Illinois Official Reports 

Appellate Court

Perkinson v. Courson, 2018 IL App (4th) 170364

Appellate Court 

Caption

DEANNA L. PERKINSON, Plaintiff-Appellant, v. SARAH 

COURSON, Defendant-Appellee.

District & No. Fourth District

Docket No. 4-17-0364

Filed March 12, 2018

Decision Under 

Review

Appeal from the Circuit Court of Jersey County, No. 15-L-31; the 

Hon. Eric S. Pistorius, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

Timothy J. Chartrand, of Williamson, Webster, Falb & Glisson, of 

Alton, for appellant.

Amy L. Jackson and Samantha Dudzinski, of Rammelkamp Bradney, 

P.C., of Jacksonville, for appellee.

Panel PRESIDING JUSTICE HARRIS delivered the judgment of the court, 

with opinion.

Justices Steigmann and Turner concurred in the judgment and 

opinion. 
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 OPINION 

¶ 1 In August 2014, plaintiff, Deanna L. Perkinson, was kicked by a horse and injured. In 

December 2015, she filed a two-count complaint against the horse’s owner, defendant Sarah 

Courson, alleging a violation of the Illinois Animal Control Act (510 ILCS 5/1 to 35 (West 

2014)) (count I) and negligence (count II). Although plaintiff and defendant are Illinois 

residents, the incident at issue occurred in Missouri and the trial court determined Missouri law 

controlled the conflict. Following that determination, the court granted defendant’s motion to 

dismiss count I of plaintiff’s complaint and her motion for summary judgment as to count II. 

Plaintiff appeals, arguing the court erred in (1) ruling on defendant’s motion to dismiss count I 

of the complaint because the motion was brought pursuant to the wrong statutory section, 

(2) finding Missouri law applied to the parties’ controversy, and (3) finding defendant was 

entitled to summary judgment on count II of the complaint. We affirm. 

¶ 2 I. BACKGROUND 

¶ 3 In her December 2015 complaint, plaintiff alleged that both she and defendant were Illinois 

residents. On August 29, 2014, they were horseback riding alongside one another on a public 

trail when plaintiff was kicked by the horse defendant was riding, which defendant owned. 

Plaintiff maintained she sustained permanent and disfiguring injuries to her right leg as a result 

of being kicked. In connection with count I of her complaint, alleging a violation of the Animal 

Control Act, plaintiff also asserted that at the time and place of her injury, she did not provoke 

defendant’s horse, had been conducting herself peaceably, and was in a location where she had 

a legal right to be. Relative to count II, alleging negligence, plaintiff asserted defendant owed 

her a duty of care but breached that duty by (1) failing to warn plaintiff of the horse’s violent 

propensity to kick others, (2) failing to properly train the horse, (3) riding too close to plaintiff 

and plaintiff’s horse when knowing that her horse had a violent propensity to kick others, and 

(4) riding her horse contrary to industry and practice norms. Plaintiff further alleged that as a 

direct and proximate result of defendant’s negligence, she was kicked by defendant’s horse 

without provocation and injured. 

¶ 4 In January 2016, defendant filed a motion to dismiss plaintiff’s complaint. She first sought 

dismissal of count I pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 

ILCS 5/2-615 (West 2014)). Specifically, defendant argued that the incident at issue occurred 

while the parties were on a horseback riding trip in Eminence, Missouri, and, as a result, 

Missouri law governed “the pending litigation.” She further maintained that because count I of 

plaintiff’s complaint was based entirely on Illinois statutory law, that count necessarily failed 

to state a claim upon which any relief could be granted and had to be dismissed. Defendant 

further sought dismissal of both count I and count II under section 2-619(a)(9) of the Code 

(735 ILCS 5/2-619(a)(9) (West 2014)). She argued plaintiff signed a “ ‘Release of Liability’ ” 

(Release) prior to horseback riding, which, under Missouri law, barred her claims. 

¶ 5 In February 2016, plaintiff responded to defendant’s motion, arguing Illinois law applied 

to both counts of her complaint. Further, she argued the Release referenced by defendant 

should be disregarded because defendant failed to attach a sworn or certified copy of the 

Release to her motion to dismiss. Plaintiff alternatively argued the Release was against Illinois 

public policy, vague, ambiguous, overbroad, and could not be relied upon by defendant who 

was “a non-party outside of the Release.” 
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¶ 6 In March 2016, the trial court conducted a hearing on defendant’s motion to dismiss. At the 

hearing, defendant withdrew the portion of her motion that sought dismissal pursuant to 

section 2-619 and proceeded only with the portion of her motion that sought dismissal of count 

I under section 2-615. Ultimately, the court granted defendant’s motion to dismiss count I, 

holding as follows: 

“[I]n conflict of law cases the courts must determine which forum has the most 

significant contacts with the litigation. Further, there is a legal presumption that the law 

of the state where the injury occurred applies in determining the rights and liabilities of 

the parties unless Illinois has a more significant relation to the conflict. This court finds 

that *** plaintiff has failed to establish that Illinois has a more significant relationship 

to the conflict. As such, Count I, which is based on the [Illinois] Animal Control Act, is 

hereby dismissed.” 

¶ 7 In April 2016, plaintiff filed a motion to reconsider the trial court’s ruling as to count I of 

her complaint. She argued the court erred in its application of existing law as the case authority 

cited by both parties heavily favored application of Illinois law rather than Missouri law. 

Additionally, plaintiff maintained the court erred by placing the burden on her to establish that 

Illinois had a more significant relationship to the matter, rather than on defendant, the moving 

party. 

¶ 8 In June 2016, a hearing was conducted on plaintiff’s motion to reconsider. In its written 

order, the trial court stated it had considered both plaintiff’s motion and defendant’s response 

and “noted, for the first time,” that the question of which state’s law to apply involved factual 

determinations regarding the nature of the parties’ relationship, the planning of their trip to 

Missouri, and the training of defendant’s horse while in Illinois. The court pointed out that no 

affidavits or deposition testimony had been presented by the parties and elected to “keep 

plaintiff’s Motion to Reconsider under advisement until the[ ] facts or issues [could] be fleshed 

out during the discovery process.” 

¶ 9 In September 2016, plaintiff filed a supplemental brief to her motion to reconsider, and 

defendant filed a supplemental response. Plaintiff attached the depositions of both parties to 

her filing. 

¶ 10 During her deposition, plaintiff testified she resided in Dow, Illinois, both at the time of the 

incident at issue and at the time of her deposition. She had known defendant since 2003. They 

met through mutual friends and were brought together through the activity of horseback riding. 

Plaintiff and her husband had also purchased defendant’s house. 

¶ 11 Plaintiff testified she engaged in horseback riding on and off since the age of five. She and 

her husband owned nine horses and were part of a group of friends that rode horses together. 

Plaintiff estimated that 20 to 25 people were in their group, including defendant. She further 

estimated that she and defendant went horseback riding together approximately five or six 

times a year. Within plaintiff’s group of horseback riding friends, there were people that 

plaintiff was closer to and whom she would talk with about going on horseback riding trips. 

Plaintiff testified she was not close friends with defendant. She denied that they spent time 

socially at one another’s homes or that they participated in any activities together other than 

horseback riding. 

¶ 12 On examination by her own counsel, plaintiff testified that prior to August 2014, she 

considered defendant her friend. They had ridden horses together in Illinois and “hung out” at 
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the home of a mutual friend. Also, they had each other’s telephone numbers and were 

Facebook friends. 

¶ 13 In August 2014, individuals from plaintiff’s horseback riding group went on a trip to Cross 

Country Trail Ride, LLC (Cross Country), in Eminence, Missouri. According to plaintiff, each 

year, Cross Country organized a trail ride event during Labor Day weekend. She had 

previously attended the event approximately six times. Plaintiff testified Cross Country 

provided its paying guests with a campsite, stalls for horses, entertainment, and food. 

¶ 14 On August 28, 2014, plaintiff arrived at Cross Country with her husband, daughter, and 

stepdaughter. The family took four of their own horses and met up with other individuals from 

plaintiff’s group of friends. Plaintiff stated she had not known whether defendant would be on 

the trip but saw defendant at Cross Country on the evening of her arrival. 

¶ 15 Plaintiff acknowledged signing certain documents upon her arrival at Cross Country on 

August 28, 2014. She identified her signature on forms that were submitted as exhibits during 

her deposition and recalled signing similar forms during her previous visits to Cross Country. 

Plaintiff acknowledged that part of the form she signed was titled “Release of Liability” and 

instructed her to read before signing; however, plaintiff testified she did not read the form 

because she had driven a long distance to get to Cross Country and believed it “was just to 

register.” Plaintiff admitted signing similar forms on behalf of her daughter and stepdaughter. 

¶ 16 Plaintiff testified that prior to signing the Cross Country forms, she understood that there 

was a risk of injury when participating in horseback riding events, including falling off a horse 

or being kicked. Despite that risk of injury, she participated anyway. Further, plaintiff testified 

she would have proceeded with the trail ride at Cross Country if she had read the form she 

signed, which included a warning about the risk of injury when participating in horseback 

riding events and statements indicating she fully assumed the risks of participation. Plaintiff 

acknowledged that the form she signed used the phrase “other participants.” She agreed that 

defendant would have been “another participant” in the activities at Cross Country. 

¶ 17 On August 29, 2014, plaintiff, her family, and members of her group intended to take a 

six-hour trail ride on one of the “identified trails” at Cross Country. Plaintiff was riding a horse 

named Chester, and defendant was riding a horse named Little Bit. Plaintiff did not recall ever 

previously being around Little Bit. Further, she acknowledged consuming beer during the trail 

ride. Plaintiff stated she also observed that defendant was consuming alcohol and believed 

defendant was intoxicated. During a break on the trail ride, defendant told plaintiff that Little 

Bit “had kicked [defendant’s] husband while her husband was in the pasture.” She did not 

remember defendant telling her when the kick occurred or that the horse was in heat at the 

time. Plaintiff stated she did not notice anything concerning about Little Bit’s behavior while 

horseback riding on the day of the incident. 

¶ 18 At some point during the trail ride, plaintiff and defendant began riding next to one another 

and were talking. Plaintiff did not recall who approached whom or how long they rode next to 

each other. As they were riding together down a hill, defendant’s horse kicked out with both of 

its rear legs and struck plaintiff on her right shin. Plaintiff did not know what caused the horse 

to kick. Following the kick, plaintiff had to be helped off her horse, and an ambulance was 

called to the scene. Plaintiff stated she had a broken bone in her shin and, ultimately, 

underwent two surgeries. 

¶ 19 Plaintiff testified that during the trail ride defendant should have put a red ribbon on her 

horse’s tail to warn others that her horse was known to kick. She asserted, however, that the 
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presence of a red ribbon would not have altered her own behavior. Additionally, plaintiff stated 

she returned to Cross Country for horseback riding after the August 2014 incident with 

defendant’s horse. Although she did not plan on attending Cross Country’s Labor Day event in 

2016, she did plan to go to another location in Missouri for a Labor Day trail ride. 

¶ 20 As stated, the record also contains defendant’s deposition. Defendant testified she resided 

in Farina, Illinois, with her husband. She met plaintiff in 2003 through her former sister-in-law 

who was friends with plaintiff. Also, in 2013, plaintiff purchased defendant’s house in Dow, 

Illinois. Defendant testified she advertised the sale of her house on Facebook and plaintiff 

“friended [her] on Facebook” and contacted her by telephone about the house. Defendant 

noted her phone number was in her advertisement. She was not aware of plaintiff having her 

phone number prior to the time she advertised the sale of her house. Defendant considered 

plaintiff to be an acquaintance rather than a friend, noting they only socialized through mutual 

friends and always went horseback riding in a group setting. She estimated that she went 

horseback riding with plaintiff twice a year since 2006 but did not recall whether all of those 

occasions were in Illinois. 

¶ 21 Defendant testified she grew up around horses and regularly went horseback riding. Since 

2003, she owned 11 different horses. Defendant stated someone else would train her horses to 

ride and then she “worked the tweaks out.” Specifically, defendant stated she trained her 

horses, including Little Bit, to “neck rein,” not to ride too close to other horses, and in “ground 

manners.”

¶ 22 In 2012, defendant purchased Little Bit from one of the members of her horseback riding 

group of friends. She kept Little Bit at her farm in Farina, Illinois. In 2013, Little Bit was 

trained for 30 days in Kampsville, Illinois, by an individual named Samuel Kaufman. 

Thereafter, defendant took over. Defendant testified her training with Little Bit included going 

on several trail rides with other horses. She estimated Little Bit went on six trail rides before 

the Cross Country trail ride in August 2014. Defendant stated that, prior to August 2014, Little 

Bit kicked at another horse in a pasture while she was in heat. During that incident, Little Bit 

made contact with defendant’s husband who “was in the way.” Defendant denied that any 

other kicking incidents occurred prior to August 2014. 

¶ 23 Defendant testified she had been to Cross Country eight times prior to August 2014. She 

always went to Cross Country with a group. Defendant recalled seeing plaintiff at Cross 

Country prior to 2014 but did not recall if they rode horses together. In August 2014, defendant 

was at Cross Country with her husband, mother, and father. During the August 29, 2014, trail 

ride, defendant rode Little Bit, who had not previously been on a trail ride at Cross Country. 

¶ 24 Defendant acknowledged drinking alcohol on the trail ride but stated she did not know if 

she was intoxicated. She estimated she had less than six beers, the amount she typically packed 

in her cooler. Defendant denied noticing anything peculiar about Little Bit during the trail ride. 

However, she asserted she told all of the other horseback riders that she would stay toward the 

back of the group because Little Bit was young, she did not know whether the horse would 

kick, and defendant did not totally trust the horse. Defendant testified she trusted Little Bit 

enough to ride her with other people but “didn’t trust that she maybe wouldn’t kick.” 

¶ 25 Defendant described the incident involving plaintiff, stating they were coming down a hill 

side by side when Little Bit “trotted up ahead.” She then heard plaintiff yell out and observed 

plaintiff reaching for her leg. Defendant estimated that she and plaintiff had been a little more 

than arm’s distance apart and were having a conversation before the incident. She stated she 
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did not know why Little Bit kicked. In the fall of 2014, defendant sold Little Bit. She testified 

she was not comfortable with the horse, noting an occasion when Little Bit bucked her off after 

being “spooked” by cattle.

¶ 26 In October 2016, the trial court entered a written order finding no reason to reconsider its 

previous ruling and denying plaintiff’s motion to reconsider. In so holding, the court noted it 

reviewed its prior decision and the parties’ additional arguments. It stated the additional facts 

presented to it only further supported its decision to grant defendant’s motion to dismiss. 

¶ 27 In February 2017, defendant filed a motion for summary judgment as to count II of 

plaintiff’s complaint, alleging negligence, as well as a memorandum of law in support of her 

motion. She alleged that based on the deposition testimony of plaintiff and defendant, no 

question of material fact existed and she was entitled to judgment in her favor as a matter of 

law. Defendant maintained plaintiff was unable to establish that defendant owed her a duty, 

arguing that plaintiff both implicitly and explicitly assumed the risks associated with 

horseback riding. Also, she argued that plaintiff’s “testimony undermine[d] any and all 

proffered allegations of breach of duty.” 

¶ 28 Defendant attached the parties’ depositions to her filing, as well as copies of the Cross 

Country documents plaintiff acknowledged signing. The documents included forms titled 

“RELEASE OF LIABILITY—READ BEFORE SIGINING [sic],” which provided as follows:

“In consideration of being allowed to participate in any way, including but not limited 

to trail riding, competing, officiating, working for, recreating in any fashion while 

visiting Cross Country Trail Ride, LLC, and its trail ride program, its related events and 

activities, I *** the undersigned, acknowledge, appreciate, and agree that; 

 1. The risk of injury from the activities involved in this program is significant, 

including the potential for permanent paralysis and death, and while particular skills, 

equipment, and personal discipline may reduce the risk, the risk of serious injury does 

exist; and, 

 2. I KNOWINGLY AND FREELY ASSUME ALL SUCH RISKS, both known 

and unknown, EVEN IF ARISING FROM NEGLIGENCE OF THE RELEASEES or 

others, and assume full responsibility for my participation; and, 

 3. I willingly agree to comply with the stated and customary terms of participation. 

If, however, I observe any unusual significant hazard during my presence or 

participation, I will remove myself from participation and bring such to the attention of 

the Company immediately; and, 

 4. I, for myself and on behalf of my heirs, assigns, personal representatives, and 

next of kin, HEREBY RELEASE, INDEMNIFY, AND HOLD HARMLESS CROSS 

COUNTRY TRAIL RIDE, LLC, officers, officials, agents and/or employees, other 

participants, sponsoring agencies, sponsors, advertisers, and, if applicable, owners and 

lessors of premises used for the activity (‘Releasees’), WITH RESPECT TO ANY 

AND ALL INJURY, DISABILITY, DEATH, or loss or damage to person or property 

associated with my presence or participation, WHETHER ARISING FROM THE 

NEGLIGENCE OF THE RELEASEES OR OTHERWISE, to the fullest extent 

permitted by law. 

 5. Releasor expressly agrees that this release, waiver, and indemnity agreement is 

intended to be as broad and inclusive as permitted by the laws of the State of Missouri 
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and that if any portion thereof is held invalid, it is agreed that the valid portion shall, not 

withstanding, continue in full legal force and effect.” 

¶ 29 In March 2017, plaintiff filed a response to defendant’s motion, and in April 2017 

defendant filed a reply. Both parties relied on Missouri substantive law when addressing 

defendant’s motion for summary judgment. In April 2017, the trial court also conducted a 

hearing in the matter and entered a written order granting defendant’s motion. Although the 

court’s written order did not specify the basis for its ruling, the court’s oral comments at the 

hearing reflect that it relied upon the Release plaintiff signed at Cross Country. Specifically, it 

stated as follows: 

“Based upon the Release and without going to what is otherwise, I think a factual 

question, I think the Release in and of itself is sufficient to provide a basis for 

[defendant’s] Motion for Summary Judgment. It identifies itself as a release. It 

specifically tells the person who’s signing it to sign it and [plaintiff] sign[ed] not only 

for herself, but for her underage children. It says ‘please read this before you sign it[.’] 

It specifically addresses other participants. That’s as strong of language as you can get. 

So based *** on that, and that alone, the court’s [going to] grant the Motion for 

Summary Judgment.” 

¶ 30 This appeal followed. 

¶ 31 II. ANALYSIS 

¶ 32 A. Statutory Designation for Motion to Dismiss 

¶ 33 On appeal, plaintiff first argues the trial court erred in granting defendant’s motion to 

dismiss count I of her complaint, alleging a violation of the Animal Control Act, because it was 

brought under the wrong section of the Code. She notes defendant sought dismissal of count I 

pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2014)) but argues that, 

because defendant’s motion “raised an affirmative, factual defense,” it should have been 

brought pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2014)). 

¶ 34 “A section 2-615 motion to dismiss challenges the legal sufficiency of a complaint based 

on defects apparent on its face.” Bueker v. Madison County, 2016 IL 120024, ¶ 7, 72 N.E.3d 

269. “The only matters to be considered in ruling on such a motion are the allegations of the 

pleadings themselves.” Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 485, 639 N.E.2d 1282, 

1289 (1994). Conversely, “[a] motion to dismiss under section 2-619 [citation] admits the legal 

sufficiency of the plaintiff’s claim, but asserts certain defects or defenses outside the pleading 

that defeat the claim.” In re Scarlett Z.-D., 2015 IL 117904, ¶ 20, 28 N.E.3d 776. Where 

grounds for dismissal do not appear on the face of the complaint, the section 2-619 motion 

must be supported by affidavit. 735 ILCS 5/2-619(a) (West 2014). 

¶ 35 As noted, defendant sought dismissal of count I of plaintiff’s complaint, arguing Missouri 

law applied to the parties’ conflict and, as a result, plaintiff’s claim asserting liability based 

solely on an Illinois statute—the Animal Control Act—could not stand. Defendant brought her 

motion under section 2-615 of the Code, and as stated, plaintiff argues defendant should have 

designated section 2-619. 

¶ 36 Here, it appears defendant labeled her motion to dismiss count I with the wrong statutory 

section. Section 2-619(a)(9) of the Code provides for dismissal where “the claim asserted 

against defendant is barred by other affirmative matter avoiding the legal effect of or defeating 
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the claim.” 735 ILCS 5/2-619(a)(9) (West 2014). “Affirmative matter” has been held to 

include “the basic issue as to which state’s law is to apply to the action.” Ingersoll v. Klein, 106 

Ill. App. 2d 330, 336, 245 N.E.2d 288, 291 (1969), aff’d, 46 Ill. 2d 42, 262 N.E.2d 593 (1970); 

see also Illinois Graphics, 159 Ill. 2d at 487 (citing Ingersoll, 46 Ill. 2d at 42, for the 

proposition that a choice-of-law defense had “been considered ‘affirmative matter’ so as to 

negate completely the asserted claim”). 

¶ 37 Additionally, our supreme court has acknowledged that the conflict-of-law methodology 

“may raise factual issues.” Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147, 154, 879 

N.E.2d 893, 898 (2007). Such factual issues are properly considered and addressed in the 

context of a section 2-619 motion to dismiss, where a trial court may consider pleadings, 

depositions, and affidavits when making its ruling (Zedella v. Gibson, 165 Ill. 2d 181, 185, 650 

N.E.2d 1000, 1002 (1995)), rather than in the context of section 2-615 motion, where only the 

pleadings may be considered (Illinois Graphics, 159 Ill. 2d at 485). 

¶ 38 Nevertheless, even if defendant improperly labeled her motion to dismiss count I, no 

reversible error occurred. We note plaintiff failed to object to the statutory designation in 

defendant’s motion to dismiss. Thus, she has forfeited her challenge to that designation on 

appeal. American National Bank & Trust Co. v. City of Chicago, 192 Ill. 2d 274, 280, 735 

N.E.2d 551, 554 (2000). Moreover, setting plaintiff’s forfeiture aside, we note that a 

defendant’s error in labeling a motion to dismiss is not fatal where the nonmoving party has 

suffered no prejudice. Wallace v. Smyth, 203 Ill. 2d 441, 447, 786 N.E.2d 980, 984 (2002). In 

this instance, plaintiff acknowledges that the trial court allowed the choice-of-law issue to be 

“fleshed out” through the discovery process. Further, the record shows the issue was given full 

and thorough consideration by the trial court. Thus, plaintiff had a sufficient opportunity to be 

heard, and we find no reversible error. 

¶ 39 B. Choice-of-Law Determination 

¶ 40 Plaintiff next argues the trial court erred in finding Missouri law applied to the parties’ 

conflict. She contends that a choice-of-law analysis and the facts applicable to that analysis 

support the conclusion that Illinois has a more significant relationship to her cause of action. 

¶ 41 Initially, we note that a de novo standard of review applies to this issue. Such a standard is 

applicable on review of a dismissal under either section 2-615 or 2-619 of the Code. Patrick 

Engineering, Inc. v. City of Naperville, 2012 IL 113148, ¶ 31, 976 N.E.2d 318. Additionally, 

we apply a de novo standard when reviewing a trial court’s choice-of-law determination. 

Townsend, 227 Ill. 2d at 154. 

¶ 42 “A choice-of-law determination is required only when a difference in law will make a 

difference in the outcome.” Id. at 155. Thus, “a choice-of-law analysis begins by isolating the 

issue and defining the conflict.” Id. Here, the parties agree that conflicts exist between 

Missouri and Illinois law. Notably, they identify Missouri’s lack of a statute that is equivalent 

to the Illinois Animal Control Act. If Illinois law applies, claimant can maintain the cause of 

action alleged in count I of her complaint, which is based on that Illinois statute; however, if 

Missouri law applies, count I of her complaint must be dismissed as it would state no cause of 

action upon which relief could be granted under Missouri law. Thus, we agree that a conflict 

exists that will result in a difference in outcome. 

¶ 43 Next, when making a choice-of-law determination, “the forum court applies the 

choice-of-law rules of its own state.” Id. Illinois has adopted the choice-of-law analysis 
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contained in the Restatement (Second) of Conflict of Laws (1971) (Second Restatement). 

Townsend, 227 Ill. 2d at 163-64. Under the Second Restatement, a presumption exists in favor 

of applying the law of the state where the injury occurred. Id. at 163. The presumption “may be 

overcome only by showing a more or greater significant relationship to another state.” 

(Emphases in original.) Id. Specifically, section 146 of the Restatement provides as follows: 

“In an action for a personal injury, the local law of the state where the injury 

occurred determines the rights and liabilities of the parties, unless, with respect to the 

particular issue, some other state has a more significant relationship under the 

principles stated in [the Second Restatement] to the occurrence and the parties, in 

which event the local law of the other state will be applied.” Restatement (Second) of 

Conflict of Laws § 146 (1971). 

¶ 44 Once a court chooses the presumptively applicable law, it “tests” its choice against various 

“principles” and “contacts” as set forth in sections 6 and 145 of the Second Restatement. 

Townsend, 227 Ill. 2d at 164. Section 6(2) sets forth the following relevant factors for 

consideration: 

“(a) the needs of the interstate and international systems, 

 (b) the relevant policies of the forum, 

 (c) the relevant policies of other interested states and the relative interests of those 

states in the determination of the particular issue, 

 (d) the protection of justified expectations, 

 (e) the basic policies underlying the particular field of law, 

 (f) certainty, predictability and uniformity of result, and 

(g) ease in the determination and application of the law to be applied.” Restatement 

(Second) of Conflict of Laws § 6(2) (1971). 

¶ 45 Additionally, section 145(2) sets forth the following “[c]ontacts to be taken into account in 

applying the principles of [section] 6”: 

“(a) the place where the injury occurred,

 (b) the place where the conduct causing the injury occurred, 

 (c) the domicil, residence, nationality, place of incorporation and place of business 

of the parties, and 

(d) the place where the relationship, if any, between the parties is centered.” 

Restatement (Second) of Conflict of Laws § 145(2) (1971). 

The contacts set forth in section 145(2) “are to be evaluated according to their relative 

importance with respect to the particular issue.” Id.

¶ 46 Practically, it makes no difference whether a court first considers the section 145(2) 

contacts or the section 6(2) general principles. Townsend, 227 Ill. 2d at 168. “In either case[,] 

the Second Restatement’s goal is the same—to ensure that a court is not merely ‘counting 

contacts,’ and that each contact is meaningful in light of the policies sought to be vindicated by 

the conflicting laws.” Id. 

¶ 47 Here, plaintiff was kicked by defendant’s horse while on a trail ride in Missouri. Thus, 

Missouri is “the state where the injury occurred,” and a presumption exists in favor of applying 

Missouri law unless, as plaintiff argues, Illinois has a more significant relationship to the 

occurrence and the parties. In testing this presumption, we first consider relevant “contacts” as 
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set forth in section 145(2) of the Restatement. 

¶ 48 1. Section 145 Contacts

¶ 49 The first contact for consideration is the place where the injury occurred. Restatement 

(Second) of Conflict of Laws § 145(2)(a) (1971). As discussed, plaintiff was kicked by 

defendant’s horse in Missouri, and thus, that is where her injury occurred. Plaintiff maintains 

this factor is of minimal importance because the location of her injury was merely fortuitous in 

that the incident could just as easily have occurred in Illinois. To support her argument, 

plaintiff cites cases with fact scenarios that involve interstate travelers and motor vehicle 

accidents, which courts have determined could just as easily have occurred in another state. 

Murphy v. Mancari’s Chrysler Plymouth, Inc., 408 Ill. App. 3d 722, 727-28, 948 N.E.2d 233, 

238 (2011); Miller v. Hayes, 233 Ill. App. 3d 847, 852, 600 N.E.2d 34, 38 (1992); Schulze v. 

Illinois Highway Transportation Co., 97 Ill. App. 3d 508, 510-11, 423 N.E.2d 278, 280 (1981). 

¶ 50 Specifically, in Murphy, 408 Ill. App. 3d at 723, the plaintiffs were Illinois residents who 

brought suit against an Illinois automobile dealer that sold them a vehicle after one of the 

plaintiffs was injured in a motor vehicle accident in Michigan. The trial court determined 

Michigan law applied to the liability and damages issues in the case, and the plaintiffs 

appealed. Id. at 724. 

¶ 51 On review, the First District noted that, in the context of a choice-of-law analysis, 

“situations may exist where the place of injury is merely fortuitous and, therefore, not an 

important contact.” Id. at 727. In the case before it, the court found that the injured plaintiff’s 

presence in Michigan was not fortuitous because “[h]e was purposefully and voluntarily in 

Michigan, driving to his weekend home with the intention of staying there for several days.” 

Id. However, it also determined that a purposeful presence in Michigan did not mean that the 

accident “could not have happened in Michigan fortuitously.” Id. It pointed out that the cause 

of the accident had not been determined and “[t]he same type of accident and the same type of 

injuries could have just as easily happened in Illinois.” Id. at 727-28. Thus, the court concluded 

the place of injury was not an important consideration in the context of the case before it. Id. at 

728. 

¶ 52 Defendant argues Murphy is distinguishable from the present case, and we agree. Notably, 

this case does not involve a motor vehicle accident that happened by chance in one state versus 

another. Instead, plaintiff’s injury occurred at the planned destination of both parties. The 

specific location, Cross Country, focused on horseback riding activities in which both parties 

planned to engage. Additionally, both plaintiff and defendant had previously visited Cross 

Country on multiple occasions. 

¶ 53 We note comment e of section 145 provides as follows: 

“In the case of personal injuries or of injuries to tangible things, the place where the 

injury occurred is a contact that, as to most issues, plays an important role in the 

selection of the state of the applicable law [citation]. *** This is so for the reason 

among others that persons who cause injury in a state should not ordinarily escape 

liabilities imposed by the local law of that state on account of the injury. *** 

 Situations do arise, however, where the place of injury will not play an important 

role in the selection of the state of the applicable law. This will be so, for example, 

when the place of injury can be said to be fortuitous or when for other reasons it bears 
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little relation to the occurrence and the parties with respect to the particular issue 

***.” (Emphasis added.) Restatement (Second) of Conflict of Laws § 145 cmt. e 

(1971). 

Under the facts of this case, we cannot say that the place of injury bears little relation to the 

occurrence or the parties. This is particularly true in light of the underlying issues presented in 

plaintiff’s complaint, which almost exclusively involve the parties’ behavior and conduct 

while horseback riding at Cross Country in Missouri. Therefore, we find this contact weighs in 

favor of applying Missouri law. 

¶ 54 The next contact for consideration is the place where the conduct causing the plaintiff’s 

injury occurred. Restatement (Second) of Conflict of Laws § 145(2)(b) (1971). An analysis of 

injury-causing conduct “includes all conduct from any source contributing to the injury,” 

including a defendant’s affirmative defenses or allegations of contributory negligence. 

Townsend, 227 Ill. 2d at 169. 

¶ 55 Here, plaintiff acknowledges that, relative to count I, this factor favors application of 

Missouri law because “the place where the conduct causing the injury occurred would be the 

place where the animal caused injury without provocation.” She asserts, however, that she 

alleged injury-causing conduct that occurred in both Illinois and Missouri in connection with 

count II and thus, this factor must be “deemed a wash.” We disagree. 

¶ 56 In count II, plaintiff asserted defendant was negligent for failing to warn plaintiff of the 

horse’s violent propensity to kick, failing to properly train her horse, riding the horse too close 

to plaintiff, and failing to adhere to industry and practice norms while riding her horse. All but 

one of these alleged actions or inactions by defendant occurred exclusively in Missouri. 

Additionally, defendant has argued that plaintiff expressly assumed the risks associated with 

horseback riding at Cross Country and points to the Release plaintiff signed in Missouri. Given 

that the vast majority of relevant conduct occurred in Missouri, we find this factor weighs in 

favor of applying Missouri law to the parties’ conflict. 

¶ 57 The third contact for consideration is “the domicil, residence, nationality, place of 

incorporation and place of business of the parties.” Restatement (Second) of Conflict of Laws 

§ 145(2)(c) (1971). Here, both parties are Illinois residents and neither disputes that this factor 

weighs in favor of applying Illinois law. 

¶ 58 The final contact for consideration is “the place where the relationship, if any, between the 

parties is centered.” Restatement (Second) of Conflict of Laws § 145(2)(d) (1971). In this 

instance, the parties’ relationship primarily arose from having a group of mutual friends in 

Illinois and engaging in horseback riding activities within that group. Plaintiff and defendant 

were riding horses together in Missouri at the time of the incident at issue but had previously 

ridden horses together in Illinois. Ultimately, we find this contact favors applying Illinois law, 

as most of the parties’ interactions occurred within this state. 

¶ 59 Here, the section 145(2) contacts are evenly split, with two favoring application of 

Missouri law and two favoring Illinois law. However, as noted, the 145(2) contacts “are to be 

evaluated according to their relative importance with respect to the particular issue.” 

Restatement (Second) of Conflict of Laws § 145(2) (1971). In this case, the fact that the parties 

interacted with one another more frequently in Illinois has little to do with the issues presented 

by either count I or count II of plaintiff’s complaint. Thus, we find the fourth factor set forth in 

section 145(2) is only minimally important to the underlying proceedings. As a result, the 

section 145(2) contacts, when considered alone, support rather than rebut the presumption in 
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favor of applying Missouri law. This does not end our analysis, however, and we must also 

consider the principles set forth in section 6 of the Second Restatement. 

¶ 60 2. Section 6 Principles

¶ 61 As noted, section 6(2) of the Second Restatement sets forth the following principles for 

consideration when conducting a choice-of-law analysis: 

“(a) the needs of the interstate and international systems,

 (b) the relevant policies of the forum, 

 (c) the relevant policies of other interested states and the relative interests of those 

states in the determination of the particular issue, 

 (d) the protection of justified expectations, 

 (e) the basic policies underlying the particular field of law, 

 (f) certainty, predictability and uniformity of result, and 

(g) ease in the determination and application of the law to be applied.” Restatement 

(Second) of Conflict of Laws § 6(2) (1971). 

In this case, a detailed analysis of all seven section 6 principles is unnecessary because the 

principles set forth in sections 6(2)(a), 6(2)(d), and 6(2)(f) are only minimally implicated in a 

personal injury action. Townsend, 227 Ill. 2d at 169-70 (citing Restatement (Second) of 

Conflict of Laws § 145 cmt. b, at 415-16 (1971)). Therefore, we confine our analysis to the 

remaining section 6 principles. Id. at 170. 

¶ 62 As stated, the parties agree that Illinois law conflicts with Missouri law based upon the 

existence of the Animal Control Act in Illinois and the lack of an equivalent Missouri statute. 

Initially, we consider this conflict in light of the relevant policies of Illinois (section 6(2)(b)), 

the relevant policies of Missouri and the relative interest of Missouri in the determination of 

the issue (section 6(2)(c)), and the basic policies underlying the particular field of law (section 

6(2)(e)). 

¶ 63 Under the Animal Control Act, “[i]f a dog or other animal, without provocation, attacks, 

attempts to attack, or injures any person who is peaceably conducting himself or herself in any 

place where he or she may lawfully be, the owner of such dog or other animal is liable in civil 

damages to such person for the full amount of the injury proximately caused thereby.” 510 

ILCS 5/16 (West 2014). Our supreme court has described the history behind the Animal 

Control Act and interpreted its provisions as follows: 

“The original version of this statute was passed in 1949 and applied only to dogs. 

[Citation.] The apparent purpose of the legislation was modest: to reduce the burden on 

dog-bite plaintiffs by eliminating the ‘one-bite rule’—the common law requirement 

that a plaintiff must plead and prove that a dog owner either knew or was negligent not 

to know that his dog had a propensity to injure people. [Citation.] 

Enacting the Animal Control Act in 1973, the legislature amended this ‘dog-bite 

statute’ to cover ‘other animals.’ ***

 *** [W]e believe that the legislature intended only to provide coverage under the 

statute for plaintiffs who, by virtue of their relationship to the owner of the dog or other 

animal or the lack of any such relationship, may not have any way of knowing or 

avoiding the risk that the animal poses to them. This interpretation is consistent with 
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the emphasis the statute places on lack of provocation and plaintiff’s peaceable conduct 

in a place in which he is legally entitled to be.” Harris v. Walker, 119 Ill. 2d 542, 

546-47, 519 N.E.2d 917, 918-19 (1988). 

In Harris, the supreme court held the Animal Control Act was inapplicable to circumstances 

“where a person rents a horse and understands and expressly accepts the risks of using the 

horse.” Id. at 547-48; Johnson v. Johnson, 386 Ill. App. 3d 522, 535, 898 N.E.2d 145, 159 

(2008) (“[T]he common law defense of assumption of the risk has been recognized as a valid 

affirmative defense to an action brought pursuant to the Animal Control Act.”).

¶ 64 As indicated by the parties, Missouri does not have a comparable statute. See Mo. Ann. 

Stat. § 273.036 (West 2014) (providing for strict liability in the event of dog bites but not 

applying to other animals). However, it has enacted the Equine Liability Act, for the purpose of 

codifying “the common law assumption of risk principle in the context of a specific 

recreational activity.” Frank v. Mathews, 136 S.W.3d 196, 202 (Mo. Ct. App. 2004). That Act 

limits liability for injuries resulting from the inherent risks associated with equine activities, 

providing as follows: 

“[A]n equine activity sponsor, an equine professional, *** any employee thereof, or 

any other person or corporation shall not be liable for an injury to or the death of a 

participant resulting from the inherent risks of equine *** activities and, *** no 

participant or a participant’s representative shall make any claim against, maintain an 

action against, or recover from an equine activity sponsor, an equine professional, *** 

any employee thereof, or any other person from injury, loss, damage or death of the 

participant resulting from any of the inherent risks of equine or livestock activities.” 

(Emphases added.) Mo. Ann. Stat. § 537.325(2) (West 2014). 

Under the Equine Liability Act, an “equine activity” includes “[r]ides *** sponsored by an 

equine activity sponsor.” Id. § 537.325(3)(e). Further, an “equine activity sponsor” includes a 

group or corporation that “sponsors, organizes[,] or provides the facilities for, an equine 

activity.” Id. § 537.325(4). The Equine Liability Act does not relieve covered individuals 

“from any duty that common law negligence principles impose upon them.” Frank, 136 

S.W.3d at 203. 

¶ 65 Finally, we note that, although not significantly addressed by either party, Illinois has also 

adopted an Equine Activity Liability Act (Illinois Equine Act) (745 ILCS 47/1 et seq. (West 

2014)). The legislature has set forth the purpose of the Illinois Equine Act as follows: 

“The General Assembly recognizes that persons who participate in equine activities 

may incur injuries as a result of the risks involved in those activities. The General 

Assembly also finds that the State and its citizens derive numerous economic and 

personal benefits from equine activities. Therefore, it is the intent of the General 

Assembly to encourage equine activities by delineating the responsibilities of those 

involved in equine activities.” 745 ILCS 47/5 (West 2014). 

The Fifth District of this court has noted that equine activity liability acts “have been enacted in 

more than 40 states since the mid-1980s” and are intended “to promote equine activities and 

the horse industry in general by limiting liability for some horse-related activities.” Smith v. 

Lane, 358 Ill. App. 3d 1126, 1128-29, 832 N.E.2d 947, 950 (2005). 

¶ 66 Here, plaintiff argues the policy behind the Animal Control Act “is more significant within 

the context of injuries by animals than the purpose of the Missouri Equine Liability Act.” We 
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cannot agree. Clearly, Illinois has a policy, by way of the Animal Control Act, of protecting 

individuals who come into contact with an animal and are unable to appreciate or avoid the 

risks posed by the animal. However, both Missouri and Illinois have acknowledged that special 

circumstances exist with respect to horses and equine-related activities. Like Missouri law, 

Illinois law also contemplates that certain inherent risks are associated with equine activities 

like the sort of activity engaged in by the parties in this case. Both states have a policy of 

promoting equine activities and limiting liability associated with those activities. Both states 

also take into account assumption of risk principles with respect to horse-related injuries, even 

in the context of the Animal Control Act. Given these circumstances, we fail to see how Illinois 

policies are any “more significant” than those behind relevant Missouri law. Rather, both states 

appear to have similar policies and interests relative to injuries caused by horse-related 

activities. 

¶ 67 In addressing the relevant policies and interests of both Illinois and Missouri, plaintiff also 

argues that Illinois has a significant interest in providing tort remedies to its injured citizens. 

She cites Esser v. McIntyre, 169 Ill. 2d 292, 300, 661 N.E.2d 1138, 1142 (1996), wherein the 

supreme court held that “[h]aving provided a legal means for a plaintiff to recover for injuries 

caused by a defendant’s culpable conduct, Illinois has a strong interest in providing that 

remedy in disputes between Illinois residents.” In so holding, the court noted that under the law 

of the place of injury in that case—Mexico—Illinois’s interest would be circumvented because 

the plaintiff had no remedy against the defendant. Id. In fact, the parties had agreed that the 

plaintiff had no cause of action against the defendant under Mexican law. Id. at 297. The same 

cannot be said in this case, as plaintiff has a potential remedy under Missouri law in the form of 

a negligence cause of action. Further, we note that Missouri has a competing interest in having 

its laws apply to equine-related activities that occur within its borders. 

¶ 68 Ultimately, we disagree with plaintiff that the policies and interests relevant to this matter 

weigh in favor of applying Illinois law. Therefore, plaintiff does not overcome the presumption 

in favor of applying Missouri law. 

¶ 69 On review, plaintiff also addresses the principle relating to the “ease in the determination 

and application of the law to be applied.” Restatement (Second) of Conflict of Laws § 6(2)(g) 

(1971). She maintains that because Illinois law is more advantageous to her claim, this 

principle weighs in favor of applying Illinois law. However, we agree with defendant that the 

purpose of section 6(2)(g) is to consider whether the competing laws are “simple and easy to 

apply” rather than which law is most beneficial to plaintiff. See Restatement (Second) of 

Conflict of Laws § 6 cmt. j (1971). 

¶ 70 Relative to this principle, we note that the Illinois Equine Act may be applied to preempt 

the Animal Control Act in certain situations. See Carl v. Resnick, 306 Ill. App. 3d 453, 458-59, 

714 N.E.2d 1, 5 (1999) (stating the Illinois Equine Act would bar actions in which the plaintiff 

was engaged in an “ ‘equine activity’ ” that would have previously been permitted under the 

Animal Control Act); Smith, 358 Ill. App. 3d at 1134 (stating that “had the [Illinois] Equine 

Act applied to the facts of the case, preemption would have barred an action for the same 

alleged injuries under the Animal Control Act”). However, the Illinois Equine Act has also 

been found to be “unclear as to whether it was meant to limit the liability of persons other than 

equine activity sponsors and equine professionals,” i.e., persons like defendant in this case. 

Kush v. Wentworth, 339 Ill. App. 3d 157, 165, 790 N.E.2d 912, 918 (2003). In Kush, the 

Second District of this court criticized the Illinois Equine Act for containing inconsistencies 
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and “obvious drafting error,” as well as provisions that could lead to absurd results. Id. at 

162-63. Given the lack of clarity of this state’s equine activity liability act, we must find that 

consideration of whether the competing laws are “simple and easy to apply” also weighs in 

favor of applying Missouri law. 

¶ 71 As discussed, a presumption exists in this case in favor of applying the Missouri law to the 

parties’ conflict. We find nothing in either the parties’ arguments or our review of the Second 

Restatement’s relevant contacts and principles for consideration that overrides that 

presumption. Thus, we find no error in the trial court’s finding that Missouri law applies to the 

underlying controversy. 

¶ 72 In so holding, we note that plaintiff suggests it is unclear from the underlying proceedings 

whether the trial court’s choice-of-law ruling was as to both counts of her complaint. We 

disagree. The court’s order referred generally to “the litigation” or “the conflict” when holding 

Missouri law was applicable, and nothing in its orders indicates that its ruling was limited to 

only count I. Further, as plaintiff acknowledges, both parties proceeded as if Missouri law 

applied to count II by citing substantive law from that state in connection with filings related to 

defendant’s motion for summary judgment. Therefore, we find plaintiff’s assertion that the 

record is somehow unclear is without merit. 

¶ 73 C. Motion for Summary Judgment 

¶ 74 On appeal, plaintiff next argues the trial court erred in granting defendant’s motion for 

summary judgment as to count II of her complaint. “Summary judgment is properly granted 

when the pleadings, depositions, admissions, and affidavits on file, viewed in the light most 

favorable to the nonmoving party, show that there is no genuine issue of material fact and that 

the moving party is entitled to judgment as a matter of law.” Village of Bartonville v. Lopez, 

2017 IL 120643, ¶ 34, 77 N.E.3d 639. “If the plaintiff fails to establish any element of the 

cause of action, summary judgment for the defendant is proper.” Williams v. Manchester, 228 

Ill. 2d 404, 417, 888 N.E.2d 1, 9 (2008). The trial court’s summary judgment ruling is subject 

to de novo review. Schweihs v. Chase Home Finance, LLC, 2016 IL 120041, ¶ 48, 77 N.E.3d 

50. 

¶ 75 To obtain relief in a negligence cause of action, “ ‘the plaintiff must establish that (1) the 

defendant had a duty to the plaintiff; (2) the defendant failed to perform that duty; and (3) the 

defendant’s breach was the proximate cause of the plaintiff’s injury.’ ” Peters v. Wady 

Industries, Inc., 489 S.W.3d 784, 793 (Mo. 2016) (quoting Martin v. City of Washington, 848 

S.W.2d 487, 493 (Mo. 1993)). In this case, both before the trial court and on appeal, defendant 

has argued that plaintiff cannot establish that defendant owed her a duty based on the Release 

plaintiff signed at Cross Country. The trial court’s oral ruling reflects that it agreed with this 

argument and granted summary judgment in defendant’s favor. For the reasons that follow, we 

also agree that plaintiff signed a valid and enforceable release of liability and expressly 

assumed the risks associated with the underlying horseback riding activities. 

¶ 76 Under the “assumption of the risk doctrine” a person who “voluntarily consents to accept 

the danger of a known and appreciated risk[ ] *** may not sue another for failing to protect 

him from it.” Coomer v. Kansas City Royals Baseball Corp., 437 S.W.3d 184, 191 (Mo. 2014). 

An express assumption of risk is the simplest application of the doctrine and “recognizes that, 

when a plaintiff makes an express statement that he is voluntarily accepting a specified risk, 

the plaintiff is barred from recovering damages for an injury resulting from that risk.” Id. An 
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express assumption of risk “most often involves a written waiver or release by the would-be 

plaintiff.” Id. Further, “in an ‘express assumption of the risk’ case, the plaintiff’s consent 

relieves the defendant of any duty to protect the plaintiff from injury.” Id. at 193. 

¶ 77 “Although exculpatory clauses in contracts releasing an individual from his or her own 

future negligence are disfavored, they are not prohibited as against public policy.” Alack v. Vic 

Tanny International of Missouri, Inc., 923 S.W.2d 330, 334 (Mo. 1996). “[C]ontracts 

exonerating a party from acts of future negligence are to be ‘strictly construed against the party 

claiming the benefit of the contract, and clear and explicit language in the contract is required 

to absolve a person from such liability.’ ” Id. (quoting Hornbeck v. All American Indoor 

Sports, Inc., 898 S.W.2d 717, 721 (Mo. Ct. App. 1995)). Missouri law requires “clear, 

unambiguous, unmistakable, and conspicuous language in order to release a party from his or 

her own future negligence,” and “[g]eneral language will not suffice.” Id. at 337. “ ‘The words 

“negligence” or “fault” or their equivalents must be used conspicuously so that a clear and 

unmistakable waiver and shifting of risk occurs. There must be no doubt that a reasonable 

person agreeing to an exculpatory clause actually understands what future claims he or she is 

waiving.’ ” Holmes v. Multimedia KSDK, Inc., 395 S.W.3d 557, 560-61 (Mo. Ct. App. 2013) 

(quoting Alack, 923 S.W.2d at 337-38). 

¶ 78 Additionally, “[o]nly parties to a contract and any third-party beneficiaries of a contract 

have standing to enforce that contract.” Verni v. Cleveland Chiropractic College, 212 S.W.3d 

150, 153 (Mo. 2007). To be deemed a third-party beneficiary, the terms of the contract must 

clearly express intent to benefit the third party or an identifiable class of which the third party 

is a member. Id. When an express declaration of intent is lacking, a strong presumption exists 

“ ‘that the third party is not a beneficiary and that the parties contracted to benefit only 

themselves.’ ” Id. (quoting Nitro Distributing, Inc. v. Dunn, 194 S.W.3d 339, 345 (Mo. 2006)). 

¶ 79 In Missouri, the primary rule of contract interpretation is to determine and give effect to the 

intent of the parties. State ex rel. Pinkerton v. Fahnestock, 531 S.W.3d 36, 44 (Mo. 2017). 

Intent is determined by considering the plain and ordinary meaning of the contract language. 

Id. Each clause in a contract should be read in the context of the contract as a whole, and any 

interpretation that would render a provision meaningless should be avoided. Id. Additionally, 

the parties’ intentions should be “gleaned from the four corners of the contract” unless the 

contract is ambiguous, in which case a court may resort to considering extrinsic evidence. 

Kansas City N.O. Nelson Co. v. Mid-Western. Construction Co. of Missouri, Inc., 782 S.W.2d 

672, 677 (Mo. Ct. App. 1989). 

¶ 80 Additionally, whether a contract is ambiguous presents a question of law. Alack, 923 

S.W.2d at 334. “ ‘An ambiguity arises when there is duplicity, indistinctness, or uncertainty in 

the meaning of the words used in the contract.’ ” Id. at 337 (quoting Rodriguez v. General 

Accident Insurance Co. of America, 808 S.W.2d 379, 382 (Mo. 1991)). 

¶ 81 Here, plaintiff acknowledged signing the Release at issue upon her arrival at Cross 

Country. In fact, she signed three such Releases—one for herself and one for each of the two 

minors who accompanied her. The operative language of the Release is as follows: 

“4. I, for myself and on behalf of my heirs, assigns, personal representatives, and 

next of kin, HEREBY RELEASE, INDEMNIFY, AND HOLD HARMLESS CROSS 

COUNTRY TRAIL RIDE, LLC, officers, officials, agents and/or employees, other 

participants, sponsoring agencies, sponsors, advertisers, and, if applicable, owners and 

lessors of premises used for the activity (‘Releasees’), WITH RESPECT TO ANY 
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AND ALL INJURY, DISABILITY, DEATH, or loss or damage to person or property 

associated with my presence or participation, WHETHER ARISING FROM THE 

NEGLIGENCE OF THE RELEASEES OR OTHERWISE, to the fullest extent 

permitted by law.” (Emphasis added.)

Defendant maintains she was an intended third-party beneficiary of the Release in that she falls 

within the category of “other participants” and, as a result, plaintiff agreed to release her from 

liability for injuries plaintiff sustained while horseback riding at Cross Country, including 

those that occurred due to defendant’s negligence. 

¶ 82 Initially, plaintiff argues the Release fails to clearly express the intent to benefit defendant 

as a third party. To support this contention, she points to her own testimony that she “did not 

even know what she [was] signing” and the lack of testimony from anyone associated with 

Cross Country regarding their intent in entering the contract. Additionally, plaintiff maintains 

the phrase “other participants” is ambiguous and could be reasonably interpreted as a 

“catch-all term” that means “ ‘employees, agents, servants, and/or independent contractors of 

[Cross Country] who perform services which further [its] business’ ” and not, as defendant 

suggests, other paying customers who are similarly situated to plaintiff and defendant. We 

disagree and find the Release is unambiguous and clearly expresses an intent to benefit an 

identifiable class, i.e., “other participants,” of which defendant is a member.

¶ 83 Looking as we must at the four corners of the parties’ agreement, it is clear that “other 

participants” were included within the list of individuals or entities to whom the parties to the 

agreement intended the release of liability to apply. In other words, there was an express intent 

to benefit “other participants” in the Release. Additionally, when looking at the agreement as a 

whole, it is clear that the phrase “other participants” refers to those individuals at Cross 

Country who were similarly situated to plaintiff and defendant, i.e., paying customers or guests 

who were engaging in the activities provided or offered by Cross Country. Although the term 

“participants” is not defined in the Release, as defendant notes, the terms “participate,” 

“participation,” and “participants” are used throughout the document. Their use clearly reflects 

that these words were intended to refer to individuals visiting Cross Country for the purpose of 

engaging in its recreational activities, including horseback riding. The Release provides as 

follows: 

“In consideration of being allowed to participate in any way, including but not limited 

to trail riding, competing, officiating, working for, recreating in any fashion while 

visiting Cross Country Trail Ride, LLC, and its trail ride program, its related events and 

activities, I *** the undersigned, acknowledge, appreciate, and agree that; 

 1. The risk of injury from the activities involved in this program is significant, 

including the potential for permanent paralysis and death, and while particular skills, 

equipment, and personal discipline may reduce the risk, the risk of serious injury does 

exist; and, 

 2. I KNOWINGLY AND FREELY ASSUME ALL SUCH RISKS, both known 

and unknown, EVEN IF ARISING FROM NEGLIGENCE OF THE RELEASEES or 

others, and assume full responsibility for my participation; and, 

 3. I willingly agree to comply with the stated and customary terms of participation. 

If, however, I observe any unusual significant hazard during my presence or 

participation, I will remove myself from participation and bring such to the attention 

of the Company immediately; and, 
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 4. I, for myself and on behalf of my heirs, assigns, personal representatives, and 

next of kin, HEREBY RELEASE, INDEMNIFY, AND HOLD HARMLESS CROSS 

COUNTRY TRAIL RIDE, LLC, officers, officials, agents and/or employees, other 

participants, sponsoring agencies, sponsors, advertisers, and, if applicable, owners and 

lessors of premises used for the activity (‘Releasees’), WITH RESPECT TO ANY 

AND ALL INJURY, DISABILITY, DEATH, or loss or damage to person or property 

associated with my presence or participation, WHETHER ARISING FROM THE 

NEGLIGENCE OF THE RELEASEES OR OTHERWISE, to the fullest extent 

permitted by law.” (Emphases added.)

Additionally, signature lines on the Release required the “PARTICIPANT[’]S SIGNATURE” 

or the signature of a parent or guardian for “PARTICIPANTS OF MINORITY AGE.”

¶ 84 During her own deposition, plaintiff acknowledged that the Release used the phrase “other 

participants” and that she would characterize defendant as “another participant” in the 

activities at Cross Country. We agree and find the language used in the Release is clear and that 

it unambiguously refers to an identifiable class of individuals that includes defendant. 

¶ 85 Plaintiff next argues the Release is deficient because it purported to relieve liability for 

nonreleasable claims, including “intentional torts, gross negligence, and/or activities involving 

the public interest.” She notes language in the Release stated it applied to “THE 

NEGLIGENCE OF THE RELEASEES OR OTHERWISE.” Plaintiff maintains the word 

“otherwise” encompasses those nonreleasable claims and, thus, renders the Release 

duplicitous, indistinct, uncertain, and ambiguous. 

¶ 86 To support her argument, plaintiff relies on Lewis v. Snow Creek, Inc., 6 S.W.3d 388, 394 

(Mo. Ct. App. 1999), involving an exculpatory clause that purported “to shield [a party] from 

‘any claim based on negligence and *** any claim based upon *** other legal theory.’ ” There, 

the reviewing court noted “ ‘there is no question that one may never exonerate oneself from 

future liability for intentional torts or for gross negligence, or for activities involving the public 

interest.’ ” Id. (quoting Alack, 923 S.W.2d at 337). It found that the exculpatory clause before 

it used general language by referencing claims based on “ ‘any *** other legal theory,’ ” 

stating such language included “intentional torts, gross negligence or any other cause of action 

not expressly listed.” Id. Thus, because the contract at issue purported to relieve the respondent 

in the case of all liability but did not actually do so, it was duplicitous, indistinct, uncertain,

and, ultimately, ambiguous. Id.

¶ 87 We find Lewis distinguishable from the present case. The language there was much 

broader than the language of the Release that plaintiff signed. Unlike in this case, the 

exculpatory clause in Lewis expressly referred to legal theories other than negligence. 

Additionally, we note other courts applying Missouri law have suggested that the same 

language that is at issue in this case was sufficiently clear and unambiguous. See Haines v. St. 

Charles Speedway, Inc., 689 F. Supp. 964, 969 (E.D. Mo. 1988) (finding a release was clear 

and unambiguous under Missouri law where it relieved liability for the “negligence of the 

Releasees or otherwise” (internal quotation marks omitted)); Hornbeck v. All American Indoor 

Sports, Inc., 898 S.W.2d 717, 721 (Mo. Ct. App. 1995) (stating language that released claims 

“ ‘whether caused by the negligence of the releasees or otherwise’ ” would “clearly and 

unambiguously encompass[ ] the negligence of the party seeking to enforce the release” 

(quoting Haines, 689 F. Supp. at 969)). In this instance, the Release plaintiff signed used the 

term “negligence” and did not expressly include references to any “other legal theory.” We 
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find the Release was sufficient to notify plaintiff that she was releasing “other participants” in 

trail riding activities at Cross Country from claims arising from the “other participant’s” own 

negligence. See Alack, 923 S.W.2d at 337 (“The exculpatory language must effectively notify 

a party that he or she is releasing the other party from claims arising from the other party’s own 

negligence.”).

¶ 88 Finally, plaintiff also challenges the format of the Cross Country Release. Again, she relies 

on Lewis, wherein the court additionally found the exculpatory clause before it was not 

conspicuous and, thus, insufficient to provide notice of a release of liability for negligence 

claims. Lewis, 6 S.W.3d at 394-95. Specifically, the reviewing court noted the form at issue 

was titled as a “Rental Form” rather than a release, the form’s exculpatory clause was in 

approximately five-point font at the bottom of the form, and the plaintiffs “had to sign the 

Rental Form to receive ski equipment and had to do so while in a line.” Id. 

¶ 89 Again, the present case is distinguishable. Here, the Release documents submitted by the 

parties consisted of two pages. As argued by defendant, the first page was separated into two 

equal parts. The top portion was labeled “Registration Form” and included several blank 

spaces for basic guest information. The bottom portion of the form was labeled “RELEASE 

OF LIABILITY—READ BEFORE SIGINING [sic]” and was separated from the top portion 

of the form by a dotted line. The titles of both documents appear to be in the same font size 

with the title of the Release being entirely capitalized. The release information is not relegated 

to only the bottom portion of the form but, instead, consists of several paragraphs and occupies 

half of the first page. Significant language in the Release is also capitalized for emphasis. The 

second page of the Release documents was similarly divided into two equal parts. However, 

both parts of the second page pertained to Cross Country’s Release. Plaintiff signed the Cross 

Country Release three times, once for herself and once for each of the minors accompanying 

her. Further, we note that although plaintiff claims she did not read the release, she did 

acknowledge that she was required to sign similar documents during previous visits to Cross 

Country. 

¶ 90 Here, we find the Release at issue was unambiguous and conspicuous such that it 

sufficiently informed plaintiff that she was releasing other individuals participating in Cross 

Country’s trail riding activities—including defendant—from claims arising out of their own 

negligence. Plaintiff expressly assumed the risks associated with her horseback riding 

activities at Cross Country and, through the Cross Country Release she signed, relieved 

defendant of any duty to protect her from injury. Given the circumstances presented, the trial 

court committed no error in granting defendant’s motion for summary judgment. 

¶ 91 We note plaintiff has additionally argued on appeal that the trial court erred in granting 

summary judgment in defendant’s favor under Missouri law because defendant’s conduct was 

grossly negligent. She points out that, under Missouri law, “one may never exonerate oneself 

from future liability for intentional torts or for gross negligence, or for activities involving the 

public interest.” Alack, 923 S.W.2d at 337. Further, plaintiff notes that in response to 

defendant’s motion for summary judgment, she made the following argument: “There is a 

genuine issue of material fact as to whether Defendant acted grossly negligent in participating 

in a group trail ride with a sizeable group, including children, on a horse she did not trust, that 

had kicked one person prior, while intoxicated and riding too closely to Plaintiff.” 

¶ 92 In DeCormier v. Harley-Davidson Motor Co. Group, Inc., 446 S.W.3d 668, 671 (Mo. 

2014), the Missouri Supreme Court stated that it would “enforce exculpatory agreements to 
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protect a party from liability for their own negligence” and a plaintiff could not “avoid this rule 

by alleging [a defendant was] grossly negligent because Missouri courts do not recognize 

degrees of negligence at common law.” Thus, it rejected the precise argument plaintiff has 

raised in this case both before the trial court and on appeal. 

¶ 93 As plaintiff notes, Missouri does recognize a separate cause of action for recklessness. Id. 

at 671-72. 

“Conduct is in reckless disregard of another if the actor:

‘[A]ct[s] or fails to do an act which it is [the actor’s] duty to the other to do, 

knowing or having reason to know of facts which would lead a reasonable man to 

realize that the actor’s conduct not only creates an unreasonable risk of *** harm to 

the other but also involves a high degree of probability that substantial harm will 

result to [the other.]’ [Citations.]” Id. at 672. 

“[R]ecklessness is a distinct cause of action from negligence.” Throneberry v. Missouri State 

Highway Patrol, 526 S.W.3d 198, 208 (Mo. Ct. App. 2017). “Recklessness looks to the 

tortfeasor’s state of mind” and “is an aggravated form of negligence which differs in quality, 

rather than in degree, from ordinary lack of care.” Hatch v. V.P. Fair Foundation, Inc., 990 

S.W.2d 126, 139 (Mo. Ct. App. 1999). 

¶ 94 Under the circumstances presented here, plaintiff cannot rely on a claim of recklessness to 

avoid enforceability of the Release, as she did not raise the claim before the trial court. SI 

Securities v. Bank of Edwardsville, 362 Ill. App. 3d 925, 933, 841 N.E.2d 995, 1002 (2005) 

(“Issues not raised in a complaint and points not argued in the trial court are waived on 

appeal.”). 

¶ 95 Additionally, the record reflects defendant raised plaintiff’s signing of the release and its 

express assumption of risk argument as an affirmative defense. In Missouri, “[t]o avoid an 

affirmative defense alleged in an answer, a plaintiff must plead specifically matters of 

affirmative avoidance.” Angoff v. Mersman, 917 S.W.2d 207, 211 (Mo. Ct. App. 1996); see 

also Warren v. Paragon Technologies Group, Inc., 950 S.W.2d 844, 845 (Mo. 1997) (stating 

that “[r]elease is an affirmative defense that must be pled in an answer” and once done requires 

a plaintiff to file a reply if he or she intends to assert an affirmative avoidance). “The plaintiff’s 

reply should distinctly allege the grounds of avoidance,” and “[m]atters of avoidance are not 

available to a party who does not plead them specifically.” Angoff, 917 S.W.2d at 211. “An 

affirmative avoidance is waived if the party raising it has neglected to plead it.” Id. 

¶ 96 Here, plaintiff did not plead a cause of action based on “recklessness” either in her 

complaint or in responding to defendant’s answer and motion for summary judgment. As 

defendant points out, she also did not seek to amend her original pleading to include a claim of 

recklessness. Accordingly, we find plaintiff’s arguments are forfeited and do not preclude 

summary judgment in defendant’s favor.

¶ 97 III. CONCLUSION 

¶ 98 For the reasons stated, we affirm the trial court’s judgment. 

¶ 99 Affirmed.