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$55$ Mass.App.Ct$.1113$

Unpublished Disposition

NOTICE: THIS IS AN UNPUBLISHED OPINION.

Appeals Court of Massachusetts.

Stuart HURWITZ, administrator,$1$ & another$2$

v$.$

William STRAIN & others$\mathrm{.}3$

No$.00$P$868.$

Aug. $19,2002.$

Synopsis

Administrator of horse buyer's estate sued seller, seeking damages for buyer's wrongful death alleging negligence, misrepresentation, breach of express and implied warranties. and violation of consumer protection law. The Superior Court Department granted seller's motion for summary judgment, and administrator appealed. The Appeals Court held that: $(1)$ absent evidence that horse was unsuitable to ride before accident, seller was not liable for misrepresentations or breach of warranty; $(2)$ bill of sale superseded any statement by seller about providing helmet to buyer; and $(3)$ riding horse without helmet was such obvious risk that, as a matter of law, no actionable duty arose as result of seller's failing to warn buyer to wear one.

Affirmed.

West Headnotes $(3)$

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$1$

FraudDisplay Key Number TopicsFalsity and Knowledge Thereof

SalesDisplay Key Number TopicsExpress warranties

SalesDisplay Key Number TopicsWarranties imposed by law; $$implied warranties

Absent evidence that horse was unsuitable to ride before accident in which buyer was thrown and sustained head injuries that resulted in her death, seller was not liable for alleged misrepresentations about horse or for breach of express and implied warranties; even though there was evidence that horse exhibited violent, destructive, and unmanageable behavior after accident, seller established that no one who rode horse prior to accident encountered any difficulty controlling him or observed problems with his temperament.

$2$

SalesDisplay Key Number TopicsOperation and effect

Assuming that seller's statement, that purchase price of horse included $$all the equipment$$ buyer would need, meant providing a helmet, that promise was superseded by bill of sale.

$3$

AnimalsDisplay Key Number TopicsHorses and other equines

Riding a horse without helmet was such an obvious risk that, as a matter of law, no actionable duty arose as a result of seller's failing to warn buyer that she should wear a helmet.

By the Court $($GREENBERG$,$ BECK & GRASSO, JJ$.).$

MEMORANDUM AND ORDER PURSUANT TO RULE $1$:$28$

$*1$ Assured by the defendant William Strain that $$Charlie$$ was a horse of mild disposition, suitable for a novice rider, the plaintiff's decedent, Sharon Lukas, purchased him together with suitable harness and saddle equipment. A bill of sale dated April $29,1995,$ finalized the transaction. Tragically, on May $7,1995,$ on her second ride, Lukas was thrown from the horse and subsequently died from her injuries. The plaintiff, Stuart Hurwitz, commenced this action in the Superior Court seeking damages for Lukas's wrongful death alleging negligence $($as presently material$),$ misrepresentation, breach of express and implied warranties under G$.$L$.$ c$.106$ and violation of the Massachusetts consumer protection law, G$.$L$.$ c$.93$A$\mathrm{.}4$ The defendants moved for summary judgment on the ground that there was no evidence that the defendant sellers knew or should have known of the horse's dangerous propensities. After reconsideration was denied, the plaintiff appealed. We affirm.

Facts. Lukas had told Strain that she was a beginning rider, and Strain assured her that Charlie, an older, well$-$trained horse, was the right horse for her. $($A$.$I:$67,70)$ Lukas purchased Charlie for $$4,500,$ and was told by Strain that he would give her $$all the equipment $[$she$]\text{'}$ll need.$($A$.$I:$31,75)$ The bill of sale enumerated the equipment furnished, e$.$g$.,$ Western saddle, bridle, bit. $($A$.$I:$31)$ The horse had been purchased by Strain on April $7,1995.($A$.$I:$119)$ Lukas was not given a helmet by Strain, nor was she told to wear a helmet. $($A$.$IV:$881)$

On May $1$ or $2,1995,$ Lukas returned to the stables and spent one to two hours riding Charlie without incident, as on prior occasions numerous of Strain's other customers had. $($A$.$I:$131)$ On May $3,1995,$ the horse was delivered to BJ$\text{'}$s$,$ the stables where Lukas would board him. $($A$.$I:$131)$ The veterinarian who examined Charlie prior to the sale, Patricia Kuzmickas, testified that he gave her better than average cooperation during the examination, and opined that there was nothing about him to make him unsuitable for a beginning rider. $($A$\mathrm{.}189,194)$ Kuzmickas described Charlie as $$well broken,$$ and stated that he appeared to be easily controlled. $($A$.$II:$479,480)$

When the horse was delivered to BJ$\text{'}$s he was stumbling. $($A$.$II:$302)$ The owner of BJ$\text{'}$s$,$ Elizabeth Joseph, was giving Lukas a course on how to take care of a horse but had never instructed her on how to saddle a horse. $($A$.$III:$521,581)$ At some point, she told Lukas that when students take riding lessons it was imperative that they wear helmets for protection. $($A$.$III:$576)$ She characterized Charlie as not ill$-$mannered or dangerous in his stall. $($A$.$III:$60$