MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 9 ME 111 Docket: Was

- 18

- 28 Argued : October	11,	2018 Decided: July 11 ,	2019 Panel: SAUFLEY,	C.J.,	and , MEAD, GORMAN, JABAR , HJELM, HUMPHREY, and CLIFFORD , * JJ. Majority: SAUFLEY,	C.J.,	and,	GORMAN,	HJELM,	and	CLIFFORD , JJ. Concur r ence/ Dissent: MEAD,	JABAR,	and	HUMPHREY,	JJ.
NANCY	J.	McCANDLESS

v. JOHN	RAMSEY	et	al.

SAUFLEY , C. J. [¶1] T wenty	 years	 ago, responding	 to	 concerns	 about	 the	 costs	 of providing	 places	 for	 people	 to	 board	 and	 ride	 horses,	 the	 Legislature established	 immunity	 from liability for certain injuries	 suffered	 through	 the risks	 inherent	 in	 equine	 activities. See P.L.	 1999,	 ch.	 498 ,	 §§	 2

- 6 (effective Sept. 18,	 1999)	 (codified	 at	 7 M.R.S.	 §§ 4101 , 4103

- A	 (2018) ) ; L.D.	 2108 , Summary	(119th	Legis.	1999 )

. We	are	asked	for	the	first	time	to	address	the scope	of	that	immunity.

* Although	not	present	at	the	oral	argument,	Justice	Clifford	did	participate	in	the	development	of this	opinion. See M.R.	App.	P.	12(a) (2) (“A	qualified	justice	may	participate	in	a	decision	even	though not	present	at	oral	argument.”).2 [¶ 2 ] Nancy	J.	McCandless	appeals	from	a	summary	judgment	entered	by the	Superior	Court	(Washington	County, Mallonee,	J. ) conclu d ing	that John and Tracy Ramsey ’s	daughter	is immune	from	liability on	McCandless’s	complaint alleging that	 the	child	negligently	 rode a	horse	in	an	arena,	causing	injury	 to McCandless. We	 affirm	 the Superior	 Court’s judgment holding	 that	 the immunity	 statute preclude s	 the liability	 that c ould	 otherwise	 arise	 from the equine	activities	at	issue	here

. I.		BACKGROUND [¶ 3 ] The	basic	facts	are	these: McCandless	was	standing	on	a	track	inside a	 riding	 arena	 when	 a	 horse ridden	 by the	 Ramseys’ ten
- year - old daughter , after	passing	directly	by	McCandless	three	times,	made	contact	with	her	during a	fourth	circuit.		McCandless	fell and injured her	wrist,	and	she	has	now	sued the	child through	her parents , seeking damages for her injuries. [¶ 4 ]	 	 The	 following details	 of	 the	 event are	 taken	 from	 the	 parties’ statements	of	material	fact s and	reflect	the	record	as	viewed	in	the	light most favorable	 to	McCandless	as	 the	nonprevailing	party. See	Avis	Rent A Car	Sys., LLC	v.	Burrill ,	2018	ME	81,	¶	2,	187	A.3d	583.		On	July	7,	2010,	McCandless went to	a	horse	arena	to	watch	children	ride	horses.		In	the	arena,	a	circular	track	one

to	two inches	deep	had	been	worn	in to	the	dirt and	was	visible	to	onlookers.3 Horses	were	not	restricted	to	this	track,	however,	and	they	rode	throughout	the arena	and	near	the	doors	to	the	barn	in	which	the	arena	was	situated

. [¶ 5 ]		Spectators	were	accommodated in	 t he	interior	of	 the	barn ,	which included	an	 observation	 room	with	a p lexigla s s	window where people	could observe	the activities inside	the	structure. McCandless had	been sitting outside of	 the	 observation	 room in one	 of	 a	 set	 of folding	chairs that	wer e	 arranged along	the	side	of	the	indoor	arena away	from	the	horses

. [¶ 6 ] McCandless got	up	from	her seat and began	walking	from	the	folding chairs	toward	what	she	considered	to	be	the	most	convenient	barn	exit. On	her
way ,	 McCandless	 walk ed around	 some hay	 bales,	 which	 McCandless admits caused	her	to	walk	in	the	area	where people	rode	horses

. [¶ 7 ] The Ramsey s’ daughter ,	then	ten	years	old,	was	riding	a	horse she had	 not	 ridden	 before in	 the	 indoor	 arena	 area. The	 girl completed	 three
circuits in the	arena,	passing	McCandless and	others each	time.		At	some	point during	her	fourth	circuit in the	arena, the horse	was	slow	to	respond	to the	child rider’s directions,	and	the horse made	contact with McCandless when	she was between	five	and	fifteen	feet from	the	barn	door

. McCandless	fell	and	injured her	wrist.4 [¶ 8 ] O n	July	6,	2016,	McCandless	filed	a	complaint against the Ramsey s “as	 parents”	 of	 their	 daughter seeking	 damages	 for	 medical	 bills,	 pain	 and suffering,	lost	enjoyment	of	life,	and	permanent	impairment	allegedly	incurred due	 to the Ramseys ’ daughter’s negligence. See M.R.	 Civ.	 P.	 17(b); Miller	 v. Miller ,	677	A.2d	64,	67	(Me.	1996); see	also 19

- A	M.R.S .	§	1651	(2018). 1 The Ramsey s moved for	 summary	 judgment	 on	 the	 ground	 that	 McCandless’s negligence	 action	 was	 barred due	 to the statutory	 immunity provisions	 of
7 M.R.S.	§§	4101 and 4103

- A. [¶ 9 ]	 	 The	 court	 granted the Ramsey s’ motion	 for	 summary	 judgment, holding	 that	 section	 4103

- A(1)	 provides	 a	 broad	immunity from liability	 for injuries	 arising	 out	 of	 equine	 activities under	 routine	 conditions

. The	 court conclude d that none of the	statutory	exceptions	 to	immunity	applied. S ee id. § 4103

- A (2)

- (4). McCandless	 filed	 a	 timely	 notice	 of	 appeal. See 14	 M.R.S. § 1851	(201 8 );	M.R.	App.	P.	2A,	2B(c)(1).
II.		DISCUSSION [¶1 0 ] F or	 purposes	 of	 summary	judgment, we	 accept	 as	 true that the horse came	in contact	with McCandless and	that McCandless	was	injured	as	a

1 There	has	been no	allegation	of	parental	negligence. Cf.	Bedard	v.	Bateman ,	6 6 5	A.2d	214	(Me. 1995).		Nor	has	McCandless	alleged	that	the	Ramseys’	daughter	“willfully	or	maliciously	cause[d]” McCandless’s	injuries. Cf. 14	M.R.S.	§	304	(2018).5 result	 of	 that	contact .		McCandless’s	appeal	concerns	 only whether	 the	court properly	interpreted and	 applied the immunity statutes to preclude	 her	 suit against the Ramsey s ’	daughter

. [¶1 1 ] We	review	this decision	gr anting	a	summary	judgment “ de	novo, viewing	 the	 facts	 in	 the	 light	 most	 favorable	 to	 the	 nonmoving	 party,	 to determine	whether	 the	parties’	statement s of	material	 facts	reveal	a	genuine issue	of	material	fact.” Hilderbrand	v.	Wash.	Cty.	Comm’rs ,	2011	ME	132,	¶	7,	33 A.3d	425.		“A	genuine	issue	of	material	fact	exists	when	the	evidence	requires	a fact

- finder	 to	choose	between	competing	versions	of	 the	 truth.” Farrington’s Owners’	Ass’n	v.	Conway	Lake	Resorts,	Inc. ,	2005	ME	93,	¶	9,	878 A.2d	504. [¶1 2 ] Because	the	person	asserting	the	affirmative	defense	of	immunity bears	the	burden	of	proof, see Hilderbrand , 2011	ME	132,	¶	7,	33	A.3d	425,	we review	 the	 summary	 judgment	 record	 to	 determine	 whether	 there	 is	 no genuine	 issue	 of	 material	 fact	 and t he Ramsey s ha ve established	 the applicability	of	the	immunity	provision	as	a	matter	of	law, see M.R.	Civ.	P.	56(c); Stanley	v.	Hancock	Cty.	Comm’rs ,	2004	ME	157,	¶	13,	864	A.2d	169. [¶1 3 ] We review	de	novo	the	trial	court’s	interpretation	and	application of	 the	relevant	statutes governing	immunity. See	Perry	v.	Dean ,	2017	ME	35, ¶ 11,	156	A.3d	742; Bank	of	Am.,	N.A.	v.	Camire ,	2017	ME	20,	¶ ¶ 12, 13,	155	A.3d6 416

. “ If	 the	statute	is	unambiguous,	we	interpret	 the	statute	according	 to	its unambiguous	language,	unless	the	result	is	illogical	or	absurd.” Wawenock,	LLC v.	Dep’t	of	Transp

. ,	2018	ME	83,	¶	7,	187	A.3d	609	(quotation	marks	omitted). To	the	extent	that	there is	any	ambiguity	in	the	statute ,	meaning that	it	could reasonably be	 interpreted	 in	 more	 than	 one	 way,	 we “ consider	 the	 statute ’ s meaning	in	light	of	its	legislative	history	and	other	indicia	of	legislative	intent.”
Id. (quotation	marks	omitted). [¶1 4 ] Maine’s Legislature	enacted	the immunity	provision s at	issue	here
in	1999. See P.L.	1999,	ch.	498,	§ §	2, 5. W ith	certain	exceptions, the	statute provides that a	person	engaged	in	equine	activity is	immune	from	liab i lity “ for any	property	damage	or	damag es	arising	from	the	personal	injury	or	death	of	a participant	or	spectator	resulting	from	the	inherent	risks	of	equine	activities.” 7	M.R.S.	§	4103

- A(1). [¶1 5 ] McCandless	 concedes	 that the Ramsey s’ daughter was	 a	 person engaged	 in	 equine	 activity	 and that McCandless	 was	 a	 spectator. See id. McCandless argues ,	 however,	 that	 a	 factual	 dispute	 exists	 as	 to	whether	 her injury	resulted	from “the inherent	risk s	of equine	activities. ” Id. Inherent	risks of	equine	activit ies are ,	by	statutory	definition, “ those	dangers	and	conditions7 that	are	an	integral	part	of	equine	activities.” Id. § 4101(7

- A). T hese	dangers and	conditions	include,	but	are	not	limited	to,	the	following:
A. The	propensity	of	an	equine	to	behave	in	ways	that	might	result in	damages	to property	or	injury,	harm	or	death	to	persons	on	or around	 the	 equine.	 	 Such	 equine	 behavior	 includes,	 but	 is	 not limited	 to,	 bucking,	 shying,	 kicking,	 running,	 biting,	 stumbling, rearing,	falling	and	stepping	on;
B. The	unpredictability	 of	an	equine’s	 re action	 to	 such	 things	as sounds,	 sudden	 movements	 and	 unfamiliar	 objects,	 persons	 or other	animals;
C. Certain	hazards	such	as	surface	and	subsurface	conditions;
D. Collisions	with	other	equines	or	objects;	and
E. Unpredictable	 or	 erratic	 actions	 by	 others	 relating	 to	 equine behavior.
Id. 2 [¶1 6 ]		Th e circumstances	that	led	to	McCandless’s	injury epitomize	the type s of risks that are inherent	in	equine	activities

. The danger s or	condition s inherent in equine	activities certainly include	the	danger	of	being	injured when a	horse	and	rider	pass	too	close	to	a	spectator	standing	in	the	track of	a	horse

arena . A horse’s	unanticipated	resistance	to the rider’s	directions	is	part	and

2 Contrary	to	McCandless’ s	contention,	the	dangers	and	conditions	inherent	in	equine	activities relate	to	more	than	just	a	horse’s	potential	to	act	unpredictably. See Zuckerman	v.	Coastal	Camps,	Inc. , 716	F.	Supp.	2d	23,	31	(D.	Me.	2010)	(“[T]he	inherent	risks	to	equine	activitie s	listed	in	the	statute pertain	 to	 the	 unpredictable	 nature	 of	 equine	 behavior,	 the	 unpredictable	 conduct	 of	 other individuals,	and	certain	natural	hazards	.	.	.	.”	(quotation	marks	omitted)).8 parcel	of	the	“propensity	of	an	equine	to	behave	in	ways	that may result	in	.	.	. injury	.	.	.	to	persons	on	or	around	the	equine.” Id. § 4101(7

- A)(A). [¶1 7 ] To	 the	 extent	 that	 there	 is any	 ambiguity ,	 however, we must construe	 the	 statute in	 light	 of the	 legislative	 history. T he	 Legislature ,	 in enacting	the	immunity	provision, “revise[d]	the	equine	activity	laws	to	confirm that	there	are	inherent	risks	involved	in	equine	activities	that	are	impracticable or	impossible	to	eliminate	due	to	the	nature	of equines.”		L.D.	2108 , Summary (119th	 Legis.	 1999).	 	 The	 Committee	 on	 Agriculture,	 Conservation	 and Forestry,	which	recommended	passage	of	the	bill,	accepted written materials from	representatives	of	the	Maine	Equine	Advisory	Council , the	Maine	Equine Indu stry	Association,	and	the	University	of	Maine,	and	from	owners	of	horses and	equine	facilities. Hearing	on	An	Act	to	Clarify	the	Equine	Activity	Law,	L.D.
2108 , Before	 the	 J oint Standing	 Comm ittee on	 Agriculture,	 Conservation	 & Forestry ,	 119th	 Legis. (Apr.	 1999)	 ( materials	 submitted	 by	 J acquelyn Krupinksy,	 Sarah	 Brooks,	 Rick	 Shepherd,	 Jim	 Jaeger,	 Stephen	 G.	 Ulman,	 and James	A.	Weber).		These organizations	and	individuals urged	the	committee	to recommend	 the	 law’s	 passage	 so	 that	 horse	 owners , and	 opera tors	 of horse

- related	 businesses , could	 engage	 in	 equine	 activities	 without risking9 excessive	 liability	 or facing exorbitant ,	 possibly prohibitively	 expensive , insurance	premiums. Id. [¶1 8 ] I nterpreting the	 statute	 at	 issue as	 McCandless	 requests would thwart the	entire	purpose	of	the	law	to curtail	liability	for	injuries arising	from risks	 that	 are “impracticable	 or	impossible	 to	 eliminate	 due	 to	 the	 nature	 of equines ” and to	 allow reasonable	 access	 to	 insurance	 for	 those	 engaged	 in horse

- related activities. L.D.	2108 , Summary	(119th	Legis.	1999) ; s ee	Hearing

on An	Act	to	Clarify	the	Equine	Activity	Law, L.D.	2108 , Before	the Joint	S tanding
Comm ittee on	 Agriculture,	 Conservation	 &	 Forestry ,	 119th	 Legis.	 (Apr.	 1999) ( materials submitted	by Jacquely n	Krupinksy,	Sarah	Brooks,	Rick	Shepherd,	Jim Jaeger,	 Stephen	 G.	 Ulman,	 and	 James	 A.	Weber). Reading	 the	 statute	 not	 to provide	immunity to the child in	these	circumstances would	be unreasonable and	 against	 the	 intentions	 of	 the	 Legislature ,	 and	 we	 will	 not	 construe	 the statute	in	such	a	manner. See Wawenock,	LLC ,	2018	ME	83,	¶	7,	187	A.3d	609

. [¶1 9 ] Given	the	particularized	definition	of the “inherent	risks	of	equine activities”	applicable	here,	and	the	legislative	history	available	for purposes	of interpreting	any	ambiguity	in	the	statute,	we conclude as	a	matter	of	law	that, on	 the	 facts	 presented	 on	 summary	 judgment,	 immunity	 has	 attached. See
7 M.R.S.	§ § 4101(7

- A) ,	4103

- A(1) ; cf. Merrill	v.	Sugarloaf	Mountain	Corp. ,	199710 ME	180,	¶ ¶ 5, 7 &	n.3,	698	A.2d	1042	(holding

— when	the	statute	did	not	define the	term	“risk of	the	dangers inherent	in	the	sport ” of	skiing

— that	the	issue	of whether	 the	 plaintiff’s	injuries	 arose	 from	 those	 risks	was	 a	 question	 of	 fact (quotation	marks	omitted) ). 3 [¶ 20 ] The Ramsey s ’	daughter	is therefore entitled	 to	immunity	unless one	 of	 the	 statutory	 exceptions	 to	 immunity applies

. See 7 M.R.S. § 4103

- A(2)

- (4). McCandless argues	that	two	exceptions	apply because ( A ) the Ramseys ’ daughter	 acted	 recklessly in	 causing	 McCandless’s	 injury and ( B ) McCandless was	in an	area	where	horses	would	not	be	expected or that	was a	protected	area for	spectators. See	id. §	4103

- A(2)(C),	(4).
A

. Exception	for	Injuries	Resulting	from	a	Reckless	Disregard	for	the	Safety of Others [¶ 2 1] Immunity	 will	 not	 lie	 if	 the	 party involved	 in	 equine	 activities

“ [c] o m mit[ted] an	act	or	omission	that	constitute [d] reckless	disregard	for	the safety	of	others	and	that	act	or	omission	caused	the	injury

. ” Id. §	4103

- A(2)(C). 4

3 McCandless	also	argues	that	the	trial	court	improperly	place d	on	her	the	duty	to	demonstrate that	her	injury	did not arise	from	an	inherent	risk	of	equine	activity. See Hilderbrand	v.	Wash.	Cty. Comm’rs ,	2011	ME	132,	¶	7,	33	A.3d	425	(holding	that	the	person	asserting	the	affirmative	defense of	 immunity	 bears	 the burden	 of	 proof).	 	We	 discern	 no	 such	 misapplication	 of	 the	 burden	 and, reviewing	the	summary	judgment	de	novo,	conclude	that	the	material	facts,	viewed	in	the	light	most favorable	to	McCandless,	show	that	McCandless’s	injury	resulted	from	the	inherent	ris ks	of	equine activity.

4 Although	not	raised	by the Ramsey s ,	the	heading	for	this	exception	suggests	that	it	should	apply only	 if	 a participant in	 equine	 activity

— not	 a	 mere	 spectator

— is	 injured. Compare 7	 M.R.S.11 For	purposes of	the	statute,	“[a]	person	acts	recklessly	with	respect	to	a	result of	the	person’s	conduct	when	the	person	consciously	disregards	a	risk	that	the person’s	conduct	will	cause	such	a	result.” 17

- A M.R.S.	§	35(3)(A)	(201 8 ) ; see 7 M.R.S.	§	4103

- A(2)(C). [¶ 22 ]		Although “ c onscious	disregard”	is	a	subjective	state	of	mind	that may	be	inferred	from	objective	conduct ,	there	are	no	facts	on	this	record	from which	such	a	state	of	mind	could	be	inferred. S ee State	v.	Taylor ,	661	A.2d	665, 668	(Me. 1995); State	v. Goodall ,	407 A.2d	268,	280	( Me. 1979)

. The Ramsey s’

ten
- year - ol d daughter was riding this	particular	horse	for	the	first	time

. When the	girl approached McCandless	on	her	 fourth	circuit,	she attempted	 to	steer the	horse	to	avoid a collision , but the	horse	took	longer	than the	girl expected to	respond	 to	her	directions,	and she had	difficulty	getting	 the	horse	 to	 turn , which	led	to	the	collision	at	issue

. Although	these	facts	may	suggest	negligence, and	indeed	it	is	negligence	that	McCandless has alleged	in	her	complaint, they are	not	f acts	from	which	a	trier	of	fact	could find that McCandless	was	injured because the	child consciously	disregarded	a	known safety risk

.

§ 4103

- A(2) (2018) (entitled,	“Exceptions;	participants”) with 7	M.R.S.	§	4103

- A(4) (2018) (entitled, “Exceptions;	 persons	who	 are	 not	 participants”) ; but	 see 1	M.R.S.	 §	 71(10)	 (2018)	 (“Abstracts	 of Titles,	chapters	and	sections,	and	notes	are	not	legal	provisions.”) .		Becau se	we	conclude	 that	 the exception	is	inapplicable	for	other	reasons,	we	do	not	address	this	question	further.12 B. Exception	for	Injuries	Occurring i n Places Where	Horses	Would	Not	Be Expected	or	in	Designated	Spectator Locations [¶ 23 ] McCandless	next	argues	that the Ramsey s ’	daughter	is not	immune from liability because she either
A. Cause [d] injury	.	.	.	to	a	person	who [was] not	a	participant	and who [was] in	a	place	where	a	reasonable	person	would	not	expect an	equine	activity	to	occur;	or
B. Cause [d] injury	.	.	.	 to	a	spectator	and	 that	spectator	was	in	a place	designated	or	intended	by	an	activity	sponsor	as	a	place	for spectators. 7	M.R.S.	§ 410 3

- A(4). [¶ 24 ] B y	 McCandless’s	 own	 report,	 the	 incident	 occurred	 in	 an	 area where	 a	 reasonable	 person would expect	 equine	 activity	 to	 occur

. See	 id. § 4103

- A(4)(A). Specifically, McCandless	was	standing	in	an	area	where	horses were	ridden,	and	she	saw the Ramsey s’ daughter ride directly past	her three times	before	the	accident. T he	place	where	she stood was	a	place	where	equine activity was,	in	 fact,	 occurring	 and	where	it could	 be	 expected	 to	 occur , and McCandless herself	observed that	equine	activit y	was occurring there

. [¶ 25 ] Nor do	 the	 facts

— viewed	 in	 the	 light	 most	 favorable	 to McCandless

— show	that	McCandless	was	in	a	designated	spectator	area

. See	id. §	4103

- A(4)(B). A designated	observation	room was	available , but the	incident did	 not	 occur	 in	 that	 observation	 room. I n	 the	 arena	 grounds where13 McCandless	 suffered	 her	 injury , there	 was	 no differentiation between horse traffic	 areas	 and	 pedestrian	 traffic	 areas. Although	 the area near where McCandless	stood was used by	pedestrians	to	exit	the	arena , she	was	standing
in an	 area that	 was intended	 to	 be used

— and	 was	 actually	 being	 used

— for equestrian	activities and	not	an area “designated	or	intended

.	.	. for	spectators.”
Id. T he	 specifically designated	 spectator area is	 not	 where McCandless	 was standing , or exiting	from , when	the	collision	occurred

. [¶ 26 ]	 	 B ecause the facts

— viewed	 in	 the	 light	 most	 favorable	 to McCandless

— show	 that no statutory	 exception	 to immunity applies ,	 we conclude , as	 did	 the trial court , that the Ramsey s’	 daughter is	 entitled	 to immunity pursuant	to section	4103

- A(1)	as	a	matter	of	law. Cf.	Zuckerman	v. Coastal	Camps,	Inc. ,	716	F.	Supp.	2d	23,	32

- 33	&	n.5	(D.	Me.	2010)	(concluding that	 summary	 judgment	was	inappropriate	 because	 there	were questions	 of material	fact	regarding	the	applicability	of	a	statutory	exception	to	immunity from	liability	for	equine	activities). The	entry	is: Judgment	affirmed.14 MEAD,	 J., with	whom	 JABAR	and	HUMPHREY,	 JJ.,	join,	concurring	in	part	and dissenting in	part. [¶27] I	 concur	in	 part	with,	 and	 respectfully	 dissent	in	 part	 from,	 the Court’s	opinion.		I	do	not	disagree	with	the	Court’s	description	of	the	immunity from	liability for equine	activities	established	by	Section	4103

- A	of	Title	7	of the	Maine	R evised	Statutes	and	the	court’s	discussion	of	the	objectives	behind that	statute.		 It	is	clear	 that	 the	Maine	Legislature	created	a	broad	immunity, with	narrow	exceptions,	for	liability	resulting	from	equine	activities.		I	diverge from	 the	Court’s	conclusi ons,	however,	based	upon	 the	Court’s	application	of our	 standard	 of	 review	 of	 summary	 judgments	 to	 two	 of	 the	 narrow exceptions. 5 In	reviewing	the	Superior	Court’s	granting	of	summary	judgment de	 novo,	 and	 viewing	 the	 facts	 of	 this	 matter	 in	 the	 light	 mos t	 favorable	 to McCandless	as	we	must,	I	would	conclude	that	genuine	issues	of	material	fact exist	regarding	the	application	of	two	exceptions	to	the	statutory	immunity	for equine	activity.		I	would	vacate	the	grant	of	summary	judgment	and	remand	for trial on	those	limited	issues	only. [¶ 28 ]		Subsection	4	of	7	M.R.S.	§	4103

- A	provides: 4.	 	 Exceptions;	 persons	who	 are	 not	participants. Nothing	in subsection	 1	 prevents	 or	limits	 the	liability	 of	 an	 equine	 activity

5 I	concur	in	the C ourt ’ s	opinion	in	all	other	aspects.15 sponsor,	an	equine	professional	or	any	other person	engaged	in	an equine	activity,	if	that	equine	activity: A.		Causes	injury	or	death	to	a	person	who	is	not	a	participant and	who	is	in	a	place	where	a	reasonable	person	would	not expect	an	equine	activity	to	occur;	or B.		Causes	injury	or	death	 to a	spectator	and	 that	spectator was	in	a	place	designated	or	intended	by	an	activity	sponsor as	a	place	for	spectators. [¶2 9 ]		Under	subsection	(4)(A), the	Ramseys would	not	be	immune	from liability	if	McCandless’s	injury	occurred	in	a	place	where	a	reaso nable	person would	 not	 expect	 an	 equine	 activity	 to	 occur

— an	 objective	 inquiry that is ordinarily	 entrusted	in	 the	 first	instance	 to	 the	 trier	 of	 fact,	not	an	appellate court	on	a	review	of	a	summary	judgment.		In their statement	of	material	facts supporti ng their motion	for	summar y	judgment, the Ramsey s asserted	that	the collision	occurred	in	an	area	where	it	was	typical	to	see	horses.		This	assertion, if	 uncontroverted,	 would	 be	 dispositive	 of	 the	 issue:	 the	 subsection	 (4)(A) exception	 would	 not	 be	 availa ble	 to	 McCandless	 to	 avoid	 the	 immunity provided	by	7	M.R.S.	§	4103

- A(1). [¶ 30 ]	 	McCandless	 properly	 controverted	 that	 fact,	 however,	 asserting that	horses	did	not	 ride	in	 the	area	regularly	used	by	pedestrians	 to	exit	 the building	when	pedestrians	were	pr esent.		Accepting	that	fact,	as	we	must,	in	the light	most	 favorable	 to	 the	party	against	whom	summary	judgment	has	been16 granted,	McCandless	has	established,	 for	 the	purposes	of	summary	judgment review,	that	equine	activities	would	not	take	place	in	the	vi cinity	of	the	collision if	pedestrians	were	present .		The	questions	of	(1)	whether	or	not	this	conditional practice	actually	existed,	or	(2)	whether	it	indeed	occurred	on	July	7,	2010,	or (3)	whether	a	reasonable	person	would	have	held	McCandless’s	opinion s	and perceptions	at	the	moment	of	the	collision,	are	categorically	questions	of	fact that	are	exclusively	the	province	of	the	finder	of	fact	and	cannot	be	resolved	by summary	 judgment. 6 See Curtis	 v.	 Porter ,	 2001 ME	 158,	 ¶	 7,	 784	 A.2d	 18 (“If material	 fa cts	 are	 disputed,	 the	 dispute	 must	 be	 resolved	 through fact

- finding

. . .	.”). [¶3 1 ]		Additionally,	the	exception	provided	in	subsection	(4)(B)	may	also operate	to	avoid	the	immunity	created	in	section	4103

- A(1)	if	McCandless	was in	a	place	designated	or intended	as	a	place	for	spectators.		The	undisputed	facts establish	that	the	indoor	arena	was	located	in	a	barn	with	an	observation	room

6 The	Court	posits	that	because the Ramseys’	daughter had	ridden	the	horse	past	McCandless	in the	same	spot	on	three	earlier	occasions,	this	establishes	that	it	is	impossible,	as	a	matter	of	law,	that McCandless	could	ever	prove	that	she	was	in	an	area	where	she	would	not	expect	equine	activity	to take	place

. See Court’s	Opinion	¶	24. Despite	the	fact	that	we	may	deem	a	litigant	to	have	a	steep challenge	in	proving	a	necessary	element	at	trial,	or	find	her	assertions	seemingly	implausible,	we may	not	superimpose	our	perceptions	of	the	permissible	inferences to	be	drawn	from	disputed	facts in	our	appellate	review	of	summary	judgments. See Rose	v.	Parsons ,	2015 ME 73,	¶	4,	118 A.3d 220 (“[The	s]ummary	judgment	process	is	not	a	substitute	for	trial,	even	if	the	likelihood	of	success	at trial	by	one	party	or	an other	is	small.		When	facts	or	reasonable	inferences	to	be	drawn	from	the	facts are	 in	 dispute,	 the	 court	 must	 engage	 in	 fact

- finding,	 and	 summary	 judgment	 is	 not	 available.” (citations	omitted)).17 from	which	spectators	could	observe	the	goings

- on	in	the	barn.		Additionally, folding	chairs	had	been	placed	along	the interior	wall	of	the	barn	in	the	indoor arena;	horses	were	not	typically	present	in	this	area.		The	parties	do	not	dispute that	 the	 observation	 room	 and	 the	 chairs	 along	 the	wall	were	 designated	 as places	for	spectators. [¶3 2 ]		Prior	 to	 the	incident,	McCan dless	had	been	 sitting	in	 one	 of	 the folding	chairs.		The	collision	occurred	after	she	left	the	area	of	the	chairs	and was	 proceeding	 to	 the	 south	 barn	 exit	 to	 leave	 the	 arena.	 	 The	 fact	 that	 the observation	room	and	the	folding	chairs	were	located	inside the	building	and could	be	accessed	by	a	spectator	only	by	entering	or	exiting	through	one	or	the other	of	the	doors	presents	a	plausible	conclusion:	the	exit	routes	between	the observation	 points	 and	 the	 doors	 may	 be	 deemed,	 by	 extension,	 places designated for	spectators.		That	conclusion,	and	the	purely	factual	question	of whether	McCandless’s	most	direct	exit	route	required	her	to	pass	through	the area	where	 the	collision	occurred	are,	again,	questions	of	 fact	 that	cannot	be determined	on	this	summary	jud gment	record. [¶3 3 ]		Because	unresolved	questions	of	material	fact	remain	surrounding the	issue	of	whether	the	subsection	4(A)	or	4(B)	statutory	exceptions	to	liability apply,	we	should	not	conclude	that the	Ramseys	are entitled	to	immunity	under18 section	 4 103

- A(1)	 as	 a	matter	 of	law. See Zuckerman	 v.	 Coastal	 Camps,	 Inc. , 716 F. Supp. 2d	23,	32	n.5	(D.	Me.	2010). [¶3 4 ]		 I	would	partially	 vacate	 the	granting	 of	 summary	judgment	and remand	 for	 trial	 on	 the	 issues	 of	 whether	 the	 subsection	 4(A)	 and	 4(B) exceptions	 to	 immunity	 apply.	 	 I	 would	 affirm	 the	 granting	 of	 summary judgment	on	all	other	issues	relating	to	liability.

Arthur	J.	Greif,	Esq. (orally) ,	Gilbert	&	Greif,	P.A.,	Bangor,	for	appellant	Nancy	J. McCandless Gregory	 S.	 Clayton,	 Esq. (ora lly) ,	 Primmer	 Piper	 Eggleston	 &	 Cramer	 PC, Camden,	for	appellee s John	Ramsey	et	al.

Washington	County	Superior	Court	docket	number	CV

- 2016

- 14 F OR C LERK R EFERENCE O NLY