Nicholas J. BERLANGIERI and Carol Berlangieri, Plaintiffs-Appellants, v. RUNNING ELK CORPORATION; Second Running Elk Corporation, d/b/a The Lodge at Chama, Defendants-Appellees, 132 N.M. 332

OPINION ALARID, Judge. {1} This case requires us to decide whether New Mexico courts will enforce an exculpatory agreement purporting to relieve the commercial operator of a recreational premises from liability for failure to exercise ordinary care to protect its patrons from risks of serious physical injury. We conclude that such exculpatory agreements are unenforceable because commercial operators of recreational premises are subject to a non-dis-claimable duty to exercise ordinary care to protect patrons from foreseeable risks of physical injury or death.

BACKGROUND {2} Defendants operate The Lodge at Chama (hereafter The Lodge). The Lodge offers guests horseback riding expeditions as well as other recreational activities. On May 29, 1996, Plaintiff, Nicholas Berlangieri, and other employees of Honeywell Corporation were guests at The Lodge. Members of the group of employees expressed an interest in a horseback riding expedition.

A riding expedition was arranged for the afternoon of May 29,1996. {3} Prior to the riding expedition, Jeri Simms, The Lodge’s manager, spoke with each participant, including Plaintiff, to determine the participant’s experience and ability in horseback riding. Simms concluded that Plaintiff was a novice rider. Simms explained to each guest that due to the unpredictable nature of horses, horseback riding involves certain unavoidable risks of injury. Simms gave each guest a copy of The Lodge’s “Agreement for Release and Assumption of Risk” (hereafter the Release) and asked the guest to read and sign it.

The Release stated: I acknowledge that I have been informed of, and that I am otherwise aware of, the risks involved in fishing, horseback riding, hiking and shooting the sporting clays on the lands of the THE LODGE AT CHA-MA. I hereby declare that I possess sufficient skills and experience in the above mentioned activities without causing injury to myself or other guests of THE LODGE AT CHAMA.

In consideration of being permitted to participate in the above mentioned activities and otherwise use the lands of THE LODGE AT CHAMA, I agree: To use due care while engaging in the above mentioned activities on the lands of THE LODGE AT CHAMA, including, but not limited to, each and every risk resulting from negligent acts or omissions of any other person or persons, including employees and agents of THE LODGE AT CHA-MA.

I further agree to exculpate and relieve THE LODGE AT CHAMA and its employees, representatives and agents from all liability for any loss, damage, or injury, whether to person or property which I may suffer while engaging in activities and/or using the lands of THE LODGE AT CHAMA all whether or not resulting from the negligent act or omission of another person or persons. {4} As each guest signed the Release, Simms asked the guest if he or she understood the terms of the agreement. Each guest, including Plaintiff, stated that he understood.

Although Plaintiff has no recollection of signing a Release, he does not dispute that his signature appears on an executed Release. {5} In view of the inexperience of the Honeywell group, The Lodge selected gentle, easygoing horses for the trail ride. Plaintiffs horse was saddled prior to the trail ride by an experienced employee of The Lodge.

This employee testified that the saddle, tack, and equipment he put on Plaintiffs horse were in good, serviceable condition and were properly positioned on the horse. {6} During the trail ride, another guest observed Plaintiffs horse “constantly wanting to move to the head of the group and to move faster than the other horses in the group.” The trail ride otherwise proceeded without incident. At the end of the ride, as the group approached the stable, Plaintiffs horse began to gallop.

One eyewitness recalled that Plaintiff appeared to rotate to the right around the horse’s body, “as if he was the hand of a clock moving around the center point.” According to this witness, Plaintiff fell to the right side of the horse, his head and shoulder hitting the ground first. In the words of another witness: “It appeared to be a slow fall to the right, with [Plaintiffs] body continuaEy facing forward.

He remained upright in the sense that his back remained approximately straight.” These two witnesses stated that Plaintiffs fall was consistent with the saddle sliding, but neither witness recalled actually observing the saddle shift. One member of the party recalled that approximately two minutes after the fall, Plaintiffs horse did not have a saddle.

However, the employee who saddled Plaintiffs horse, and who led the trail ride, recalled that after the fall, “[t]he saddle and tack were properly positioned and in good serviceable condition” and that he removed the saddle from Plaintiffs horse after assisting Plaintiff. Gay Davenport, an experienced horse trainer and riding instructor, provided an expert opinion as to the cause of the fall.

Based on the eyewitness reports of the fall, Davenport concluded that “the saddle was not properly positioned and/or the cinch was not properly tightened; or this equipment failed, causing the saddle to slide sideways off the top of the horse.” {7} Plaintiff filed a “Complaint for Personal Injury Damages” alleging that Plaintiff had suffered severe injuries, including brain injury.

Plaintiff alleged that his injuries were the result of Defendants’ “negligence, carelessness, and recklessness.” Plaintiff alleged his injuries were caused by the following acts and omissions on the part of Defendants and their employees: A. Failure to properly install the saddle and related equipment on the horse which [Plaintiff] was riding; and/or B. Providing saddle, equipment, or tack which defendants and their employees knew or should have known was faulty or was improperly installed.

Plaintiff alleged that he had “incurred medical bills of several hundred thousand dollars” as well as lost income “in excess of $450,000.” {8} Defendants moved for

summary judgment arguing that they were not liable for Plaintiffs injuries because they were exculpated by the Release and because Plaintiffs injuries were the result of “equine activities,” which under the Equine Liability Act, NMSA 1978, §§ 42-13-1 to -5 (1993, as amended through 1995) could not be the basis of liability. Plaintiff argued in response that (1) the Equine Liability Act does not bar liability for personal injuries caused by faulty tack, and (2) enforcement of the Release would violate public policy as expressed in the Equine Liability Act. {9} The district court granted

summary judgment in favor of Defendants.

As to the Equine Liability Act, the district court found that “Plaintiffs have presented sufficient evidence from which a reasonable person could infer that the proximate cause of Berlangieri’s fall and consequent injury was the Defendants’ negligence in improperly saddling his horse, causing it to come loose and slip.” The district court reasoned that: The Plaintiffs’ allegations are that the saddle and cinch on Berlangieri’s horse were improperly installed, conduct which cannot reasonably be comprehended by the phrase “equine behavior.” At best, Defendants] can establish that Berlangieri’s fall occurred while he was riding a horse.

In my view, there is no disputed question of fact that Berlangieri’s injuries did not occur as a result of equine behavior even though they may have occurred during equine behavior. Thus, under the specific language of the Equine Liability Act, the Act offers no shelter for the Defendants. {10} Turning to the Release, the district court, citing Albuquerque Tire Co. v. Mountain States Tel. & Tel.

Co., 102 N.M. 445, 697 P.2d 128 (1985), observed that “New Mexico consistently enforces signed waivers of liability in the same form as the one Berlangieri signed in this case.” The district court noted, and rejected, Plaintiffs argument that enforcement of the Release would violate the public policy of New Mexico as expressed in the Equine Liability Act. The district court concluded that “no overriding public policy exists sufficient to invoke the exception to the general rule that contractual agreements which shift the risk of injury are valid and enforceable in this state.” DISCUSSION 1.

The Release {11} We agree with the following statements regarding the relationship of public policy to freedom of contract: Whether a contract is against public policy is a question of law for the court to determine from all the circumstances of each ease.

It is clearly to the interest of the public that persons should not be unnecessarily restricted in their freedom to make their own contracts, and agreements therefore are not to be held void as being contrary to public policy, unless they are clearly contrary to what the legislature or judicial decision has declared to be the public policy, or they manifestly tend to injure the public in some way.

On the other hand the interests of the public do require that there shall be some restrictions on the freedom of persons to enter into contracts; and if an agreement binds a party to do or not to do anything, the doing or omission of which is manifestly injurious to the public interests, the courts must declare it contrary to public policy and therefore illegal and void. IX Cyclopedia of Law and Procedure 483-85 (William Mack & Howard P.

Nash eds.1903 (footnotes omitted)). {12} In the district court, Plaintiff looked solely to the Equine Liability Act, NMSA 1978, §§ 42-13-1 to -5 (1993, as amended through 1995) (hereafter the ELA), as a source of public policy offsetting the principle of freedom of contract. We agree with the district court that nothing in the ELA itself suggests that the Legislature intended the ELA to alter common-law principles governing the enforcement of exculpatory agreements.

Plaintiff erroneously assumes that the ELA enacted a quid pro quo by which providers or sponsors of equine activities receive limited liability as to injuries to riders occurring as the result of equine behavior, and, in return, are subjected to non-disclaimable liability to riders whose injuries were caused by one of the circumstances set out in

Section 42-13-4(C). We do not read the ELA as having enacted any such quid pro quo. Cf. Martin-Martinez v. 6001, Inc., 1998-NMCA-179, ¶¶ 5,6, 126 N.M. 319, 968 P.2d 1182 (characterizing exclusivity provisions of the Workers’ Compensation Act as part of the quid pro quo established by the legislative balancing interests of employers and employees).

The public policy underlying the ELA is the promotion of equine activities, not the protection of riders who are injured in the course of equine activities: “It is the purpose of the legislature to encourage owners, trainers, operators and promoters to sponsor or engage in equine activities by providing that no person shall recover for injuries resulting from the risks related to the behavior of equine animals while engaged in any equine activities.”

Section 42-13-2. Except as the ELA expressly limits liabilities, it leaves common-law rights and remedies intact, and, therefore, it is to the public policies informing the common law that we must look to determine whether the exculpatory agreement at issue in the present case is enforceable. {13} The earliest statement by a New Mexico appellate court regarding the relationship of public policy to exculpatory agreements is found in Southwestern Pub. Serv. Co. v. Artesia Alfalfa Growers’ Ass’n, 67 N.M. 108, 353 P.2d 62 (1960).

There, our Supreme Court observed “[t]he rule is well established that a provision in a contract seeking to relieve a party to the contract from liability for his own negligence is void and unenforceable, if the provision is violative of law or contrary to some rule of public policy.” Id.

Our Supreme Court went on to hold that an electric utility “cannot validly contract against its liability for negligence in the performance of a duty of public service, since such stipulation would be in contravention of public policy.” Id. at 122, 353 P.2d at 71. {14} Subsequent cases have held that public policy does not preclude enforcement of contractual provisions exculpating an investment advisor from liability for negligence in advising an investor to enter into a prohibited transaction, State ex rel. Udall v. Colonial Penn Ins.

Co., 112 N.M. 123, 812 P.2d 777 (1991); exculpating a telephone company for negligence in listing an incorrect number in a customer’s yellow pages advertisement, Albuquerque Tire Co., 102 N.M. 445, 697 P.2d 128; and, exculpating a bank acting as an escrow agent for negligence in terminating escrows, Lynch v. Santa Fe Nat’l Bank, 97 N.M. 554, 627 P.2d 1247 (Ct.App.1981).

However, each of these prior cases involved transactions in which the releasor faced a risk of economic loss; no reported New Mexico case has considered whether an exculpatory agreement is effective to relieve a commercial enterprise from liability for failing to exercise ordinary care to protect a patron from a risk of serious physical injury or death.

Whether an exculpatory clause is effective to relieve a commercial enterprise from liability for failing to exercise ordinary care to protect a patron from a risk of serious physical injury or death presents a matter of first impression for New Mexico appellate courts. {15} Exculpatory provisions, such as the Release at issue in the present case, present us with the question of whether the policies favoring freedom of contract should prevail over the policies that inform tort law. Stanley v.

Creighton Co., 911 P.2d 705, 706 (Colo.Ct.App.1996) (holding exculpatory agreement in residential lease to be violative of public policy and unenforceable against tenant).

We are not convinced that the societal interests furthered by the law of negligence are proper subjects of a private agreement between contracting parties in situations where the releasee is engaged in a business that if not conducted in the exercise of ordinary care presents a risk of serious physical injury or death to the releasor. {16} Our Supreme Court has identified the following policies furthered by the law of negligence: Our fault system of recovery ... serves the important social functions of [1] redistributing the economic burden of loss from the injured individuals on whom it originally fell, [2] deterring conduct that society regards as unreasonable or immoral, and [3] providing a vehicle by which injured victims may obtain some degree of compensation and satisfaction for wrongs committed against them and [4] by which society may give voice and form to its condemnation of the wrongdoer.

Trujillo v. City of Albuquerque, 110 N.M. 621, 624, 798 P.2d 571, 574 (1990), rev’d on other grounds, 1998-NMSC-031, 125 N.M. 721, 965 P.2d 305. Clearly, as to the second and fourth Trujillo factors, a private agreement cannot nullify society’s interest in “deterring conduct that society regards as unreasonable” or deny society the opportunity to “give voice and form to its condemnation of the wrongdoer.” Id at 624, 798 P.2d at 574.

The remaining Trujillo factors-society’s interests in “redistributing the economic burden of loss” and “providing a vehicle by which injured victims may obtain some degree of compensation”-are also implicated by ostensibly private agreements purporting to release claims for negligence resulting in personal injury: Superficially, the personal responsibility model advocated by the exculpatory agreement assumes that the person engaged in the activity bears the burdens created when he or she is injured____Even in the case of an unmarried participant, the loss of income or ability to work can produce extreme burdens.

The question then becomes, who absorbs those burdens? ... The answer to the question is that society absorbs these burdens. Specifically, a combination of private (i.e. friends and family) and public (i.e. the welfare system) assistance shoulders the weight. Mario R. Arango & William R. Trueba, Jr., The Sports Chamber: Exculpatory Agreements Under Pressure, 14 U.

Miami Ent. & Sports L.Rev. 1, 33 (1997). “Wholly apart from the higher humanitarian questions involved, the increased burden thus placed upon the state for charitable purposes would be, in and of itself sufficient to affect contracts of this character with a vital public interest.” Pittsburgh, C., C. & St. L. Ry. Co. v. Kinney, 95 Ohio St. 64, 115 N.E. 505, 508 (1916) (holding void as against public policy contract purporting to release employer from liability for physical injury to employee caused by employer’s negligence).

The effect of the Release is to require society to subsidize Defendants’ negligent operation of their business. See Doe v. Miles Labs., Inc., 675 F.Supp. 1466, 1471 (D.Md.1987) (observing that in absence of tort cause of action against manufacturers of defective products “the costs or externalities are thrust upon victims or upon society through its governmental welfare programs” and that in absence of a tort cause of action society would be subsidizing polluting or defective products). {17} Nationwide, “[ejquine activities are a popular form of recreation for an estimated thirty million people.” Terence J.

Centner, The New Equine Liability Statutes, 62 Tenn. L.Rev. 997 (1995) (emphasis added). “Riding horses may involve greater risk of fatal injury than most other sports, such as football and hockey. A study of hospital emergency room data during 1989-90 disclosed that approximately twenty percent of the total reported 121,274 horseback-related injuries were head or neck injuries.” Id. at 998 (emphasis added and footnotes omitted).

There can be no doubt that equine activities expose substantial numbers of consumers to risks of serious physical harm. {18} Moreover, we believe that many— perhaps most — New Mexicans view participation in some sport or outdoor activity as an essential part of their lives. As cases from other jurisdiction indicate, the use of exculpatory releases by proprietors of sports and recreational facilities has become epidemic. See generally Randy J.

Sutton, Annotation, Validity, Construction, and Effect of Agreement Exempting Operator of Amusement Facility from Liability for Personal Injury or Death of Patron, 54 A.L.R.5th 513 (1998). Because we doubt that there is a principled basis under New Mexico law for limiting the use of exculpatory agreements to horseback riding, a decision upholding the Release in this case will affect the legal rights of participants in many other outdoor activities and sports.

We must decide the question presented to us upon the theory that we are not adjudicating for this particular plaintiff and defendant, but for all who may desire to take advantage of the principle which shall finally be established upon this question.... [W]e must fairly look, not upon the narrowest limitations which might be placed upon the effects of a decision holding such a release valid, but rather upon the possibilities for harm therefrom to the public. Johnson v.

Fargo, 98 A.D. 436, 90 N.Y.S. 725, 731 (1904) (refusing to enforce release absolving employer from liability for negligence resulting in personal injury to employee). While an individual release may not of itself constitute a matter of public interest, exculpatory agreements as a class present a matter of public interest. Dalury v. S-K-I, Ltd., 164 Vt. 329, 670 A.2d 795, 799 (1995) (invalidating disclaimer exacted by operator of ski area; observing: that “[e]ach ticket sale may be, for some purposes, a purely private transaction.

But when a substantial number of such sales take place as a result of the seller’s general invitation to the public to utilize the facilities and services in question, a legitimate public interest arises.”). {19} We recognize that the clear majority of jurisdictions have upheld the type of release at issue here. In our view, these courts miss the crucial qualitative distinction between physical injury or death and damage to property or other purely economic interests.

We agree with the Virginia Supreme Court that cases upholding exculpatory agreements in cases involving property damage are not controlling in cases involving releases of liability for negligence resulting in personal injury. Hiett v. Lake Barcroft Cmty. Ass’n, 244 Va. 191, 418 S.E.2d 894 (1992) (distinguishing between physical injury and property damage; holding release exculpating sponsor of triathalon void as against public policy); Maucher v. Chicago, R.I. & P. Ry.

Co., 100 Neb. 237, 159 N.W. 422 (1916) (holding exculpatory provision void as against public policy; observing that “this was not a contract for the transportation of a mere piece of inanimate freight. It was a contract for the transportation of a person in whose life and safety the state has an interest.”); see also NMSA 1978, § 55-2-719(3) (1961) (“Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.”); Restatement (Third) of Torts: Prod.

Liab. § 18 (1997) (“Disclaimers and limitations of remedies by product sellers or other distributors, waivers by product purchasers, and other similar contractual exculpations, oral or written, do not bar or reduce otherwise valid products-liability claims against sellers or other distributors of new products for harm to persons.”). {20} The fact that a recreational activity involves some inherent risk of physical injury does not justify relieving the operators of recreational facilities of a duty of care to protect patrons against unreasonable and unnecessary risks.

See Dalury, 670 A.2d at 800 (refusing to enforce release relieving operator of ski resort for negligence in maintaining its premises; distinguishing between inherent risks of sport and risks that are “neither an inherent risk nor an obvious and necessary one in the sport of skiing”); Stephen D. Sugarman, Assumption of Risk, 31 Val.U.L.Rev. 833, 837-38 (1997) (citing baseball stadium as example of “no breach” case in which defendant has not acted unreasonably in exposing plaintiff to known risk because complete elimination of risk would be incompatible with enjoyment of game of baseball).

We remain confident that jurors are capable of distinguishing between risks of injury that cannot be eliminated without depriving a sport or recreational activity of its essential character and unnecessary risks that arise as the result of the proprietor’s failure to exercise due care for its patrons.

See UJI 13-1603 NMRA 2002 (“What constitutes ‘ordinary care’ varies with the nature of what is being done.”). {21} We do not mean to suggest that courts should disregard a plaintiffs own role in deciding to engage in a particular activity. “Increasingly, risky recreational activities such as skydiving, rock climbing, and hang gliding are a socially acceptable means of exercising self-affirming autonomy and experiencing the sense of self-mastery that voluntary risk taking can provide.” Donald P. Judges, Of Rocks and Hard Places: The Value of Risk Choice, 42 Emory L.J. 1, 27 (1993).

A plaintiff who engages in an activity that he knows or should know is beyond his or her capabilities is subject to the defense of his or her own comparative fault. {22} To summarize, we hold that the Release is unenforceable. Public policy imposes on commercial operators of recreational or sports facilities a non-disclaimable duty to exercise due care to avoid risks of physical injury to consumers. Our holding should not be understood as altering settled law enforcing releases in certain commercial settings where the releasor is subject solely to a risk of property damage or other purely economic loss. 2.

The Equine Liability Act {23} The ELA provides as follows: A. No person, corporation or partnership is liable for personal injuries to or for the death of a rider that may occur as a result of the behavior of equine animals while engaged in any equine activities. C. Nothing in the [ELA] ... shall be construed to prevent or limit the liability of the operator, owner, trainer or promoter of an equine activity who: (1) provided the equipment or tack, and knew or should have known that the equipment or tack was faulty and an injury was the proximate result of the faulty condition of the equipment or tack[.]

Section 42-13-4(A),(C). Equine activities include “riding an equine belonging to another.”

Section 42-13-3(B)(4). “[The] behavior of equine animals” includes “the propensity of an equine animal to ... bolt ... [or] be unpredictable.”

Section 42-13-3(C). {24} We read

Section 42-13-4(

A) to create a broad grant of immunity from liability for negligence conditioned upon two circumstances: (1) the plaintiff-rider was injured while engaged in equine activities, and (2) the plaintiffs injuries were a result of equine behavior. We interpret the words “were a result of’ to include the concept of proximate cause. As we read

Section 42-13-4(A), equine behavior need not be the sole proximate cause of the plaintiffs injuries; a defendant obtains the benefit of the ELA’s grant of immunity where equine behavior was merely one of several concurring causes of the plaintiffs injuries. See UJI 13-305 NMRA 2002 (“[Proximate cause] need not be the only cause, nor the last nor nearest cause.”). {25} Under

Section 42-13-4(0(1), a plaintiff may overcome the ELA’s grant of immunity by establishing that (1) the defendant provided equipment or tack; (2) the equipment or tack was provided in a “faulty condition”; and (3) his injuries were “the proximate result” of the faulty condition of the equipment or tack. We recognize that in

Section 42-13-4(0(1), the Legislature refers to “the proximate result,” while in

Section 42-13-4(A), the Legislature refers to “a result.” The Legislature’s employment of the definite

article “the,” rather than the indefinite

article “a,” in

Section 42-13-4(0(1) suggests that the Legislature may have intended the exception provided by

Section 42-13-4(C)(1) to apply only where faulty equipment is the sole proximate cause of a rider’s injuries. This

interpretation would significantly limit plaintiffs’ recourse to

Section 42-13-4(C)(1) to overcome the ELA’s grant of immunity. The difficulty with this

interpretation is that if faulty tack or equipment is the sole proximate cause of a rider’s injury, then equine behavior is necessarily excluded as a proximate cause of the rider’s injury. This

interpretation results in the anomalous situation in which the exception applies only where the general rule is inapplicable. {26} We conclude that a more sensible reading of

Section 42-13-4(0(1) is to treat the proximate cause element as paralleling that of

Section 42-13^4(A). Thus, we hold that the exception provided by

Section 42-13-4(0(1) applies even if the faulty condition of equipment or tack was not the exclusive proximate cause of the rider’s injuries. {27} Lastly, we consider whether physically sound equipment or tack can be considered to be in a “faulty condition” because it has been improperly applied to or positioned on a horse. We find the terms “faulty” and “faulty condition” to be reasonably susceptible to an

interpretation extending them to situations in which the fault consists of applying or positioning the equipment or tack in an unsafe manner. The ELA sacrifices the common-law rights of a class of plaintiffs-many of whom can be expected to have suffered serious physical injury as the result of the unreasonable conduct of the protected class of defendants-in order to promote equine activities.

Because we view the ELA as special interest legislation and not as remedial legislation designed to correct a shortcoming in the common law, we construe ambiguous language in the ELA in favor of Plaintiffs important common-law right to recover damages for personal injury and against limited liability. Accordingly, we hold that faulty equipment or tack includes physically sound equipment or tack that has been improperly applied or positioned in an unsafe manner. ? Applying these principles, we reach the following conclusions about the present case.

Evidence that Plaintiffs horse bolted as it approached the stable at the end of the horseback riding expedition would permit a reasonable jury to conclude that Plaintiffs injuries occurred during equine activity and were the result of equine behavior. If this were the only evidence before the district court, it properly could have granted Defendants’ motion for

summary judgment. The record, however, contains additional evidence. The affidavits of the two eyewitnesses to the accident describe the peculiar manner in which Plaintiff fell from his horse. One witness recalled observing Plaintiffs horse without a saddle approximately two minutes after the accident. The record also included a photograph showing another participant in the trail ride sitting on his horse.

Based on these eyewitness accounts and the position of the saddle as shown in the photo of the other horse, Plaintiffs expert witness stated in her affidavit that improper positioning of the saddle too far to the rear of the horse or a failure of the saddle itself caused the saddle to slip sideways off the horse. The evidence was sufficient to support reasonable inferences that Plaintiffs injuries were the proximate result of improper saddling of Plaintiffs horse and that the employee who saddled the horse knew or should have known of the faulty positioning of the tack.

This evidence creates genuine issues of material fact as to the applicability of

Section 42-13-4(0(1). We therefore affirm the district court’s denial of

summary judgment as to Defendants’ ELA affirmative defense. {29} We note that Defendants have requested a jury trial. To assist the parties and the district court on remand in applying our holding, we offer the following observations about jury instructions. {30} First, the jury should be provided with instructions setting out relevant

definitions contained in

Section 42-13-3. The definitional instructions need not include alternatives that are not at issue. For example, in the present case, there is no need to clutter the instructions with references to llamas, ponies, mules, donkeys, or hinnies. Second, the jury should be provided with instructions that enable it to make the findings required by the ELA. We also encourage the use of special interrogatories along the following lines: Question No. 1. Did Plaintiffs injuries occur while Plaintiff was engaged in “equine activities”? Answer: _Yes or No) If your answer is “No” proceed to Question No. [*].

Do not answer Question Nos. 2 through 5. If your answer is “Yes,” proceed to Question No. 2. 1 Question No. 2. Was “equine behavior” a proximate cause of Plaintiffs injuries and damages? Answer: _Yes or No) If your answer is “No” proceed to Question No. [*]. Do not answer Question Nos. 3 through 5. If your answer is ‘Yes,” proceed to Question No. 3. Question No. 3. Did Defendants provide Plaintiff with faulty tack or equipment? Answer: _Yes or No) If your answer is “No,” you are not to answer further questions.

Your foreperson must sign this special verdict, which will be your verdict for Defendants and against Plaintiffs, and you will all return to open court. If your answer is ‘Yes,” then you must proceed to Question No. 4. Question No. 4. Did Defendants know or have reason to know that they had provided Plaintiff with faulty tack or equipment? Answer: _Yes or No) If your answer is “No,” you are not to answer further questions. Your foreperson must sign this special verdict, which will be your verdict for Defendants and against Plaintiffs, and you will all return to open court.

If your answer is ‘Yes,” then you must proceed to Question No. 5. Question No. 5. Was the faulty tack or equipment provided by Defendants a proximate cause of Plaintiffs injuries and damages? Answer: _Yes or No) If your answer is “No,” you are not to answer further questions. Your foreperson must sign this special verdict, which will be your verdict for Defendants and against Plaintiffs, and you will all return to open court. If your answer is “Yes,” then you must proceed to Question No. [*]. “Question No. [*]” will be the first instruction on comparative fault.

See UJI 13-2220 NMRA 2002, Directions for Use (setting out options available to trial court in instructing jury on comparative fault). The instructions relating to ELA issues should be grouped together and should immediately precede the instructions on comparative fault and damages. CONCLUSION {31} The order of the district court granting

summary judgment in favor of Defendants is reversed and this case is remanded for further proceedings leading to trial on the merits. {32} IT IS SO ORDERED. I CONCUR: CELIA FOY CASTILLO, Judge and JONATHAN B. SUTIN, Judge (dissenting).