconsideration, which the trial court denied. This accident which resulted in Vaneesa’s injuries. S ee RSA 508:19, III(d). The to establish that Elliott’s failure to supervise Vaneesa proximately caused the plaintif f could not establish proximate cause: in other words, the plaintiff failed concluded that the exception in RSA 508:19, III(d) did not apply because the permission to ride Wilma.” S ee RSA 508:19, III(b). The trial court also reasonable and prudent efforts to assess [Vaneesa’s] abilit y before [giving] her apply because “no reasonable juror could find that Elliott failed to make trial court determined that the exception set forth in RSA 508:19, III(b) did not any of the exception s to immunity set forth in RSA 508:19, III. Specifically, t he also concluded that, as a matter of law, Elliott’s conduct did not come within from the “inher ent risks of equine activities.” S ee RSA 508:19. The trial court In its order, the trial court concluded that Vaneesa’s injuries resulted

judgment in favor of the defendants, and denied the plaintiff’s cr oss - motion. statutory exceptions in RSA 508:19, III. The trial court entered summary a jury trial was necessary to resolve issues of material fact regarding the from liability. Alternatively, the plaintiff a rgued that even if the statute applies, risk” of horseback riding, and, therefore, that the defendants are not immune judgment, arguing that Vaneesa’s injuries were not caused by an “inh erent negligence claim. The plaintiff filed a cross - motion for partial summary that the equine immunity provisions set forth in RSA 508:19 bar the plaintiff’s Vaneesa’s injuries. The defendant s moved for summary judgment on the basis The p laintiff filed this action against the defendant s seeking damages for

act or omission caused the injury. wanton disregard for the safety of the participant, and that (d) Commits an act or omission that constitutes willful or p. 5 5

Laws 19 9 8, 24:1.

with other applicable law. engaged in those activities, is liable for that injury in accordance activity, whose negligence proximately causes injury to a person equines, or responsible for the safety of those engaged in equine III. It is the intent of the general court that a person responsible for

the equine activity and obvious to the person injured. inherent in equine activity, insofar as those risks are inherent to fo r damages sustained by another solely as a result of risks II. It is the intent of the general court that no person shall be liable

suffered from those activities. participants for purposes of determining liability for injuries professionals should be distinguished between those of the activities, and so finds that the responsi bilities of sponsors and result in injury, harm, or death to persons involved in equine recognizes that equines are prone to behave in ways that may the economy and culture of the state. The general court also I. The general court finds that equine activities are important to

defendants. The statement of intent provides as follows: the session law, t he plaintiff contends that RSA p. 5 508:19 does not immunize the 50 8:19 applie s to her negligence claim. Focusing on the statement of intent in T he plaintiff first argue s that the trial court erred by finding that RSA

the policy or purpose sought to be advanced by the statutory scheme. Id. discern the legislature’s intent and to interpret statutory language in light of within the context of the statute as a whole. Id. Th is enables us to better Id. Moreover, we do not consider words and phrases in isolation, but rather together to effectuate its overall purpose and avoid an absurd or unjust result. legislature did not see fit to include. Id. We construe all parts of a statute will not consider what the legislature might have said or add language that the meaning. Id. We interpret legislative intent from the statute as written and and, if possible, construe that language according to its plain and ordinary 16 p. 5 5 N.H. 719, 721 (2013). We first look to the language of the statute itself, expressed in the words of a statute considered as a whole. Petition of Carrier, interpretation, we are the final arbiter of the intent of the legislature as Olson v. Town of Grafton, 168 N.H. 563, 566 (2016). In matters of statutory interpretation. We review the trial court’s statutory interpretation de novo. R esolution of the issues in this case requires that we enga ge in statutory

immunity set forth in paragraph III of RSA p. 5 508:19. activity; and (3) Elliott’s conduct does not come within one of the exceptions to negligence suits; (2) Vaneesa’s injuries resulted from an inherent risk of equine p. 6 6

exceptions. in equine activities from negligence suits, with a few narrowly defined legislature clearly expressed an intention to generally immunize those engaged 508:19, III. Thus, strictly construing this statute, we conclude that the that the claims delineated in p aragraph III of the statute survive. See RSA person’s right to bring negligence claims, while at the same time it intended 508:19 demonstrates that the legislature intended to materially limit an injured expressed by the legislature). We disagree. He re, the plain language of RSA 152 N.H. 399, 401 (2005) (if a common law right is abolished, it must be clearly are to be strictly construed); see also Soraghan v. Mt. Cranmore Ski Resort, 735, 739 (2009) (immunity p rovisions barring the common law right to recover for injuries are to be strictly construed. See Martin v. Pat’s Peak, 158 N.H. would violate the principle that statutes that bar common law rights to recover The plaintiff also argues that construing RSA 508:19 to bar this suit

that would render it a virtual nullity). Dep’t of Safety, 1 p. 6 69 N.H. 32, 36 (2016) (we will not construe a statute in a way eviscerate the s tatute and undermine its very purpose. See Wolfgram v. N.H. all negligence claims again st equine professionals survive — we would the statement of intent as broadly as the plaintiff sugg ests — so that virtually narrowly defined circumstances, s ee RSA 508:19, III. If we were to interpret time ensuring the right of a n injured participant to recover under certain from the inherent risks of equine activity, see RSA 508:19, II, while at the same from liability for negligence claims related to a participant’s injuries resulting the statute’s clear purpose: to shield persons involved in an equine activity We conclude that, when taken as a whole, the statement of intent artic ulates of other language set forth in the statement of intent and in the statute itself. be advanced by the statutory scheme”). Rather, it must be read in the context and to interpret statutory language in light of the poli cy or purpose sought to and construe all parts of a statute together to “discern the legislature’s intent (when interpreting statutes, we first look to the language of the statute itself 24:1, III, must not be read in isolation. See Petition of Carrier, 165 N.H. at 721 causes injury to a person engaged in [equine] activities, is liable,” Laws 1998, paragraph III, that an equine professional “whose negligence pro ximately that policy did not over ride other statutory provisions). T he statement in preamble reflected the legislature’s articulation of the policy behind the statute, State v. Kelley, 153 N.H. 481, 48 4 - 8 5 (2006) (recognizing that although the statement of intent in a fashion that would negate explicit statutory language. statement of intent in the text of RSA 508:19, and we will not construe the At the outset, we observe that the legislature chose not to include the

unsupervised, t he immunity statute does not apply. We disagree. inherent risks” of equine activities when s he allowed Vaneesa t o ride Wilma survive,” and that, because Elliot t negligently “created dangers above the usual L egislature that claims of negligent conduct by the equine professional The plainti ff asserts that paragraph III is a “clear expression of the p. 7 7

o wn safety rule” — not to allow minors to ride without adult supervision — the The plaintiff further argues that, because Elliott failed to enforce “her

inapplicable. court, and conclude that the narrow exception in RSA 508:19, I(f)(5) is had begun acting jumpy, as horses can sometimes do.” We agree with the trial the record that [Vaneesa] had previously had d ifficulty controlling horses which during her “free ride,” the trial court observed that “[t]here is no suggestion in although there is some evidence that Vaneesa had difficulty managing Wilma accident, Vaneesa rode Wilma, a horse that she had previously ridden, and, negligence could have been reasonably foreseen by Elliott. On the day of the negligent manner that contributed to her injury, there is no evidence that her fo reseen — which is not the case here. Even assuming that Vaneesa acted in a only when the participant is negligent and that negligence can be reasonably under RSA 508:19, I(f)(5), a failure to take “corrective measures” is relevant places the accident outside of the risks inherent in equine activities, because absence and inability to supervise Vaneesa at the time of Vaneesa’s injury RSA 508:19, I(f)(5). Here, we do not have to decide whether Elliott’s physical

failed to take any corrective measures. reasonably foreseen and the equine professional or sponsor has participant’s ability; except where said neg ligence can be failing to maintain control over the animal or not acting within the may contribute to injury of the participant or others, such as The potential of a participant to act in a negligent manner that

risk of equine activity that trigg ers immunity: RSA 508:19, I(f)(5) identifies the participant’s negligence as an inherent

immunity. risk of injury does not qualify as “an inherent risk of equine activity” triggering therefore, is not available to take contemporaneous “corrective measures,” the equine professional is not physically present at the time of the injury, and, on the example set forth in RSA 508:19, I(f)(5), and argues that, when the have r esulted from the inherent risks of horseback riding. The plaintiff focuses Elliott’s purported negligence caused the accident, Vaneesa’s injury could not inherent risk of equine activities. In essence, the plaint iff argues that because trial court erred when it determined that Van eesa’s injury was caused by an the day of the accident and could not supervise Vaneesa during he r ride, the The plaintiff argues that because Elliott was not present at the farm on

equine activities,” and provides five examples. RSA 50 p. 8 8:19, I(f). activities” as “those dan gers and conditions which are an integral part of activity. See RSA 508:19. The statute defines the “[i]nherent risks of equine it concluded that Vaneesa’s injuries resulted from an inherent risk of equine We next address the plaintiff’s argument that the trial court erred when 8

horse, and she reported no difficulty controlling the horses that she selected. had no previous experience. Vaneesa would “walk, trot, and canter” with the Vaneesa would select and ride a horse provided by the show with which she she accompanied Ellio t t to at least five horse shows, and on those occasions least twice in the five weeks before the accident. Also, Vaneesa testified that had ridden several different horses, including Wilma, whom she had ridden at aware of Vaneesa’s substantial riding experie nce. During that period, Vaneesa Elliott provided weekly lessons to Vaneesa for almost two years, and was

horses that were unfamiliar to her. We agree with the defendant s. Vaneesa was an experienced rider, and that she was able to proficiently ride that there is ample evidence in the record to establish that Elliott knew that Wilma, that [Vaneesa] had ridden only once or twice.” The defendants counter only 13, and a jury could find that it was not reasonable to use the new horse, reasonable to assess [Vaneesa] and leave her alone simply because s he was because “[a] jury could find that the ‘engage safely’ test is not met as it was not activity.” RSA 50 p. 8 8:19, III(b). The plaintiff argues that this exception applies efforts to determine the ability of the participant to engag e safely in the equine professional “[p]rovided the equine and failed to make reasonable and prudent for an injury or death result ing from an inherent risk of equine activities if the RSA 508:19, III(b) provides that an equi ne professional may be held liable

exception to immunity under Part III (b) or (d) of the statute.” We disagree. inherent risk of equine activities, the plaintiff’s claim “still survives as an T he plaintiff next argues that, even if Vaneesa’s injury resulted from an

the scope of statutory immunity. professional’s failure to enforce a voluntarily adopted safety rule would narrow activity”). Moreover, there is nothing in RSA 50 p. 8 8:1 p. 9 9 to suggest that an equine horses’ propensity to move without warn ing is an inherent risk of equine see also Kangas v. Perry, 620 N.W.2d 429, 433 (Wis. Ct. App. 2000) (“[t]he who mounts a horse should realize that he [or she] may fall or get thrown off”); (recognizing, in a case decided before RSA 508:19 was enacted, that “everyone activities.” See RSA 508:19 I(f); Christian v. Elden, 107 N.H. 229, 235 (1966) resulted from “precisely the kinds of risks that are inherent in equine court concluded, and we agree, that this accident and Vaneesa’s injuries movements, and unfamiliar objects, persons, or other animals”). The trial unpredictability of an equine’s reaction to such things as sound, sudden harm, or death to persons on or around them”); RSA 508:19, I(f)(2) (“[t]he (“[t]he propensity of an equin e to behave in ways that may result in injury, inherent risks as defined in RSA 508:19, I(f)(1) and (2). RSA 508:19, I(f)(1) circumstances surrounding Vaneesa’s accident come within the scope of when she fell off of, and was then stepped on by, Wilma. Specifically, the inherent risk of equine activities. We are not persuaded. Vaneesa was injured trial court erred when it concluded that Vaneesa’s injury was caused by an 9

amounts to willful or wanton disregard for the plaintiff’s safety. T here is no Elliott’s failure to supervise Vaneesa or to enforce her own “safety rule” H ere, t here is no evidence to support th e plaintiff’s argument that

provide much guidance beyond the dictionary definitions set forth above. wanton or reckless conduct”). However, our case law is sparse an d does not of ordinary negligence against homeowners, the rule “does not extend to willful, (stating that while the fireman’s rule precludes firemen from filing complaints ordinary negligence. See Migdal v. Stamp, 132 N.H. 171, 175 - 76 (1 p. 9 989) willful or wanton disregard for the participant’s safety is something more than Our case law construing the words “willful” and “wanton” suggests that

while being utterly indifferent to the consequences.” Id. at 1815. Dictionary defines “wanton” as “[u]nreasonably or maliciously risking harm Black’s Law Dictionary 1834 (10th ed. 2014) (defining “willful”). Black’s Law actor, or at least inexcusable carelessness, whether the act is right or wrong.” law, only when it involves conscious wrong or evil purpose on the part of the (2014). Black’s Law Dictionary states that “a voluntary act becomes willful, in guidance. K.L.N. Construction Co. v. Town of Pelham, 167 N.H. 1 80, 185 defined in the statute, we look to its common usage, using the dictiona ry for RSA 508:1 p. 9 9 does not define “willful” or “wanton.” When a term is not

defendants. the record,” and, therefore, exception III(d) does not apply. We agree with the Elliott acting with any intent to harm or [be indifferent] to [Vaneesa’s] safety in Vaneesa’s safety. The defendants counter that “[t]here is simply no evidence of to enforce her own safety rule, constituted a “willful or wanton disregard” for supervise Vaneesa on the day of the accident — combined with Elliott’s failure find that Elliott’s absence from the farm — and her inability to personally injury.” RSA 508:1 p. 9 9, III (d). The plaintiff contends that a reas onable jury could disregard for the safety of the participant, and that act or omission cause d the or she “[c]om m its an act or omission that constitutes willful or wanton (d): a person engaged in an equine activity does not qualify for immunity if he The plaintiff next argues that Elliott’s conduct falls within exception III

conduct does not fall within exception III(b). providing permission to ride Wilma.” Accordingly, we conclude that Elliott’s to make reasonable and prudent efforts to assess [Vaneesa’s] ability before agree with the trial court that “no r easonable juror could find that Elliott failed equine activity.” RSA 508:1 p. 9 9, III(b). Elliott satisfied this requirement. W e and prudent efforts to determine the ability of [Vaneesa] to engage safely in the u nder exception III(b), we need only consider whether Elliott made “rea sonable accident occurred because Elliott was not supervising the ride. However, Vaneesa’s inability to “engage safely” with W ilma; rather, he argues that the Notably, the plaintiff does not contend that the accident was a result of p. 10 10

LYNN, C.J.