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VIENNA TREE FARM Parts of riders' case returning to court



Published: Fri, August 19, 2005 @ 12:00 a.m.



Four riders were ejected from a horse-pulled wagon when it went out of control.

WARREN -- A family's claim against Vienna Tree Farm, claiming injury from a horse-drawn cart gone awry during one Christmas season, is heading back to Trumbull County Common Pleas Court.

The 11th District Court of Appeals has reversed and remanded portions of the case involving Christopher, Ryan, Trisha, William and Charlene McGuire, who had appealed a common pleas court ruling.

According to the opinion written by Judge Cynthia Westcott Rice, the McGuires traveled to Vienna Tree Farm to select a Christmas tree Dec. 10, 2000. After cutting their tree, Christopher, Ryan, Trisha and William decided to go on a horse-drawn wagon ride. Charlene McGuire sat and watched as they boarded.

The wagon was driven by Richard Jewett and drawn by two horses.

Near the office, the wagon approached a decline, and the horses gained speed and entered a full gallop. The horses abruptly turned and, owing to their speed, the wagon tipped. "During the frenzy, the wagon struck several parked cars, ejecting all four (McGuires) with the driver," the document states.

Court action

On Dec. 10, 2002, the McGuires filed their complaint against the tree farm as well as Richard and Nadine Jewett. Summary judgments in 2003 were issued in favor of the Jewetts and Jeanine Bofenramp, doing business as Vienna Tree Farm. Summary judgment is a procedural device that stops litigation, before trial, for lack of material triable issues.

The McGuires appealed several errors for the higher court's review. They contend that because the wagon had no braking mechanism, reasonable minds could construe it as "defective equipment."

The appeals court said it believes there is an issue of material fact as to whether the horse-drawn wagon in question was a vehicle as defined by statute. Specifically, the wagon was being drawn by horses on private property, suggesting the path over which the wagon was pulled was not a highway as the statute so defines; however, the wagon was "on the road which led to the Vienna Tree Farm."

The record does not indicate the precise nature of the "road" on which the wagon traveled, whether it is actually "open to the use of the public as a thoroughfare for purposes of vehicular travel." If the "road" is a highway, the wagon is a vehicle and must have brakes; if the "road" does not fall within the definition of a highway, the wagon is not a vehicle and no brakes are required.

Because there is a genuine issue of material fact as to whether the wagon is a vehicle as defined in the statute, the issue of whether the wagon was "defective" cannot be determined at this point. For this limited reason, those issues submitted for review have merit, the court ruled.




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