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Fishman v. GRBR, Inc.

Supreme Court of Montana

October 5, 2017

NEILL FISHMAN, Plaintiff and Appellant,
v.
GRBR, INC., and DOES 1-5, Defendant and Appellee.

          Submitted on Briefs: September 6, 2017

         District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV 16-0481D Honorable Dan Wilson, Presiding Judge.

          For Appellant: John M. Wagner, Wagner Law Firm, PC, Whitefish, Montana

          For Appellee: Antonia P. Marra, Marra Evenson & Bell, PC, Great Falls, Montana

          OPINION

          Jim Rice, Justice.

         ¶1 Neill Fishman (Fishman) appeals the entry of summary judgment by the Eleventh Judicial District Court, Flathead County in favor of GRBR, Inc. (GRBR). We affirm, addressing the following issue:

Did the District Court err by granting summary judgment to the defendant pursuant to the "Equine Activities Act"?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶2 GRBR is a Montana corporation owned by Don Gaynor (Don) and operated by Don and his wife, Nancy Gaynor (Nancy). GRBR offered guest cabins and trail horse rides near Whitefish, Montana, providing about 1, 000 trail rides per year. Fishman was a participant on a GRBR trail ride in June 2014.

         ¶3 Sometime before the day of the ride, Fishman called GRBR and booked a trail ride for himself and some relatives. During the call, Don asked Fishman for his height and weight to determine which horse would work best for him. Fishman stated he was over 6 feet tall and weighed 210 pounds. Based on Fishman's size, Don chose the horse, "Big, " a large horse capable of carrying heavier riders, for Fishman to ride. Big's saddle and associated tack are specifically designed for him.

         ¶4 GRBR presented Fishman with a Supervised Equine Rental Agreement and Release Form (Agreement) prior to the trail ride. The Agreement stated that "saddle girths (fasteners around the horse's belly) may loosen during equine activity, which may cause slippage of the saddle and the potential fall from the horse."[1] Fishman read and signed the Agreement.

         ¶5 GRBR's standard pre-ride procedure includes saddling the horses and checking saddle cinches a minimum of three (3) times before a riding participant mounts the horse. Don saddled Big before Fishman arrived and, consistent with procedure, Big's saddle cinch was checked several times before the horse was mounted. A wrangler rode Big before Fishman arrived and the saddle cinch was checked again.

         ¶6 After the participant mounts the horse, GRBR wranglers give oral instructions and observe the participant riding the horse around the corral in a safety check to address any equipment adjustments, observe how the participant manages the horse, provide instruction, and answer questions or concerns. Participants are instructed to ask for help if they believe something is wrong. Fishman had a low level of riding experience, and Don explained to him how to hold the reins and direct Big's movements. Fishman then rode Big around the corral. Nancy noticed Fishman was leaning to one side and tipping the saddle. Nancy instructed Fishman to shift his weight and to keep the saddle centered over the horse. Fishman complied before departing the corral for the trail.

         ¶7 Upon completion of the safety check, the ride participants were taken out on the trail. Nancy, on horseback, led the riders out of the corral and down the trail at a walking pace. During the ride, Fishman attempted to re-center the saddle by shifting back and forth in the stirrups. Nancy became aware Fishman was having a problem when Fishman yelled at her. Nancy observed Fishman sliding to one side and then attempting to jump off the horse, landing on ...


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