Germer v. Churchill Downs Management, Etc. , 201 So. 3d 721 ( 2016 )

Third District Court of Appeal
State of Florida
Opinion filed September 7, 2016.
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No. 3D14-2695
Lower Tribunal No. 13-39642
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Patrick Germer,
Appellant,
vs.
The Churchill Downs Management, etc., et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Jose M.
Rodriguez, Judge.
Lindsey M. Tenberg, P.A., and Lindsey M. Tenberg (Lighthouse Point), for
appellant.
Hinshaw & Culbertson LLP, and James H. Wyman, for appellees.
Before SHEPHERD, LAGOA and SCALES, JJ.
On Motion for Rehearing
SCALES, J.
We deny Appellant Patrick Germer’s motion for rehearing. We withdraw
our prior opinion of July 13, 2016, and substitute the following opinion for that
previously issued.
Appellant, plaintiff below, Patrick Germer appeals a summary judgment
entered by the trial court in favor of Appellees, defendants below, Pinecrest
Stables, Inc., Parsons Pinecrest Farm, Inc., Santa Cruz Ranch, Inc., and Juan Pedro
Rizo Patron (collectively “Defendants”). We affirm because Florida’s Equine
Activities Liability Act (the “Act”) immunizes Defendants for the injuries
occasioned by a horse that bit Germer while Germer was engaged in an equine
activity.
I. Facts
On September 26, 2012, Germer, a former licensed jockey, and his
roommate Tomislav Zivanovich decided to visit Calder Race Course in Miami
Gardens, Florida to see Zivanovich’s horse. Because Germer’s jockey license had
expired, Germer was required to obtain a guest pass in order to enter the stables.
While Germer was en route through the barn to see Zivanovich’s horse, another
horse named Forever Happy jumped out of his stall and bit Germer’s chest.
Approximately a year and a half later on December 27, 2013, Germer filed
suit against the owners of the stables and the owner of Forever Happy, alleging that
Defendants were negligent in allowing Forever Happy to bite Germer. Defendants
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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. 773.03, an equine activity sponsor, an equine
professional, or any other person, which shall include a corporation or
partnership, shall not be liable for an injury to . . . a participant
resulting from the inherent risks of equine activities and, except as
provided in s. 773.03, no participant . . . shall have any claim against
or recover from any equine activity sponsor, equine professional, or
any other person for injury . . . of the participant resulting from any of
the inherent risks of equine activities.
The Act defines a “participant” as “. . . any person, whether amateur or
professional, who engages in . . . an equine activity, whether or not a fee is paid to
1We review the trial court’s grant of summary judgment de novo. Quarantello v.
Leroy, 997 So. 2d 648, 651 (Fla. 5th DCA 2008).
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participate in the equine activity.” § 773.01(7), Fla. Stat. (2012). The Act
specifically defines “engages in an equine activity” as
riding, training, assisting in veterinary treatment of, driving, or being a
passenger upon an equine, whether mounted or unmounted, visiting or
touring or utilizing an equine facility as part of an organized event or
activity, or any person assisting a participant or show management.
The term “engages in an equine activity” does not include being a
spectator at an equine activity, except in cases where a spectator
places himself or herself in an unauthorized area.
§ 773.01(1), Fla. Stat. (2012). (emphasis added)
B. The issue on appeal
The critical, indeed dispositive, issue in this case is whether Germer was
“visiting an equine facility as part of an organized event or activity” when he was
bitten by Forever Happy. 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. Stat. (2012).
C. The parties’ respective arguments
Germer argues that his visit to the stables did not constitute an organized
activity or event because Germer’s decision to visit the stables with his roommate
was made on the spur of the moment and was not coordinated with the stable
owners prior to the visit. Defendants argue that Germer’s visit was “organized” by
Zivanovich, an owner of a horse housed at the stables. Defendants further argue
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that the stable’s requirement that all guests obtain a guest pass prior to entering the
horse barn – combined with the statutorily required warning posted at the stable2 –
constitutes the requisite “organization” so as to immunize Defendants from
Germer’s personal injury claims.
D. Legislative intent
While the Legislature meticulously defined virtually every other operative
term in chapter 773, the statute does not provide a definition for “organized event
or activity.” Therefore, we are called upon to construe the provision, consistent
with the Act’s legislative intent. Bautista v. State, 863 So. 2d 1180, 1185 (Fla.
2003).
In order to ascertain legislative intent, we look at the statutory scheme, as a
whole, and interpret the specific provision consistent 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 to, or the death of, a participant in equine
activities resulting from the inherent risks of equine activities.
§ 773.04(2), Fla. Stat. (2012).
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that all parts of a statute must be read together in order to achieve a consistent
whole.”).
Plainly, the Act’s general intent is to limit the liability of Florida’s equine
facilities for injuries resulting from inherent risks associated with equine activities.
To effectuate this intent, the Legislature broadly defined those activities
constituting an equine activity. Indeed, the Legislature carved out only one specific
exception from this broad definition, i.e., spectators in an authorized area. §
773.01(1), Fla. Stat. (2012). See Thayer v. State, 335 So. 2d 815, 817 (Fla. 1976)
(conveying intent pursuant to the principle of statutory construction, expressio
unius est exclusio alterius, “the mention of one thing implies the exclusion of
another”). Thus, against this backdrop, we interpret the phrase “as part of an
organized event or activity” consistent with the Legislature’s overall intent to limit
the liability of equine facilities for injuries resulting from risks associated with
horses.
E. Statutory application
In this case, Defendants’ equine facility maintained an internal policy that
required security passes in order to access the stable areas where Germer’s injury
occurred. The record in this case plainly establishes that, in order for Germer to
have gained access to this area, Germer had to be issued a paper visitor’s pass by
the stable’s security personnel.
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Put another way, in order for Germer to have gained access to the area where
his injury occurred, Germer had to jump over an established hurdle. In our view,
the creation and existence of such a protocol constituted the requisite
“organization” so as to make Germer’s visit to the stables “an organized activity”
as defined in section 773.01(1) of the Florida Statutes.
III. Conclusion
Therefore, we agree with the trial court’s analysis of the uncontested facts of
this case and its determination that the Act immunizes Defendants from any
liability resulting from Germer’s horse bite.3
Affirmed.
3 If, as here, the Act’s immunity provisions apply to exculpate an 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.
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