An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-727

NORTH CAROLINA COURT OF APPEALS

Filed: 07 June 2005

ANNA YOUNG,

    Plaintiff,

v .                         Moore County
                            No. 01 CVS 1373
PRANCING HORSE, INC. and
RONNI MELTZER,

    Defendants.

    Appeal by plaintiff from an order entered 21 October 2003 by Judge James M. Webb in Moore County Superior Court. Heard in the Court of Appeals 26 January 2005.

    Webb & Graves, P.L.L.C. by Jerry D. Rhoades, Jr., for plaintiff-appellant.

    Brown, Crump, Vanore & Tierney, L.L.P. by Derek M. Crump, for defendant-appellee Ronni Meltzer; Beaver, Holt, Richardson, Sternlicht, Burge & Glazier, P.A. by F. Thomas Holt, III, for defendant-appellee Prancing Horse, Inc.

    ELMORE, Judge.

    Anna Young (plaintiff) filed suit against her employer and Ronni Meltzer   (See footnote 1)  (defendants) for injuries following an accident involving a horse and a student she was instructing.   (See footnote 2)  The trialcourt entered an order of summary judgment in favor of defendants, from which plaintiff now appeals.
    Plaintiff was an instructor at Prancing Horse, a non-profit organization that provides horseback riding and horse-related activities for individuals with disabilities. The facts, in the light most favorable to plaintiff, show that on 24 November 1998 plaintiff was assisting a young boy with mounting a horse when the injury occurred. Since the boy required the use of a wheelchair, a “mounting block” was necessary. The mounting block consists of two raised platforms, one with a ramp for access by the rider and another for the person assisting the rider. The horse is led between the two platforms. At Prancing Horse, there was a three- rail wooden fence directly behind the mounting block, which prevented escape from the area behind the block if necessary.
    On this occasion, plaintiff was on the side of the mounting block which contained the ramp. On the other side of the block, on the ground, was a part-time employee of defendant, Doris Ostrander. The young boy's mother was on the opposite platform from plaintiff, with the horse in the middle. During the mounting process, the horse's head came up and his back dropped. Despite the encouragement of Ostrander, the horse began backing up slowly, then began running backwards. Plaintiff, in an attempt to save the young boy from injury, leapt onto the horse and pulled him off. The two landed on the ground, where plaintiff covered the boy's body with her own to protect him from the now panicked horse. Plaintiff alleges that the fencing, which defendant constructed,prevented her and the boy from escaping the panicked horse. As a result, the horse fell on top of plaintiff, attempted to stand up, and fell on plaintiff again. When the horse did manage to get to its feet, it kicked and stepped on plaintiff's head and body several times. Plaintiff suffered several severe injuries including a head injury that has left her permanently blind.
    Our standard of review regarding summary judgment determinations is clear.
        Summary judgment is properly granted where the party asserting a claim shows that there is no genuine issue of material fact, and it is entitled to judgment as a matter of law. . . . Summary judgment is appropriate for the defending party when (1) an essential element of the other party's claim or defense is non-existent; (2) the other party cannot produce evidence to support an essential element of its claim or defense; or (3) the other party cannot overcome an affirmative defense which would bar the claim.

Caswell Realty Assoc. v. Andrews Co., 128 N.C. App. 716, 720, 496 S.E.2d 607, 610 (1998) (emphasis added) (internal citation omitted). Even accepting that plaintiff can prove each element of her case, defendants assert an affirmative defense to plaintiff's case which she cannot overcome, that being a signed release of liability. We agree; plaintiff cannot overcome defendants' affirmative defense.
    The general rule, subject to several exceptions, is that parties to a contract may agree to waive claims of negligence against one another. See Hall v. Refining Co., 242 N.C. 707, 709, 89 S.E.2d 396, 397 (1955). “The general rule rests on the broad policy of the law which accords to contracting parties freedom tobind themselves as they see fit, subject, however, to the qualification that contractual provisions violative of the law or contrary to some rule of public policy are void and unenforceable.” Id. at 709-710, 89 S.E.2d at 397-98.    At the time of employment plaintiff signed the following waiver:
        As a [sic] Instructor at Prancing Horse, I acknowledge the risks and potential for risks of a horseback riding program. . . . I hereby, intending to be legally bound, for myself, . . . waive and release forever all claims for damages against Prancing Horse, its board of directors, . . . and/or employees for any and all injuries and/or losses I may sustain while participating in Prancing Horse.

The undisputed evidence shows that this release was signed freely and voluntarily, and concurrent with employment. Plaintiff was a paid employee of defendants, one that was hired for her expertise and experience in horses. The evidence in the record also reveals that plaintiff knew and could appreciate the dangers associated with working with horses.
    Plaintiff's only argument that the release signed by her is inapplicable to the claim at hand is that the release does not include the word “negligence.” It is true that courts typically do not favor releases that exculpate persons from liability. See Alston v. Monk, 92 N.C. App. 59, 63, 373 S.E.2d 463, 466 (1988). In accord, any release will be strictly construed against the drafter, in this case Prancing Horse. See Hall, 242 N.C. at 709, 89 S.E.2d at 397. However, we cannot agree with plaintiff that the absence of the word “negligence” makes the release inoperable to bar this claim. The release is one for damages resulting frominjuries that are based upon the risks associated with horses. With all due regard to the severity of the injuries suffered by plaintiff, they are the type contemplated and intended by this release. Plaintiff is not alleging a cause of action against defendants for slander, assault by an employee, harassment, infliction of emotional distress, or other types of claims that may not be associated with the risks of working with horses. To the contrary, this claim is for injuries arising from an agitated horse falling on plaintiff when she could not escape its path due to a fence constructed by defendants.
    Accordingly, we affirm the order of the trial court granting summary judgment in favor of defendants.
    Affirmed.
    Judges McCULLOUGH and LEVINSON concur.
    Report per Rule 30(e).


Footnote: 1
     Defendant Ronni Meltzer is a member of the board of directors for Prancing Horse, Inc., plaintiff's employer.
Footnote: 2
     This case falls outside the scope of the Workers' Compensation Act due to the few number of employees working for defendant Prancing Horse, Inc. See N.C. Gen. Stat. § 97-2(1) (2003) (Act covers entities that employ three or more employees).

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