Submitted on Briefs: September 6, 2017
Court of the Eleventh Judicial District, In and For the
County of Flathead, Cause No. DV 16-0481D Honorable Dan
Wilson, Presiding Judge.
Appellant: John M. Wagner, Wagner Law Firm, PC, Whitefish,
Appellee: Antonia P. Marra, Marra Evenson & Bell, PC,
Great Falls, Montana
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
Did the District Court err by granting summary judgment
to the defendant pursuant to the "Equine Activities
AND PROCEDURAL BACKGROUND
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.
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.
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." Fishman read and
signed the Agreement.
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.
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.
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 ...