dissenting.
The majority states plaintiff signed a *942waiver1 “that she was riding at her own risk” and concluded plaintiffs affidavit did not “establish Defendant consciously or knowingly supplied Plaintiff with defective equipment or an ill-tempered horse.”
The standard employed by the majority in testing the motion for summary judgment is too stringent and not in accord with the reported cases.
An early case interpreting T.R.C.P., Rule 56, Evco Corporation v. Ross, cited by the majority, succinctly states what is required of the trial judge:
The summary judgment procedure was designed to provide a quick, inexpensive means of concluding cases, in whole or in part, upon issues as to which there is no dispute regarding the material facts. Where there does exist a dispute as to facts which are deemed material by the trial court, however, or where there is uncertainty as to whether there may be such a dispute, the duty of the trial court is clear. He is to overrule any motion for summary judgment in such cases, because summary judgment proceedings are not in any sense to be viewed as a substitute for a trial of disputed factual issues. 528 S.W.2d 24-5.
As the majority notes, citing Adams v. Roark, if the defendant’s conduct amounts to gross negligence, a release will not relieve the defendant of responsibility. In the instant case, the plaintiff asked for a gentle horse and her affidavit is evidence the horse was not gentle and she was furnished defective riding equipment. Plaintiff also offered affidavits of two other patrons of the establishment who stated that they had rented horses and had been issued defective equipment resulting in injuries.
Plaintiff is entitled to have the record considered in the light most favorable to her, which includes drawing all legitimate conclusions and inferences that may be drawn in her favor from the affidavits. Berry v. Whitworth, 576 S.W.2d 351 (Tenn.App.1978). Considering the affidavits thus, it can be reasonably inferred that the defendant either knew he was renting high-spirited horses with defective riding gear or was conducting the riding business recklessly and in careless disregard of the safety of his patrons because plaintiff was able to establish other incidents of renting horses with defective equipment which conditions were called to the attention of his employees and, in the plaintiff’s case, renting a high-spirited horse when a gentle horse was specifically requested.
The summary judgment was inappropriate and I would remand to the trial court to allow the proof to be developed on whether defendant could be held responsible for plaintiff’s injuries.2
. The document signed provides:
AGREEMENT
I fully understand and do agree that while I am here at Hay Loft Stables, I am so at my own risk, in the event that I should get hurt or injured, Hay Loft Stables shall not be held responsible.
. The issue of gross negligence was properly raised by the plaintiff in an attempt to amend the complaint by stating:
Plaintiff avers that the Defendants provided defective equipment, sub-standard horses, and improper trained personnel in the scope of operating Hayloft Riding Stables. Plaintiff avers that the sub-standard operation of the Riding Stables constitute wilful and wanton disregard for the safety of the patrons, and that Hayloft Riding Stables were operated in such a reckless manner so as to constitute gross negligence.