|
|
GEMAN v. McLAURY
Court of Appeals of Wisconsin
2005 WL 879620
April 13, 2005
Unpublished Opinion
Summary of Opinion
Plaintiff Geman was injured when his leg caught in a slack lead rope while horses were bunched up during a colt breaking clinic. He blamed the accident on the introduction of a “volatile” horse ridden by a novice. The appellate court does no agree saying that the introduction of a “volatile” Arabian ridden by a novice in a colt breaking clinic was an inherent risk. Fact issues that were not raised at trial could not be considered on appeal.
Text of Opinion
Ronald Geman appeals from an order granting summary judgment to Buster McLaury, Elwood Allen and Markel Insurance Company and dismissing his claims arising from a June 2000 fall from his horse on Allen's farm during a horsemanship clinic being run by McLaury. We agree with the circuit court that McLaury and Allen are immune from liability under the equine immunity statute, Wis. Stat. § 895.481 (1999-2000), and we affirm.
In his amended Geman alleged that McLaury and Allen
are in the business of offering clinics on colt starting and horsemanship and
asked Geman to participate in such a clinic being run by McLaury at Allen's
farm. The clinic had six horses and riders with varying degrees of experience.
Geman alleged that he informed McLaury and Allen that he was inexperienced in
the horsemanship techniques they used. During the clinic, one of the horses went
out of control, causing the other horses to bunch together while their lead
ropes were slack. Geman's leg became entangled in the lead rope of another horse
and he was forced to jump from his horse, sustaining serious injuries.
The amended complaint was filed after the summary judgment
materials were filed and the motion was argued. The allegation about willful or wanton disregard first appeared in the amended complaint; the original complaint did not contain this allegation. The parties do not dispute that willful or wanton disregard was at issue on summary judgment.
Geman alleged that "Allen and McLaury had a duty to
provide a fit and proper environment to participate in the clinic, and/or warn [Geman]
of any dangerous conditions in participating in the clinic based upon the
experience levels of the other riders and the degree of training received by
other colts participating in the clinic." Geman alleged a breach of this duty
and that McLaury further breached a duty of care toward Geman "by failing to
oversee that the horses and riders were capable of participating in this
clinic." Geman alleged that the "manner in which McLaury conducted the colt
starting and horsemanship clinic amounted to willful and wanton disregard for
the safety of Geman, which led to his injuries."
Allen and McLaury sought summary judgment on the
ground that they were immune from suit under the equine immunity statute,
Wis. Stat. § 895.481. The circuit court agreed and granted summary judgment
on that basis.
We review decisions on summary judgment by applying
the same methodology as the trial court.
M & I First Nat'l Bank v. Episcopal Homes Mgmt., Inc., 195 Wis.2d 485,
496, 536 N.W.2d 175 (Ct.App.1995). That methodology has been recited often
and we need not repeat it here except to observe that summary judgment is
appropriate when there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law.
Id. at 496-97.
WISCONSIN STAT. § 895.481(2) grants immunity to
persons who are either equine professionals,
§ 895.481(1)(d), or equine activity sponsors,
§ 895.481(1)(c), when they engage in equine activity,
§ 895.481(1)(b), if a person participating in the equine activity is injured
as the result of an inherent risk of equine activities. [FN3]An equine immunity
notice must be posted.
Sec. 895.481(4). It is undisputed that the facts of this case implicate the
equine immunity statute. The question is whether the summary judgment record
establishes an exception to statutory immunity because Allen and McLaury "acted
in a wilful or wanton disregard for the safety of the person [Geman]."
Sec. 895.481(3)(d).
FN3. "Inherent risk of equine activities" means a danger or condition that is an integral part of equine activities, including all of the following:
1. The propensity of an equine to behave in a way that may result in injury or death to a person on or near it.
2. The unpredictability of an equine's reaction to a sound, movement or unfamiliar object, person or animal.
3. A collision with an object or another animal.
4. The potential for a person participating in an equine activity to act in a negligent manner, to fail to control the equine or to not act within his or her ability.
5. Natural hazards, including surface and subsurface conditions.
In his affidavit in opposition to summary judgment,
Geman makes the following allegations. He attended and participated in the
clinic using his own horse and equipment. He was not informed that beginners
would be participating in the clinic. An Arabian horse was placed in the pen
while the clinic was in session. Riders in the clinic were instructed to ride
with lead ropes hanging loose, and had Geman known that inexperienced riders and
such techniques were part of the clinic, he would not have participated. The
Arabian went out of control while the lead ropes were slack and created the
havoc which resulted in his injuries. Allen and McLaury knew that the Arabian
was not a proper horse to be in the pen with other horses and riders because the
Arabian was very high strung and easily spooked. McLaury was the only skilled
rider in the ring instructing the clinic participants and he did not watch the
other horses and riders when the Arabian went out of control. McLaury and Allen
did not determine that all of the riders and horses were capable of
participating in the clinic and no precautions were taken to insure the safety
of the participants. McLaury's techniques should not be used with beginning
riders.
At the summary judgment hearing, Allen and McLaury
argued that they were immune from liability under the equine immunity statute
because they were engaged in an equine activity. They argued that Geman's
allegations fell within "inherent risk of equine activities."
Wis. Stat. § 895.481(1)(e). They also argued that Geman's reliance on the
willful or wanton conduct immunity exception was not borne out in the summary
judgment record because Geman's affidavit merely alleged that a horse went out
of control and did not allege willful or wanton conduct on the part of Allen or
McLaury.
Geman countered that there were material factual
disputes regarding willful or wanton conduct which precluded summary judgment on
equine immunity grounds. In support of this claim, Geman cited: (1) the practice
of letting the horses' lead ropes go slack and letting the horses wander around
with riders, some of whom were inexperienced, aboard; (2) the placement of the
high-spirited and easily spooked Arabian horse into the pen without warning or
explanation to the riders, thereby creating a dangerous situation in which Geman
was injured; and (3) the clinic was inadequately supervised. Geman further
argued that whether McLaury and Allen engaged in willful or wanton conduct was a
jury question.
In its memorandum decision granting summary judgment,
the circuit court concluded that Geman's affidavit offered only conclusory
statements and did not demonstrate the existence of any material factual
disputes relating to the willful or wanton conduct exception to the equine
immunity statute. Further, it was undisputed that Allen and McLaury were either
engaged in an equine activity,
Wis. Stat. § 895.481(1)(b), or were equine activity sponsors,
§ 895.481(1)(c), and that the required statutory notice was posted on
Allen's property as required by
§ 895.481(4). Finally, the Arabian's participation in the clinic fell within
the inherent risk of equine activities. The circuit court applied the equine
immunity statute.
On appeal, Geman argues that there are material
factual disputes relating to the decision to place the untrained and volatile
Arabian into the pen which should have precluded summary judgment. He argues
that while McLaury was instructing novice riders, he introduced the Arabian into
the pen. Essentially, Geman argues that introducing the Arabian into the pen
should not be considered an inherent risk of equine activity; it should be
considered willful or wanton disregard for safety of others.
We disagree with Geman. The presence and conduct of
the Arabian clearly falls within the inherent risks of equine activities. These
risks include a horse's propensity to behave in a manner that may result in
injury to a person, a horse's unpredictable reactions, and the potential for a
participant in an equine activity to fail to control the horse.
Wis. Stat. § 895.481(1)(e). All of these risks apply to the incident with
the Arabian. In order to survive summary judgment and avoid statutory immunity,
Geman had to allege material facts that McLaury and Allen acted "in a wilful or
wanton disregard for the safety of the person."
Sec. 895.481(3)(d). Geman's affidavit does not allege willful or wanton
disregard or link the decisions and conduct of Allen and McLaury with this
standard of conduct.
In his appellate briefs, Geman adds facts which were
not set forth in his affidavit in opposition to summary judgment. In his
appellant's brief, he alleges that "McLaury wanted the novice riders to see him
break the Arabian horse, hoping that the stunt would serve as an inducement for
one of the participants to purchase it." In his reply brief, Geman alleges that
the Arabian was given to an amateur rider without determining her ability to
safely manage the horse, which went out of control, and he reiterates his theory
that McLaury wanted to sell the Arabian. These facts do not appear in Geman's
affidavit in opposition to summary judgment, and counsel should not have recited
them in his appellate briefs as if they did.
Finally, Geman argues that the circuit court should
not have granted summary judgment because discovery had not yet occurred. Geman
does not cite any authority for this proposition. At the summary judgment
hearing, Geman complained that he had not conducted any discovery because he was
waiting for the court's scheduling order. Geman filed his complaint on March 21,
2002; the summary judgment motion was filed on October 3, 2002. The motion was
heard on December 19. The court responded that once the summary judgment motion
was filed, Geman needed to gather facts to counter it, regardless of the status
of the scheduling order. We agree with the circuit court's assessment of Geman's
responsibilities in the face of a summary judgment motion.
Because we affirm the circuit court's grant of
summary judgment on equine immunity grounds, we need not address the other
grounds for liability.
Order affirmed.
This opinion will not be published. See
Wis. Stat. Rule 809.23(1)(b)5
Return to Mounted Accidents Page