Tammy Soule & a. v. Keith Bergeron

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0364, Tammy Soule & a. v. Keith
Bergeron, the court on January 31, 2020, issued the following
order:

Having considered the briefs and record submitted on appeal, we conclude
that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1). We affirm.

The plaintiffs, Tammy Soule (victim) and Eric Soule (husband), appeal an
order of the Superior Court (St. Hilaire, J.) granting summary judgment in favor
of the defendant, Keith Bergeron. They contend that the trial court erred by
concluding that: (1) the victim entered into a relationship with the defendant
such that the doctrine of primary implied assumption of risk applied; (2) the
victim’s injuries were caused by risks inherent to horse pulling competitions; (3)
the defendant’s actions did not increase the inherent risks; (4) the defendant was
not negligent; and (5) the defendant’s actions were not the proximate cause of the
victim’s injuries. They further contend that RSA 508:19 (2010), governing
liability associated with equine activities, is not applicable.

In reviewing a grant of summary judgment, we consider the affidavits and
other evidence, and all inferences properly drawn from them, in the light most
favorable to the non-moving party. Sanchez v. Candia Woods Golf Links, 161
N.H. 201, 203 (2010). If our review of that evidence discloses no genuine issue of
material fact, and if the moving party is entitled to judgment as a matter of law,
we will affirm the grant of summary judgment. Id. We review the trial court’s
application of the law to the facts de novo. Id.

In this case, the victim, who testified in her deposition that she owned and
competed with “pulling” horses, chose to sit in the middle of the arena where a
pulling competition was taking place, rather than in the bleachers surrounding
the arena. Although she had no team entered in the competition, she testified
that “[a] lot of us horse pullers” would sit in the middle of the arena during
competitions. Another witness described that the teams waiting to compete were
“parked” at one end of the arena, the victim and others were seated in front of
them in the middle of the arena, and the pulling competition took place at the
other end of the arena.

The defendant was driving a team in the competition. At one point, the
horses took off before the weight they were to pull was successfully secured to
them. The victim testified that less than a second ordinarily elapses between the
weight being secured and the horses starting to pull. When his team ran without
the weight attached, the defendant was dragged, fell, and lost his grip on the
reins. The horses ran toward their “parking” spot, as another pulling horse
owner testified loose teams typically do. That owner waved his hands in the air
to deter the runaway team from coming near his horses, which were “parked.”
The runaway team then collided with the victim.

We have recognized that participating in a sport gives rise to commonly
appreciated risks that are inherent in and arise out of the nature of that sport.
Werne v. Exec. Women’s Golf Assoc., 158 N.H. 373, 376 (2009). The doctrine of
primary implied assumption of risk applies when a plaintiff voluntarily and
reasonably enters into some relation with a defendant that the plaintiff
reasonably knows involves certain obvious risks such that the defendant has no
duty to protect the plaintiff against injuries that may be caused by those risks.
Id. In such circumstances, the defendant is not liable unless he unreasonably
increased that risk or unreasonably created or countenanced risks outside the
range of ordinary activity involved in the sport. Id. at 377.

The plaintiffs represent that “in unique circumstances the doctrine can
apply to spectators, [but] the spectator must still knowingly assume the risks
flowing from the activity either by virtue of the risk being obvious and inherent to
spectating or through affirmatively acting in a manner that places the individual
within the realm of inherent risks.” We conclude that the victim’s decision to
watch the defendant’s pulls from inside the arena met these requirements and
established the requisite relationship between the parties.

Determining the duty placed upon a defendant in a particular case is a
question of law. Allen v. Dover Co-Recreational Softball League, 148 N.H. 407,
417 (2002). We consider: (1) the nature of the sport involved; (2) the type of
contest, i.e., amateur, high school, little league, pick-up, etc.; (3) the ages,
physical characteristics, and skills of the participants; (4) the type of equipment
involved; and (5) the rules, customs, and practices of the sport, including the
types of contact and the level of violence generally accepted. Id. at 418. A
defendant may not be held liable for negligent, or even reckless or intentional,
injurious conduct that is within the range of ordinary activity involved in the
sport. Id.

In this case, the victim testified that she knew there was always a
possibility at a horse pulling event that a horse could get loose, take off, and hurt
someone. She further testified that she assumed that risk by going into the
arena.

Similarly, one of the fair’s judges testified that runaway horses are a
known risk in horse pulling competitions. Another contestant testified that he
had seen horses run away at pulling events and that several years earlier his
horses had done so. He further testified that most fairs require pulling horse
owners to insure their horses in case “[t]hey break loose from the hitch, run into

2
the crowd, [or] anything.” The husband corrected his deposition to say that being
trampled by a horse at a pulling competition is “possible,” but that he did not
“view it as a risk . . . even if you are sitting inside the ring,” thereby indicating
that sitting in the arena exposes one to this type of risk. The horse puller owner
whom the plaintiffs identify as their expert testified in her deposition that,
although not a common occurrence, runaway horses happen at pulling
competitions and that someone had been injured when her horse had run loose
at a different fair.

The plaintiffs offered no evidence that runaway horses were not a known
risk at pulling competitions. Instead, they point to their expert’s statement that
when she had “seen horses taking off without being hitched to the sled, a driver
has always been able to control them and stop them, or at least direct them away
from . . . spectators.” However, the plaintiffs do not claim that all drivers are
always able to do so. See Allen, 148 N.H. at 419 (stating softball in-fielder had no
duty to make only accurate throws).

The plaintiffs argue that the risk of a runaway team is not inherent and
obvious in horse pulling because it does not occur frequently or typically result in
serious injury. However, they cite no authority that to be inherent, something
must occur frequently. See Sanchez, 161 N.H. at 205 (stating risk of ball
ricocheting off yardage marker and hitting player in eye was inherent in golf).

Viewing the evidence presented in the light most favorable to the plaintiffs,
we conclude that a runaway team is within the range of ordinary activity in horse
pulling competitions. See Allen, 148 N.H. at 417.

The plaintiffs next contend that the trial court erred by finding that the
defendant’s conduct did not unreasonably increase the inherent risk that his
pulling team would run away. See Werne, 158 N.H. at 377. They contend that
the defendant did so by: (1) drinking alcohol before the pulling competition; and
(2) engaging in a series of negligent acts that combined to increase the inherent
risks.

Even taken in the light most favorable to the plaintiffs, the evidence does
not support a reasonable inference that the defendant was impaired by alcohol at
the time of the competition. The husband testified that, when he spoke with the
defendant immediately after the victim was injured, the defendant did not seem
drunk. At his deposition, the horse pulling judge described his several
encounters with the defendant during the hours before the competition and
testified that he would have noticed if the defendant had been intoxicated and
that nothing led him to believe that the defendant was impaired. Similarly, the
plaintiffs’ expert, who was sitting with the victim when the defendant’s team ran
loose, testified that she could not “say that [the defendant] was drunk when he
was driving” the horses.

3
 The only evidence that the defendant was drinking alcohol before the pull
consisted of deposition testimony that he was seen drinking a single beer at 5:45
a.m. ─ approximately five hours before the competition. The plaintiffs argue that
this combined with the defendant’s failure to control the horses constitute
“circumstantial evidence that [the defendant] increased an inherent risk of the
activity by consuming alcohol.” However, the plaintiffs’ expert testified that
drivers are not always at fault when a pulling team runs away. We agree with
the trial court that expert testimony, which the plaintiffs did not offer, would be
required to connect these events. See State v. DePaula, 170 N.H. 139, 153 (2017)
(stating expert testimony involves special observation not within common
knowledge of the general public).

The plaintiffs next contend that the way in which the defendant operated
the horses unreasonably increased the inherent risk that they would run away.
However, the husband, after watching videos of his own pull and the defendant’s
pull, testified that he did not do anything differently from the defendant.
Moreover, because the victim knew that sitting in the arena during a horse
pulling competition involved certain obvious risks, the defendant had no duty to
protect her against injury caused by those risks. See Allen, 148 N.H. at 414
(stating defendant had no duty to protect plaintiff who was playing softball from
being hit by ball because risk was obvious). A defendant who has no duty cannot
be negligent. Id. at 416. He may not be held liable for negligent conduct that is
not outside the range of ordinary activity involved in the sport. Id. at 418. In
this case, the plaintiffs failed to establish that the defendant’s conduct was
outside the ordinary range of activity in horse pulling competitions.

Viewing the evidence in the light most favorable to the plaintiffs, we
conclude that the evidence discloses no genuine issue of material fact and that
the defendant is entitled to judgment as a matter of law. See Sanchez, 161 N.H.
at 203. In light of this conclusion, we need not address the plaintiffs’ arguments
regarding proximate cause or RSA 508:19. Any remaining issues raised by the
plaintiffs’ brief do not warrant further discussion, see Vogel v. Vogel, 137 N.H.
321, 322 (1993).

Affirmed.

Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Timothy A. Gudas,
Clerk

4