Torts
— Horse bite — Immunity — Defendant stable owner and horse owner were immune
from liability under Florida’s Equine Activities Liability Act for horse bite
suffered by plaintiff while engaged in equine activity — For purpose of
statute’s definition of a person who engages in equine activity as one visiting
or touring an equine facility as part of an organized event or activity,
plaintiff was engaged in an organized event or activity when he visited
defendant’s stable because he was required to obtain a security pass in order
to access the stable area where the injury occurred

PATRICK
GERMER, Appellant, vs. THE CHURCHILL DOWNS MANAGEMENT, ETC., ET AL., Appellees.
3rd District. Case No. 3D14-2695. L.T. Case No. 13-39642. Opinion filed
September 7, 2016. An Appeal from the Circuit Court for Miami-Dade County, Jose
M. Rodriguez, Judge. Counsel: 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

[Original Opinion at 41 Fla. L. Weekly D1630a]

(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 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 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
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 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.

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.

__________________

1We
review the trial court’s grant of summary judgment de novo. Quarantello v.
Leroy, 997 So. 2d 648, 651 (Fla. 5th DCA 2008).

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).

3If,
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.