The opinion of the court was delivered by: (Judge Munley)
Before the court for disposition are two motions for summary judgment. Defendant Bar-U Farm, Inc. filed one of the motions and Defendants Mountain Laurel Resort & Spa (hereinafter "Mountain Laurel") and Vacation Charters, Ltd. filed the other.*fn1 The motions have been fully briefed and are ripe for disposition.
Plaintiff sustained injuries in a horseback riding incident on November 2, 2007. (Doc. 74, Statement of Facts, Mountain Laurel, ¶ 1). At the time of the accident the plaintiff was vacationing at a "time share" she owned in the Mountain Laurel Resort & Spa located in Lake Harmony, Pennsylvania.*fn2 (Id.) On November 2, plaintiff and her husband took a trail ride at Defendant Bar-U Farm, Inc.'s (hereinafter "Bar-U") stables located at Mountain Laurel. (Id. ¶ 2). Plaintiff rode a horse named "Jack-In-TheBox." (Id.) During the trail ride, the horse galloped and plaintiff was thrown from the horse. (Doc. 68, Pl.'s Ans. to Mountain Laurel's SOF ¶ 4). Specifically, plaintiff asserts that initially Jack-In-The-Box walked very slowly, and she fell behind the others on the ride - her husband and the trail ride leader, Doreen Wehr. Eventually, plaintiff's horse overtook her husband and Wehr. A short time later, the horse speeded up to a trot or gallop, and plaintiff was thrown off the horse, striking the ground. (Doc. 67 - 6; 67 - 7; Pl.'s Ex. 6, 7, excerpts from plaintiff's deposition). Plaintiff brought suit against the defendants for the injuries she sustained. (Doc. 1, Compl.) She alleges that she was thrown from the horse due to the defendants' negligence. (Id.) Defendants move for summary judgment bringing the case to its present posture.
Plaintiff is a citizen of Delaware, and the defendants are citizens of Pennsylvania., (Doc. 1, Compl. ¶¶ 1 - 2). Thus, this court has jurisdiction pursuant to the diversity jurisdiction statute, 28 U.S.C. § 1332. Because we sit in diversity, the substantive law of Pennsylvania shall apply to the instant case. Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)).
Granting summary judgment is proper 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 judgment as a matter of law. See Knabe v. Boury, 114 F.3d 407, 410 n.4 (3d Cir. 1997) (citing FED. R. CIV. P. 56(c)). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
In considering a motion for summary judgment, the court must examine the facts in the light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence is such that a reasonable jury could not return a verdict for the non-moving party. Anderson, 477 U.S. at 248 (1986). A fact is material when it might affect the outcome of the suit under the governing law. Id. Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324.
The motions for summary judgment each raise the same three issues. Those issues are: 1) Is recovery by the plaintiff barred because she assumed the risk of her injury? 2) Did the defendants owe any duty to the plaintiff as she knowingly and voluntarily encountered the risk? and 3) Is there any evidence from which a reasonable person could infer negligence?
I. Assumption of the risk
The first issue raised by both motions is whether plaintiff's recovery is barred by the doctrine of assumption of the risk. Generally for a negligence action, the defendant must owe the plaintiff a duty of care, and breach that duty leading to harm to the plaintiff. "The basic premise of the doctrine of assumption of the risk is that a party who voluntarily and knowingly assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover damages for such harm." Malinder v. Jenkins Elevator & Mach. Co., 538 A.2d 509, 418 (Pa. Super. Ct. 1988). Under Pennsylvania law, assumption of the risk may be used as an affirmative defense in the following three situations: 1) in cases involving express assumption of risk; 2) cases of strict liability; and 3) cases where a statute specifically preserves it as an affirmative defense. Howell v. Clyde, 620 A.2d 1107, 1113 n.10 (Pa. 1993) (plurality opinion).
In the instant case, the defendants assert that the assumption of risk defense has been preserved by a statute, the "Equine Activity" law. This law provides that "[a]s to those within the scope of this act, liability for negligence shall only be barred where the doctrine of knowing voluntary assumption of risk is proven with respect to damages due ...