Update: The Supreme Court handed down a merit decision in this case December 6, 2012. Read the analysis here.
On July 10, 2012, the Supreme Court of Ohio heard oral argument in the case of Smith v. Landfair, 2011-1708. At issue is the interpretation of the word “spectator” under R.C. 2305.321, the Ohio Equine Immunity statute, which grants immunity for certain equine-related activities.
The plaintiff’s amicus counsel argued the Court never should have agreed to hear this case, because there are only five reported cases dealing with this statute. But as a torts professor, I just love this case. It’s got it all—statutory interpretation, assumption of the risk, comparative negligence, the rescue doctrine. It could be an exam question.
Roshel Smith worked as barn manager at her father’s horse stable, located on the Wayne County fairgrounds. Donald Landfair boarded two of his horses there, including Green Acre Annie (“Annie”). He had brought his horses there to be trained for harness racing. The extent to which Annie was trained was disputed.
On March 28, 2007, against the advice of Smith’s father, Landfair took Annie to another farm to be shod. He loaded and unloaded her without incident. As Landfair was unloading Annie from the trailer back at the Smith stable, she became spooked by an Amish horse-drawn wagon. Annie subsequently knocked Landfair to the ground. Smith, who at the time was watching her father exercising his horse, heard the commotion and ran to help Landfair. In the process, she was kicked by the horse and sustained severe injuries to her face and jaw. Smith sued Landfair for negligent handling of his horse. Landfair defended on the basis of the equine immunity statute.
R.C. 2305.321(A)(3) subjects an equine activity participant, including spectators, to the immunity statute. Finding Smith to be a spectator at an equine activity, the trial court granted summary judgment to Landfair. The Ninth District Court of Appeals reversed. Read the oral argument preview of this case here.
Each side in the case shared oral argument time with an amicus. Counsel for Landfair argued for a broad reading of the immunities under the statute. In his view, the proper definition of “spectator” is a person at an equine activity who knows or should know that she has placed herself in a position where she may see, watch, interact with or encounter equine activates. He argued that this definition best conforms to the statute’s purpose, the Court’s precedent and to practicality. This definition includes one who looks on, or beholds.
Amicus for the Ohio Horseman’s Council, supporting Landfair, argued that the purpose of this statute is to immunize those responsible for horses from liability for the horses’ unanticipated actions. But upon questioning by Justice Lanzinger, he wouldn’t go so far as to say that anyone around horses assumes the risk of the behavior being inherently dangerous, conceding that wouldn’t be fair to someone who has no expectation that a horse would be present. The definition of spectator should mean someone who purposefully puts him or herself at the place where there are horses. Some folks are active participants, others are passive participants, and some are pure spectators. It doesn’t matter if a person moves from one category to another, because under the statute all of them fall under the umbrella of equine activity.
Amicus from the Ohio Association for Justice took most of the argument time on behalf of Smith. He argued that the defense has now adopted the same definition of spectator as the plaintiff urges—which is a person who physically places herself at an equine activity with the purpose of perceiving that activity. Purpose is key. And he argued that the Court was misdirecting its attention from the definition of spectator to the definition of an equine activity, which wasn’t the issue before the Court. He conceded trailering a horse was an equine activity . But he argued that the plaintiff was not a spectator at the equine activity which injured her, which is crucial to her right to recover. She was watching a different equine activity –her father exercising his horse. Summary judgment was clearly wrong here, as this type of case is very fact-intensive. While the only issue before the Court is the meaning of the word “spectator,” there are other defenses available at trial like implied assumption of risk (now comparative negligence). And it is not fair to call Smith– who was a rescuer in an emergency– a spectator.
Smith’s personal counsel barely got to say a word, because all the time for his side was used up. When he tried, the Chief told him what he was arguing wasn’t helpful. Ouch.
If there’s a horse around, there’s immunity, right?
Justice Stratton pretty much took this position, in a sharp exchange with amicus counsel for Smith. To which, at one point, he uttered these words: SOMEHOW THERE IS EQUINE ACTIVITY IN THE AIR? Intentionally or not, he paraphrased one of the most famous utterances of Justice Benjamin Cardozo from Palsgraf v. Long Island RR-— “Proof of negligence in the air, so to speak, will not do”
Chief Justice O’Conner followed up Justice Stratton’s line of questions, suggesting the plaintiff wanted the Court to read the statute so narrowly that a spectator has to be focused only on a specific equine activity, but if she were injured by a different equine activity, she could recover.
Lots and lots and lots of questions about the meaning of spectator
The justices asked everyone except Smith’s lawyer his definition of spectator, with the answers reflected above. Justice O’Donnell wanted to know if the term was synonymous with bystander (yes, said Landfair’s counsel).
Here’s my favorite exchange of the day
Justice O’Donnell to Smith’s amicus lawyer:
You’re not saying unloading the horse was not an equine activity, are you?
Answer—it was an equine activity, but one she was not spectating. (Professor’s note—I don’t think “spectating” is a word. And he wasn’t the only one who used it.)
If she wasn’t spectating the unloading of the horse, how did she get herself over to assist if she wasn’t seeing it?
He later asked if Smith had to be there to watch the unloading to be a spectator? (yes, said OAJ’s lawyer for Smith) And again still, whether there could be two equine activates occurring at the same time? If you go to watch one, but are injured by the other, are you still a spectator?
Something about this case caused a lot of shaggy horse hypos, such as, if you are watching a parade with firetrucks, but a stray horse runs by and injures you, are you a spectator at an equine activity? (Justice O’Donnell). Or just watching horses at a 4th of July parade? (Justice O’Donnell.) What if you are just walking past a horse? (Justice Lanzinger). What if you go to the state fair only to take your kids on the rides, and you are not going near the horse barn, but on the way to the rides a Budweiser Clydesdale horse comes by out of control and injures you? (Justice Pfeifer). A runaway horse down Front Street? (Chief Justice O’Conner).
When Does Assumption of the Risk Kick In? (no pun intended)
Asked Chief Justice O’Conner
Justice Cupp asked several questions about whether a person could begin as a spectator and change status to a rescuer. What would that mean for this case?
Justice McGee Brown asked if a person seeing someone else in peril should just stand there and do nothing (this reminded me of the looks of horror by my 1L torts students when they hear the common law no duty to rescue rule)
Justice Stratton asked whether the legislature even considered rescue in a “rather extensive statute that includes almost everything but the kitchen sink because this is an inherently risky situation?”
What about Wilful and Wanton?
There was some discussion of this issue, which could come into play to defeat immunity for Landfair, if the case were remanded, because such behavior isn’t immune.
How it Looks from the Bleachers
This looks like a split decision. Justice Stratton is leading the charge for immunity—she takes a very broad view of what is intended to be covered, sounding close to anything that involves horses. She is most likely to find that Smith was a spectator at an equine activity. Chief Justice O’Conner seemed to agree. Justice O’Donnell seemed to come around to Smith’s position about having to be injured by the actual equine activity one “spectated”– and here, Smth wasn’t watching Landfair remove his horse from the trailer. Justice Pfeifer notoriously dislikes immunity, and is likely to read the definition of spectator more narrowly. The kicker in the case is the rescue doctrine. That may muddy the water. I think Justice Cupp is going to run with that one. In any event, if summary judgment is reversed, I’ve always thought there’s a significant assumption of risk/comparative negligence defense here.
Here’s student contributor Katlin Rust’s take:
The important question here is whether a spectator is required to focus on the horse that injured him to recover. And it seems that the Court isn’t quite solidified on how to answer the question. It appears Justice Stratton is firmly behind Mr. Landfair with Chief Justice O’Connor and Justice Langzinger trailing behind. Justice O’Donnell may still be on the fence – judging by his question to Ms. Smith’s counsel asking how she knew to help if she couldn’t see the incident. Justice Cupp mainly focused on the rescue wrench thrown into this case and what that means for immunity. It looks like this case is leaning towards a broader interpretation of the statute. Bottom line – this case proved 1L tort teachers right, you can’t imagine any hypo as good as reality.