# Third District Court of Appeal

State of Florida

Opinion filed September 7, 2016.

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No. 3D14- 2695

Lower Tribunal No. 13-39642

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### Patrick Germer,

Appellant,

vs.



### The Churchill Downs Management, etc., et al.,

Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Jose M.

Rodriguez

, Judge.

Lindsey M. Tenberg, P.A., and Lindsey M. Tenberg (Lighthouse Point), for

appellant.

Hinshaw & Culbertson LLP, and James H. Wyman, for appellees.

Before SHEPHERD, LAGOA and SCALES, JJ.

On Motion for Rehearing

SCALES, J.We deny Appellant Patrick Germer’s motion for rehearing. We withdraw

our prior opinion of July 13, 2016, and substitute the following opinion for that

previously issued.

Appellant, plaintiff below, Patrick Germer appeals a summary judgment

entered by the trial court in favor of Appellees, defendants below, Pinecrest

Stables, Inc., Parsons Pinecrest Farm, Inc., Santa Cruz Ranch, Inc., and Juan Pedro

Rizo Patron (collectively “Defendants”). We affirm because Florida’s Equine

Activities Liability Act (the “Act”) immunizes Defendants for the injuries

occasioned by a horse that bit Germer while Germer was engaged in an equine

activity.

I. Facts

On September 26, 2012, Germer, a former licensed jockey, and his

roommate Tomislav Zivanovich decided to visit Calder Race Course in Miami

Gardens, Florida to see Zivanovich’s horse. Because Germer’s jockey license had

expired, Germer was required to obtain a guest pass in order to enter the stables.

While Germer was en route through the barn to see Zivanovich’s horse, another

horse named Forever Happy jumped out of his stall and bit Germer’s chest.

Approximately a year and a half later on December 27, 2013, Germer filed

suit against the owners of the stables and the owner of Forever Happy, alleging that

Defendants were negligent in allowing Forever Happy to bite Germer. Defendants

2filed a motion for summary judgment, alleging that the Act, codified in chapter 773

of the Florida Statutes, immunized Defendants from any liability to Germer.

Defendants’ motion asserted that Germer was a “participant engaged in an equine

activity” and, therefore, pursuant to section 773.02 of the Florida Statutes, was

statutorily precluded from recovering damages. After conducting a hearing, the

trial court held that the Act immunized Defendants, and entered a final summary

judgment in favor of Defendants from which Germer takes this timely appeal.

II. Analysis 1

A. The Act’s relevant provisions

The operative immunity provision of the Act is codified in section 773.02 of

the Florida Statutes, which reads, in relevant part, as follows:

Except as provided in s. 773.03, an equine activity sponsor, an equine

professional, or any other person, which shall include a corporation or

partnership, shall not be liable for an injury to

. . . a participant

resulting from the inherent risks of equine activities and, except as

provided in s. 773.03, no participant

. . . shall have any claim against

or recover from any equine activity sponsor, equine professional, or

any other person for injury

. . . of the participant resulting from any of

the inherent risks of equine activities.

The Act defines a “participant” as “.

. . any person, whether amateur or

professional, who engages in

. . . an equine activity, whether or not a fee is paid to

1 We review the trial court’s grant of summary judgment de novo. Quarantello v.

Leroy

, 997 So. 2d 648, 651 (Fla. 5th DCA 2008).

3participate in the equine activity.” § 773.01(7), Fla. Stat. (2012). The Act

specifically defines “engages in an equine activity” as

riding, training, assisting in veterinary treatment of, driving, or being a

passenger upon an equine, whether mounted or unmounted, visiting or

touring or utilizing an equine facility as part of an organized event or

activity

, or any person assisting a participant or show management.

The term “engages in an equine activity” does not include being a

spectator at an equine activity, except in cases where a spectator

places himself or herself in an unauthorized area.

§ 773.01(1), Fla. Stat. (2012). (emphasis added)

B. The issue on appeal

The critical, indeed dispositive, issue in this case is whether Germer was

“visiting an equine facility as part of an organized event or activity” when he was

bitten by Forever Happy. If, as Defendants argue and as the trial court held,

Germer was engaged in such an organized event or activity, then Germer was a

“participant engaged in an equine activity” and Defendants are statutorily

immunized from Germer’s claim for personal injuries. § 773.02, Fla. Stat. (2012).

C. The parties’ respective arguments

Germer argues that his visit to the stables did not constitute an organized

activity or event because Germer’s decision to visit the stables with his roommate

was made on the spur of the moment and was not coordinated with the stable

owners prior to the visit. Defendants argue that Germer’s visit was “organized” by

Zivanovich, an owner of a horse housed at the stables. Defendants further argue

4that the stable’s requirement that all guests obtain a guest pass prior to entering the

horse barn

– combined with the statutorily required warning posted at the stable 2

–

constitutes the requisite “organization” so as to immunize Defendants from

Germer’s personal injury claims.

D. Legislative intent

While the Legislature meticulously defined virtually every other operative

term in chapter 773, the statute does not provide a definition for “organized event

or activity.” Therefore, we are called upon to construe the provision, consistent

with the Act’s legislative intent. Bautista v. State

, 863 So. 2d 1180, 1185 (Fla.

2003).

In order to ascertain legislative intent, we look at the statutory scheme, as a

whole, and interpret the specific provision consistent with the theme evidenced by

its statutory structure. State v. Moreno-Gonzalez

, 18 So. 3d 1180, 1182 (Fla. 3d

DCA 2009) (stating that courts are “guided by the rule of statutory construction

2 In order for an equine facility to avail itself of section 773.02’s exculpation, the

Act requires the posting of the following warning notice:

WARNING

Under Florida law, an equine activity sponsor or equine professional

is not liable for an injury to, or the death of, a participant in equine

activities resulting from the inherent risks of equine activities.

§ 773.04(2), Fla. Stat. (2012).

5that all parts of a statute must be read together in order to achieve a consistent

whole.”).

Plainly, the Act’s general intent is to limit the liability of Florida’s equine

facilities for injuries resulting from inherent risks associated with equine activities.

To effectuate this intent, the Legislature broadly defined those activities

constituting an equine activity. Indeed, the Legislature carved out only one specific

exception from this broad definition, i.e., spectators in an authorized area. §

773.01(1), Fla. Stat. (2012). See Thayer v. State

, 335 So. 2d 815, 817 (Fla. 1976)

(conveying intent pursuant to the principle of statutory construction, expressio

unius est exclusio alterius, “the mention of one thing implies the exclusion of

another”). Thus, against this backdrop, we interpret the phrase “as part of an

organized event or activity” consistent with the Legislature’s overall intent to limit

the liability of equine facilities for injuries resulting from risks associated with

horses.

E. Statutory application

In this case, Defendants’ equine facility maintained an internal policy that

required security passes in order to access the stable areas where Germer’s injury

occurred. The record in this case plainly establishes that, in order for Germer to

have gained access to this area, Germer had to be issued a paper visitor’s pass by

the stable’s security personnel.

6Put another way, in order for Germer to have gained access to the area where

his injury occurred, Germer had to jump over an established hurdle. In our view,

the creation and existence of such a protocol constituted the requisite

“organization” so as to make Germer’s visit to the stables “an organized activity”

as defined in section 773.01(1) of the Florida Statutes.

III. Conclusion

Therefore, we agree with the trial court’s analysis of the uncontested facts of

this case and its determination that the Act immunizes Defendants from any

liability resulting from Germer’s horse bite. 3

Affirmed.

3 If, as here, the Act’s immunity provisions apply to exculpate an equine activity

sponsor, a claimant is saddled with the burden of establishing an applicable

exception to exculpation under section 773.03(2). Germer makes the alternate

argument that a factual dispute exists as to whether any of the exceptions to section

773.02 articulated in section 773.03(2)(a)-(e) apply. Without further discussion, we

affirm the trial court’s determination that no genuine issue of material fact exists

and none of the exceptions to section 773.02 apply to this case.

7