IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

April 15, 2010 Session

KERRY JORDAN v. YMCA OF MIDDLE TENNESSEE, ET AL.

Appeal from the Circuit Court for Davidson County

No. 08C-1774 Amanda J. McClendon, Judge

No. M2009-02369-COA-R3-CV - Filed September 30, 2010

A young woman was thrown from a horse at a camp operated by the YMCA of Middle

Tennessee, breaking her arm. Unbeknownst to the woman, the same horse had thrown two

experienced riders ten days earlier. She filed a suit for negligence against the YMCA and

the camp, alleging that their employees and volunteers knew the horse to be dangerous, but

that they nonetheless failed to ascertain whether she was sufficiently experienced to handle

such an animal. The defendants filed a motion for summary judgment, claiming that they

were immune from liability under the provisions of the Equine Activities Act, Tenn. Code

Ann. § 44-20-101 et seq. The trial court granted the motion. We reverse.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed

PATRICIA J. COTTRELL, P.J., M.S., delivered the opinion of the Court, in which ANDY D.

BENNETT and RICHARD H. DINKINS, JJ., joined.

Delain Deatherage, Nashville, Tennessee, for the appellant, Kerry Jordan.

Richard C. Mangelsdorf, Jr., Charlotte S. Wolfe, Nashville, Tennessee, for the appellees,

YMCA of Middle Tennessee and Camp Widjiwagan.

OPINION

I. A SUIT FOR NEGLIGENCE

The incident from which this lawsuit arose occurred after Kerry Jordan accepted an

invitation from her friend and co-worker, Lynn Blair-Anton, to volunteer in the equestrian

program at Camp Widjiwagan, which is operated by the YMCA of Middle Tennessee. Ms.

Jordan was one of several volunteers who agreed to lead a group of children on a guided trail

ride during her first trip to the camp. No children were there when they arrived, however,
so the volunteers decided to familiarize themselves with the planned route. They chose

horses from the camp stable, mounted them, and rode to the lake. After one of the

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volunteers dismounted, the horse panicked and ran back to the stable.

Another trail ride with children was planned as part of an NES picnic a few weeks

later. On June 9, 2007, Ms. Jordan and Ms. Blair-Anton returned to Camp Widjiwagan for

that outing. As the children and their parents began arriving, Ms. Blair-Anton suggested that

Ms. Jordan “grab a horse and go ahead and get in the ring, and we’ll start sending people

out.” There was a sign in the stable directing all participants to “wear a properly secured

helmet at all times while riding.” Ms. Jordan asked Ms. Blair-Anton’s teenage daughter if

she needed to put on a helmet, and was told that it was up to her if she wanted to wear one.

She did not see anyone else wearing a helmet, so she did not put one on.

Ms. Jordan chose a horse that had been on the earlier trial ride (not the one that

panicked) and who seemed to her to have “a sweet disposition.” It was already saddled up,

and without a helmet she mounted the horse, but “[it] just started bucking as soon as I got

into the ring.” The horse bucked Ms. Jordan off, and the fall broke her arm. She did not hit

her head or suffer any kind of head injury. Ms. Jordan later discovered that the horse, a ten

year old gelding named Siena, had thrown two experienced riders about ten days earlier.

On June 5, 2008, Ms. Jordan filed a complaint in the Circuit Court of Davidson

County, naming the YMCA of Middle Tennessee and Camp Widjiwagan as defendants. She

claimed that her accident was caused by the negligence of the YMCA and its employees, and

that as a result of the accident she sustained damages that included emotional suffering, loss

of wages, health care expenses, and permanent physical impairment. The defendants filed

an answer in which they raised several defenses. The only defense which is relevant to this

appeal is their assertion that they were shielded from liability by the provisions of the Equine

Activities Act, Tenn. Code Ann. § 44-20-101 et seq.

On June 15, 2009, the defendants filed a motion for summary judgment, accompanied

by the plaintiff’s deposition as well as those of YMCA summer employee Evan R. Myrick

and YMCA volunteer William Reece, and the affidavits of Lynn Blair-Anton and YMCA

employee John King. Ms. Jordan filed a response to the motion, accompanied by the

affidavits of Tim Norris, an experienced horseman from Bedford County, and Leighton

Sissom, a mechanical engineer and former dean of engineering at Tennessee Technological

University.

Camp Widjiwagan adjoins Percy Priest Lake. 1

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Kerry Jordan testified at deposition that she was born in 1983 and that she had first

ridden horses at age seven when she was in the Girl Scouts. When she was in high school,

she rode “about five times” with a classmate of hers who owned a horse. At one point, she

vacationed on an Arizona farm with her sister, and they took a two hour trial ride. She

testified that she did not consider herself an experienced rider, but that she was not afraid of

horses.

Sixty-nine year old William Reece testified that he had been around horses all his life,

had ridden and cared for horses of every breed and age, and had been an equestrian volunteer

at Camp Widjiwagin since 2001. On the day of the accident, he met Kerry Jordan and

overheard her saying that she had ridden horses before, but that it had been a while. Mr.

Reece also said that he had never ridden Siena, but that he remembered the horse as having

a sweet disposition, and that he was unaware of any problems with it.

Twenty year old Evan Myrick grew up on a farm and was also an experienced

horseman. He started working at Camp Widjiwagin in the summer of 2006, teaching

children how to groom, saddle, and ride horses. He testified that there were no problems

with Siena that year, but that about ten days before Ms. Jordan’s accident, Siena bucked off

one of his fellow employees, an experienced equestrian named Brooke, during staff training.

The following day, Mr. Myrick tried riding Siena. The horse bucked but could not throw

him. Siena then reared up and fell onto its side. Evan Myrick fell to the ground, but was

unhurt. He testified that he didn’t know what made the horse buck. The plaintiff’s attorney

asked him hypothetically if, knowing that Siena had thrown two riders he would put a family

member of his own on the gelding if that family member had only ridden a horse seven or

eight times. He answered in the negative.

Lynn Blair-Anton testified by affidavit that Kerry Jordan appeared to be comfortable

around horses, and “was obviously experienced with respect to her ability to saddle, equip

and ride her horse with appropriate technique.” She also stated that she was familiar with

Siena, and that the gelding was routinely ridden by young children and adults as part of the

trail riding program. Ms. Blair-Anton had learned that Siena had bucked off a camp staff

member about 10 days prior to June 9, 2007, but stated that “[f]rom my observation the horse

Siena was always a good-natured horse that was safe for riding by children. I had no reason

to believe there was any reason for Kerry Jordan not to be on this horse on the day of her

accident.”

One significant area of testimony involved the construction that was taking place at

Camp Widjiwagan during the summer of 2007. Ms. Jordan testified that new cabins were

being built at the camp and that there was construction activity going on about 50 feet away

from the entrance of the fenced-in ring where she was thrown. She suggested that Siena was

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spooked by the movement and noise of the construction activity. Mr. Reece confirmed that

there had been construction going on at the camp all that summer, but he testified that he

didn’t pay much attention to it because it was never a problem and he was focused on the

horses. Mr. Myrick testified that construction was 700 or 800 yards away from the barns, and

that you couldn’t even see it from the ring.

Tim Norris and Leighton Sissom both testified on the basis of their reading of the

depositions and the affidavits of the defendants’ witnesses and on photographs they had been

shown of the construction activity at the camp. They stated that in light of the two previous

incidents with Siena and the presence of construction activity so close to the arena, it was

likely that the horse bucked because it had been spooked by the construction noise and

motion, and that the defendants were negligent in allowing Ms. Jordan to get on that horse

under those circumstances.

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The trial court conducted a hearing on the defendants’ motion on August 21, 2009,

and then took the matter under advisement. On October 8, 2009, the court filed a detailed

Memorandum Order, in which it discussed the facts of the case, including Ms. Jordan’s

apparent level of comfort around horses. The trial court concluded that Ms. Jordan’s injury

was due to “the inherent risks of equine activity,”and stated that the circumstances were not

so exceptional “so as to remove the protections to equine sponsors that are intended by the

[Equine Activities] Act.” The court accordingly held that the defendants were entitled to

summary judgment. This appeal followed.

II. THE STANDARD OF REVIEW

Summary judgment is appropriate if “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that the moving party is entitled to a judgment

as a matter of law.” Tenn. R. Civ. P. 56.04; Blair v. West Town Mall, 130 S.W.3d 761, 764

(Tenn. 2004).

Rule 56.06 Tenn. Rules Civ. P. states that “[s]upporting affidavits shall be made on personal 2

knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that

the affiant is competent to testify to the matters therein stated.” It is not obviously clear that the affidavits

of Mr. Norris and Dr. Sissom fully meet these requirements. Perhaps they were offered as expert opinions. 

In any event, the defendants did not object to the affidavits, and we have not relied upon them in determining

the merits of this appeal.

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A trial court’s decision on a motion for summary judgment enjoys no presumption of

correctness on appeal. Martin v. Norfolk Southern Railway Co., 271 S.W.3d 76, 84 (Tenn. 2008);

Blair v. West Town Mall, 130 S.W.3d at 763. We review the summary judgment decision as a

question of law. Id. Accordingly, this court must review the record de novo and make a fresh

determination of whether the requirements of Tenn. R. Civ. P. 56 have been met. Eadie v. Complete

Co., Inc., 142 S.W.3d 288, 291 (Tenn. 2004); Blair v. West Town Mall, 130 S.W.3d 761, 763 (Tenn.

2004). Those requirements are that the filings supporting the motion show that there is no genuine

issue of material fact and that the moving party is entitled to judgment as a matter of law. Tenn. R.

Civ. P. 56.04; Blair, 130 S.W.3d at 764.

The moving party has the burden of demonstrating it is entitled to judgment as a matter of

law and that there are no material facts in dispute. Martin, 271 S.W.3d at 83; McCarley v. West

Quality Food Service, 960 S.W.2d 585, 588 (Tenn. 1998) To be entitled to summary judgment, a

defendant moving partymust either (1) affirmatively negate an essential element of the non-moving

party’s claim or (2) show that the nonmoving party cannot prove an essential element of the claim

at trial. Hannan v. Alltel Publishing Co., 270 S.W.3d 1, 9 (Tenn. 2008). If the party seeking

summary judgment makes a properly supported motion, the burden shifts to the nonmoving party

to set forth specific facts establishing the existence of a genuine issue of material fact. Martin, 271

S.W.3d at 84; Hannan, 270 S.W.3d at 5; Staples v. CBL & Associates, 15 S.W.3d 83, 86 (Tenn.

2000) (citing Byrd v. Hall, 847 S.W.2d at 215). 

In our review, we must consider the evidence presented at the summary judgment stage in

the light most favorable to the non-moving party, and we must afford that party all reasonable

inferences. Doe v. HCA Health Servs., Inc., 46 S.W.3d 191, 196 (Tenn. 2001); Memphis Hous. Auth.

v. Thompson, 38 S.W.3d 504, 507 (Tenn. 2001).

III. THE EQUINE ACTIVITIES ACT

Under general principles of the common law, civil liability normally attaches for

injuries caused by the negligent conduct of a party regardless of whether or not that conduct

involves an equine. However, our legislature enacted the Equine Activities Act, Tenn. Code

Ann. § 40-20-101 et seq. to encourage horsemanship and other equine activities by limiting

liability for those involved in such activities. The purpose of the Act is set out in Tenn. Code

Ann. § 44-20-101, which reads,

The general assembly recognizes that persons who participate in equine

activities may incur injuries as a result of the risks involved in such activities.

The general assembly also finds that the state and its citizens derive numerous

economic and personal benefits from these activities. It is, therefore, the intent

of the general assembly to encourage equine activities by limiting the civil

liability of those involved in such activities.

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The scope of protection from liability provided by the Act is set out in Tenn. Code

Ann. § 44-20-103:

Except as provided in § 44-20-104, 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 or the death of a participant

resulting from the inherent risks of equine activities. Except as provided in §

44-20-104, no participant or participant’s representative shall make any claim

against, maintain an action against, or recover from an equine activity sponsor,

an equine professional, or any other person for injury, loss, damage, or death

of the participant resulting from any of the inherent risks of equine activities.

Thus, a defendant who meets the definition of an equine activity sponsor or equine

professional is shielded from liability for an injury suffered by a participant as the result of

an inherent risk of equine activity. The definitions of the terms “equine activities,” “equine

activity sponsor,” “equine professional,” “inherent risks of equine activity” and “participant,”

are all set out in Tenn. Code Ann. § 44-20-102.

The disposition of several cases involving the Equine Activities Act has depended

upon a close reading of some of those definitions. See Friedli v. Kerr, No. M1999-2810-

COA-R9-CV, 2001 WL 177184 (Tenn. Ct. App. Feb. 23, 2001) (no Tenn. R. App. P. 11

application filed) (passengersin horse-drawn wagon were not participantsin equine activities

for purposes of the Act); Smith v. Phillips, No. M2009-00104-COA-R3-CV, 2010 WL

1221436 (Tenn. Ct. App. March 29, 2010) (no Tenn. R. App. P. 11 application filed)

(friends who organized an informal trail ride were not “equine activity sponsors” or “equine

professionals” for purposes of the Act).

The parties in the present case do not dispute that the defendants are equine activity

sponsors, that the parties were engaged in equine activities, or that the plaintiff was a

participant within the meaning of the Act. Thus, the defendants are entitled to immunity

unless the facts presented bring it within the exceptions to immunity that are set out in Tenn.

Code Ann. § 44-20-104. That statute reads, in pertinent part,

(b) Nothing in § 44-20-103 shall prevent or limit the liability of an

equine activity sponsor, an equine professional, or any other person if the

equine activity sponsor, equine professional, or person:

(1)(A) . . . .

 (B) Provided the equine and failed to make reasonable and prudent

efforts to determine the ability of the participant to engage safely in the equine

activity and determine the ability of the participant to safely manage the

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particular equine based on the participant’s representations of the participant’s

ability;

(2) Owns, leases, rents, or otherwise is in lawful possession and control

of the land or facilities upon which the participant sustained injuries because

of a dangerous latent condition that was known to the equine activity sponsor,

equine professional, or person and for which warning signs have not been

conspicuously posted;

(3) Commits an act or omission that constitutes willful or wanton

disregard for the safety of the participant, and that act or omission caused the

injury.

. . . .

The plaintiff argues that all three of these exceptions apply to her claim. For their

part, the defendants do not place much emphasis on the provisions of Tenn. Code Ann. § 44-

20-104. They argue instead that being thrown off a horse falls squarely within the “inherent

risks of equine activity,” and that “the heart of the statute” lies in the immunity it grants to

equine activity sponsors for injuries resulting from the those risks. See Tenn. Code Ann. §

44-20-102(6). While we agree that the accident herein could have resulted from conditions

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that are inherent in riding horses, that does not remove the statutory exceptions to immunity

from the analysis. Those exceptions were created with knowledge and acknowledgment that

there are risks inherent in equine activities.

The trial court granted the defendants summary judgment after finding that they were

entitled to absolute immunity on the basis of the Equine Activities Act. In order to resolve

this appeal we must, therefore, apply the provisions of the Act to the facts presented.

The defendants rely upon a case with many similarities to the present one, Cave v.

Davey Crockett Stables, No. 03A01-9504-CV-00131, 1995 WL 507760 (Tenn. Ct. App.

Aug. 29, 1995)(no Tenn. R. App. P. 11 application filed). In that case, the trial court granted

"Inherent risks of equine activities" means those dangers or conditions that are an integral part of

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equine activities, including, but not limited to:

(A) The propensity of an equine to behave in ways that may result in injury, harm, or death to

persons on or around them;

(B) The unpredictability of an equine’s reaction 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) The potential of a participant to act in a negligent manner that may contribute to injury to the

participant or others, such as failing to maintain control over the animal or not acting within the participant’s

ability.

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summary judgment to a stable business and a summer camp, finding them to be immune from

liability for an injury suffered by a twelve year old camper when her leg was pinned between

her horse and a tree during a trail ride. The court noted that the defendants had presented

evidence that the circumstances of the injury were typical of “the inherent risks of equine

activity” and stated that the plaintiff had not presented any countervailing evidence. We

affirmed the trial court.

Unlike the plaintiff in Cave, however, the plaintiff in the present case has presented

evidence which, if proved, could establish an exception to immunity set out in Tenn. Code

Ann. § 44-20-104. It is undisputed that Ms. Jordan had some experience with horses, but she

testified that she did not consider herself an experienced rider. Even if she was justifiably

confident of her ability to handle most horses, there was no proof that she represented herself

as capable of managing a horse that had a propensity to buck and that had already thrown two

experienced riders.

Ms. Blair-Anton was a friend and co-worker of Ms. Jordan, and she had some

knowledge of Ms.Jordan’s equestrian experience. No evidence was presented, however, that

she or any other of the YMCA’s employees and volunteers made any effort to determine

whether Ms. Jordan would be able to manage “the particular equine” which the defendants

provided and which caused her injury.

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Ms. Blair-Anton obviously assumed that Ms. Jordan was capable of managing any

horse in the stable, for she simply told her to “grab a horse.” No one warned Ms. Jordan that

Siena had thrown two experienced riders about ten days earlier, or attempted to determine

whether she was experienced enough to safely handle such a horse. Thus, viewing the

evidence before us in the light most favorable to the plaintiff, it appears to us that she raised

a genuine question of material fact as to whether the defendants made “reasonable and

prudent efforts to determine the ability of the participant . . . to safely manage the particular

equine” that caused her injury. See Tenn. Code Ann. § 44-20-104(b)(1)(B). The defendants

are therefore not entitled to judgment as a matter of law.

In order to avoid summary judgment on the basis of the immunity granted by the

Equine Activities Act, only one of the exceptions to immunity set out in Tenn. Code Ann.

§ 44-20-104 need be demonstrated. The facts of this case, suggest, however, that a second

exception may also applicable. The proof showed that there was construction activity in the

vicinity of the fenced-in ring from which riders set out on trial rides. There was conflicting

testimony as to the exact proximity of that activity to the location where the plaintiff was

The defendants do not dispute that even though she was a volunteer, Ms. Blair-Anton could be 4

considered an agent of the YMCA. 

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injured and as to how noisy or disruptive it was. There is also some question as to when and

under what circumstances construction activity that is carried out in the open qualifies as “a

dangerous latent condition.” But viewing the evidence once again in the light most favorable

to the plaintiff, it appears that she raised a genuine question of material fact as to whether the

exception to immunity set out in Tenn. Code Ann. § 44-20-104(b)(2) applies.

Finally, the plaintiff argues that the defendants showed willful or wanton disregard

for her safety by failing to insist that she wear a helmet before mounting Siena. However,

that exception to immunity only applies to willful or wanton acts of omissions that cause

injury. Ms. Jordan admits that she did not suffer a head injury, and she did not allege that

the lack of a helmet contributed to her injury in any way. Thus, based upon the undisputed

facts, Ms. Jordan is not entitled to judgment as a matter of law on this claim.

IV.

The judgment of the trial court is reversed. We remand this case to the Circuit Court

of Davidson County for any further proceedings necessary. Tax the costs on appeal to the

appellees, the YMCA of Middle Tennessee and Camp Widjiwagan.

_________________________________

PATRICIA J. COTTRELL, JUDGE

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