Florida/Georgia Personal Injury & Workers Compensation

..., cannot now benefit from his own improper conduct by virtue of this "gotcha" argument. *356 In any event, we hold that this issue is properly before this court as a question of law. Further, we hold that chapter 773 cannot be applied retroactively. Section 773.02, Florida Statutes (1993), provides in pertinent part: [A]n equine activity sponsor [such as Bar-B]......

...(c) Certain hazards such as surface and subsurface conditions. * * * (e) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within his or her ability. Section 773.02 further provides the following general provision: [A]n equine activity sponsor, an equine professional, or any other person, which shall include a corporation or partnership [such as Disney], shall not be liable for an injury to or the...

...Bulldog Airlines, Inc., 705 So.2d 120 (Fla. 5th DCA 1998)). The exculpatory clause included in the release that Robin Raveson signed prior to mounting the horse in the instant case clearly meets that requirement. Additionally and separately from the release and indemnity agreement, section 773.02, Florida Statutes may serve to release Disney from liability....

...GRIFFIN and SAWAYA, JJ., concur. NOTES [1] This warning complies with the notification requirement found in section 773.04, Florida Statutes (1997). [2] While some degree of matching may be possible, section 773.01(6) seems to contradict the exclusion of liability provided in section 773.02 against the propensity of equines to behave in ways that may result in injury, harm, or death and the unpredictability of an equine's reaction to such things as sounds, sudden movement, and unfamiliar objects, persons, or other animals....

...td. (R & R), an equine activity sponsor, not liable for injuries suffered by appellant, Patricia McGraw, an equine trainer employed by R & R, after she was thrown by a horse which R & R owned, by reason of the immunity afforded to equine sponsors by section 773.02, Florida Statutes (2000)....

...lity is otherwise provided in section 773.04, the breach of such duty, if it occurred, does not meet any of the narrow categories of exceptions set out under section 773.03. A proper resolution of the issue requires a careful examination of sections 773.02, 773.03, and 773.04. Section 773.02 provides: General provisions....

...Moreover, there is no disagreement that McGraw's injuries were the result of "an inherent risk of an equine activity," defined in part in section 773.01(6), Florida States (2002), as "those *889 dangers or conditions which are an integral part of equine activities." [3] In that section 773.02 explicitly refers only to the limitations from liability as provided in section 773.03, we must carefully examine the exceptions expressed therein to determine whether they reasonably permit an in pari materia construction with provisions not included. Section 773.02(2) provides: (2) Nothing in s. 773.02 shall prevent or limit the liability of an equine activity sponsor, an equine professional, or any other person if the equine activity sponsor, equine professional, or person: (a) Provided the equipment or tack, and knew or should have know...

...stances." § 773.03(2)(d), Fla. Stat (2002). In our judgment, such construction is consistent with the legislative intent, although not expressly stated, that the failure to post such warning disqualifies the sponsor from the protections afforded by section 773.02....

...controls qualification for the statutory rights. This supports a mandatory construction of the notice requirement. Id. § 57.15. Terence J. Centner, "The New Equine Liability Statutes," 62 Tenn. L.Rev. 997, 1016-17 & n. 159 (1995) (emphasis added). Section 773.02 is a statute only limiting an equine sponsor's civil liability; therefore, the construction we have placed on the statute is, in our judgment, consistent with the legislative purpose to furnish immunity to a sponsor from liability for...

...filed a motion for summary judgment, alleging that the Act, codified in chapter 773 of the Florida Statutes, immunized Defendants from any liability to Germer. Defendants’ motion asserted that Germer was a “participant engaged in an equine activity” and, therefore, pursuant to section 773.02 of the Florida Statutes, was statutorily precluded from recovering damages....

...After conducting a hearing, the trial court held that the Act immunized Defendants, and entered a final summary judgment in favor of Defendants from which Germer takes this timely appeal. II. Analysis1 A. The Act’s relevant provisions The operative immunity provision of the Act is codified in section 773.02 of the Florida Statutes, which reads, in relevant part, as follows: Except as provided in s....

...If, as Defendants argue and as the trial court held, Germer was engaged in such an organized event or activity, then Germer was a “participant engaged in an equine activity” and Defendants are statutorily immunized from Germer’s claim for personal injuries. § 773.02, Fla....

...with the theme evidenced by its statutory structure. State v. Moreno-Gonzalez, 18 So. 3d 1180, 1182 (Fla. 3d DCA 2009) (stating that courts are “guided by the rule of statutory construction 2In order for an equine facility to avail itself of section 773.02’s exculpation, the Act requires the posting of the following warning notice: WARNING Under Florida law, an equine activity sponsor or equine professional is not liable for an injury t...

...n equine activity sponsor, a claimant is saddled with the burden of establishing an applicable exception to exculpation under section 773.03(2). Germer makes the alternate argument that a factual dispute exists as to whether any of the exceptions to section 773.02 articulated in section 773.03(2)(a)-(e) apply. Without further discussion, we affirm the trial court’s determination that no genuine issue of material fact exists and none of the exceptions to section 773.02 apply to this case. 7 

...This is an appeal from the trial court's order granting a directed verdict finding the defendant, South Florida Trotting Center, Inc., an equine sponsor, not liable for injuries suffered by plaintiff, Myles McNichol, in a horse related accident by reason of the immunity afforded to equine sponsors by section 773.02, Florida Statutes and assumption of the risk....

...ejected from his jog cart and injured. The plaintiff filed an action against the defendant, alleging it breached its duty of care and was negligent by allowing the dirt mound to be placed on the inside edge of the track. The defendant responded that section 773.02 provided it with absolute immunity for injuries resulting from the inherent risks of equine activities....

...laintiff failed to establish a prima facie case of negligence. The plaintiff argued issues of fact had been raised pertaining to the negligence exception contained in section 773.03 which should be determined by the jury. The trial court, relying on section 773.02, found defendant as an equine sponsor was not liable for plaintiff's injuries because the injuries resulted from the inherent risk of equine activities....

...(d) Collisions with other equines or objects. (e) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within his or her ability. (Emphasis added). Section 773.02 provides that: *256 Except as provided in s....

...See e.g. Ashcroft v. Calder Race Course, Inc., 492 So.2d 1309, 1311 (Fla. 1986) (holding that riding on a track with a negligently placed exit gap is not an inherent risk in the sport of horse racing). Additionally, Section 773.03 provides: (2) Nothing in s. 773.02 shall prevent or limit the liability of an equine activity sponsor, an equine professional, or any other person if the equine activity sponsor, equine professional, or person: .......

...t risk of equine activity. Reversed and Remanded. POLEN, J., concurs. MAY, J., dissents with opinion. MAY, J., dissenting. I respectfully dissent. The trial court correctly directed a verdict for the defendant based on both the statutory immunity of section 773.02, Florida Statutes (2004) and the plaintiff's express assumption of risk due to the open and obvious nature of the dirt mounds inside the track....

...Two other trainers testified that horses run into all kinds of things, including water trucks, tractors, jog carts, trees, fences, and other trainers and things, all of which are inherent risks of the profession. The plaintiff *258 also admitted that yearlings, such as the horse in question, are unpredictable. Section 773.02 provides in part: Except as provided in s....

...nd, except as provided in s. 773.03, no participant ... shall have any claim against or recover from any equine activity sponsor ... for injury, loss, damage, or death of the participant resulting from any of the inherent risks of equine activities. § 773.02, Fla....

...The facts of this case uniquely satisfy all but one of the inherent risks identified in the statute. I cannot in good conscience find a reason to deviate from the immunity provided by this statute. The plaintiff relies upon the negligence exception found in section 773.03(2)(d) in an attempt to avoid the immunity found in section 773.02, Florida Statutes (2004). That exception provides that: Nothing in s. 773.02 shall prevent or limit the liability of an equine activity sponsor ......

...the participant, which act or omission was a proximate cause of the injury.... § 773.03(2)(d), Fla. Stat. (2004). Read in its broadest sense and out of context, the exception appears to exempt ordinary negligence from the very immunity provided by section 773.02. And, it is with this reading the majority reverses the directed verdict. When read in context with section 773.02, however, and with the goal of giving meaning to all provisions of the equine immunity law, the exception takes on a more limited form. Section 773.02 provides immunity to the defendant "for an injury to or the death of a participant resulting from the inherent risks of equine activities...." By reading section 773.03 in pari materia, it exempts from section 773.02's immunity, negligent acts or omissions and willful or wanton conduct that do not fall within the defined "inherent risks of equine activities." An example of a negligent act or omission that would fall under the exception might be an...

...quine professional who mixed fertilizer with the feed and caused the horse to be sick and collapse during a ride, injuring the rider. This mix-up in the food is not an inherent risk, and the equine professional's negligence would not be immune under section 773.02....

...gently placed exit gap is not an inherent risk in the sport of horse racing," this decision pre-dated the enactment of chapter 773, effective May 5, 1993. Ashcroft, 492 So.2d at 1311. [3] In McGraw, the First District held that equine immunity under section 773.02 did not apply because the defendant had failed to comply with the statutory mandate to post and maintain a specific warning notice as required by section 773.04, Florida Statutes (2004)....

2 activity” and, therefore, pursuant to section 773.02 of the Florida Statutes, was statutorily precluded