Deans insisted on riding a horse named Chip on a trail ride in a state park. He refused to dismount from the horse after being told that only a wrangler should ride the horse. The horse reared over on him, causing substantial injuries to Deans.
He sued the State of Nebraska under its tort claims act. The trial court found in favor of the State of Nebraska on the ground that the State was not negligent in dealing with Deans. Deans claimed he had not been warned adquately about the dangers Chip posed. The Court of Appeals, in a colorful, well-written opinion, agrees with the trial court and finds that the State of Nebraska employee was not negligent in this instance.
In the cattle-ranching country of the Sandhills of Nebraska, there is a piece of local wisdom which holds: "Ain't a man that can't be throwed--ain't a horse that can't be rode." This appeal evokes that sage observation. In this case, the man, Trampas Deans, and the horse, Chip, met up in a corral at Chadron State Park for a trail ride. When the dust had settled, Chip had unseated Deans by rearing up and falling over backward on top of Deans, thereby causing Deans to sustain a fractured pelvis and left wrist as well as a cracked hip socket. After the dust settled a little more, Deans sued the State of Nebraska under the State Tort Claims Act (see Neb.Rev.Stat. § 81-8,209 et seq. (Reissue 1994)), claiming that the State was negligent, mostly for failing to warn him about Chip. At trial, the district court for Dawes County found that the State was free of negligence and that Deans had assumed the risk of riding Chip. Being unsatisfied with that result, Deans appeals to this court.
WAS STATE NEGLIGENT?
In telling the story of this lawsuit, it appears fair to say that Deans is a pretty good cowboy, or at least, the record clearly justifies the inference that he is, or should have been. His family owned a ranch, he was raised with horses, he had worked with cattle all of his life, he had trained horses for his family's cattle operations, he had "green broke" horses, and he had horses buck as well as rear up on him. When we review a case such as this, tried to the court under the State Tort Claims Act, the trial court's findings of fact have the effect of a jury's verdict and will not be disturbed on appeal unless they are clearly wrong. McMullin Transfer v. State, 225 Neb. 109, 402 N.W.2d 878 (1987). As is well known, jury verdicts may not be set aside unless clearly wrong, and it is sufficient if there is competent evidence presented to the jury upon which it could find for the successful party. Nichols v. Busse, 243 Neb. 811, 503 N.W.2d 173 (1993). We apply the same standard here.
Moreover, when reviewing a jury verdict, just as the verdict in this bench trial is reviewed, an appellate court considers the evidence and resolves evidential conflicts in favor of the successful party. Chadron Energy Corp. v. First Nat. Bank, 236 Neb. 173, 459 N.W.2d 718 (1990). Consequently, we review the trial court's verdict in this lawsuit primarily from the standpoint of the State's evidence, although acknowledging that Deans has a slightly different version of how he and Chip parted company.
Deans and his family were in Chadron State Park for a family reunion, when Deans and his wife decided to take a trail ride. The state-employed wranglers at the stable, including Wendy Wright, instructed the patrons, including Deans, that they could pick out a horse to ride, except Chip, and stand next to that horse. We gather that the horses were already saddled, as this was a trail ride for tourists. As Wright was helping patrons mount their horses, she turned around to find Deans already mounted on Chip. Wright asked Deans to "please get down off the horse," which he refused to do. Wright asked him "politely" again, and he still would not dismount. Deans asked why he could not ride the horse, and Wright informed him that "Chip [is] a wrangler horse and [he has] been known to buck." Although Wright had seen Chip rear up with a wrangler once the previous summer when the wrangler was using him to close a gate, she did not tell Deans about that incident. Apparently understanding that Deans was determined to ride Chip despite what she said, Wright advised Deans that he should allow Chip to follow the rest of the trail riders out of the corral. Wright's experience with Chip was that he was fine as long as he was not placed in a strange situation (such as being used to close a gate) and that Deans and Chip would be fine if Chip was allowed to simply follow the other horses out on the trail. However, according to Wright, Deans held Chip back, even though Chip was visibly anxious and wanting to go with the other horses. Wright observed Deans stop the horse while still in the corral and say he was "going to give this horse an attitude adjustment before [they] went out."
It is noteworthy that Deans admits the basic accuracy of the essence of Wright's testimony. He admits in his testimony that he was told to choose any horse but Chip, but that he chose the horse anyway "[j]ust out of curiosity." Deans also admits that Wright told him that the horse had bucked that morning. Deans also admits he said that the "horse has an attitude." He testified that what he meant by this was that Chip had "some kind of a problem with its personality." After Deans stopped Chip from leaving the corral with the other horses, Wright observed Deans pull Chip's head and neck around to the point that the horse's nose was touching the left stirrup, during which time Deans was kicking Chip "very hard" in the flank. Deans denies that he was treating the horse this way, but we view the evidence favorably to the State and therefore accept Wright's version of the events leading up to the injury. While Deans had Chip's head pulled around to the stirrup and was kicking him in the flank, the horse suddenly reared and went over, falling on top of Deans, causing the injuries for which he now sues.
The trial court found that the State was not negligent and that Deans assumed the risk when he "voluntarily exposed himself to the danger of riding said horse after being informed by Wendy Wright, Head Wrangler, not to choose said horse and by refusing to dismount when requested by Ms. Wright." Deans assigns error in these two findings of the trial court, as well as in the trial judge's failure to recuse himself from the case upon Deans' motion that he do so.
Deans argues: "The [district] court's finding that the Defendant was free of negligence in this case is unsupported by the evidence, is contrary to law, and is clearly wrong." Brief for appellant at 14. Deans asserts that merely warning him that Chip had bucked was inadequate when Chip was known to " 'rear pretty well straight up.' " Brief for appellant at 15. At trial, Deans introduced expert testimony which distinguished between a horse "bucking" and a horse "rearing."
Deans has the burden of proving that the State had a duty not to injure him, that the State breached that duty, that the breach was the proximate cause of his injuries, and that the breach caused damages and the extent of those damages. See Moore v. State, 245 Neb. 735, 515 N.W.2d 423 (1994). To support his argument that Wright's warning was inadequate, Deans points to the evidence that Chip had reared up the previous summer, that rearing is more dangerous than bucking, and that Wright did not tell him that the horse had reared before. Two questions seem obvious: Was there a duty to warn? Was that duty breached?
The duty to warn others about a particular peril is not absolute; the need to warn depends upon, among other things, the age, intelligence, and information of those to whom the warning might be due, and the obligation disappears entirely when it is shown that the injured person did in fact know of and fully appreciate the peril. Tiede v. Loup Power Dist., 226 Neb. 295, 411 N.W.2d 312 (1987). It has also been held that if a dangerous condition or hazard is not readily apparent to persons likely to be injured by it, a governmental entity has a nondiscretionary duty "to warn of the danger or take other protective measures that may prevent injury as the result of the dangerous condition or hazard." (Emphasis supplied.) Lemke v. Metropolitan Utilities Dist., 243 Neb. 633, 647, 502 N.W.2d 80, 89 (1993).
In the instant case, given Deans' status as an experienced horseman who had been told that the horse had bucked that morning, there is serious question whether any further warning whatsoever was required. Moreover, a legitimate issue exists as to whether, based on one isolated incident a year earlier when the horse was being used to close a gate, Chip was a horse with a penchant to rear--thereby triggering a duty to warn, not only of bucking, but also of rearing. Although we think a reasonable fact finder could find that the warning here was specific enough, we need not decide this precise issue because of the rather unique facts of this case. Deans admitted that he was requested not to ride the horse and that he was told the horse had bucked. Wright told him not to choose Chip as his horse and then asked him twice to dismount from the horse. We believe that constitutes "other protective measures that may prevent injury as the result of the dangerous condition or hazard." See Lemke, supra. Thus, any duty to warn which can be said to have arisen by virtue of one previous incident when Chip reared with a wrangler was satisfied when the tourists, including Deans, were told to pick any horse except Chip. When Deans picked Chip, he was asked several times to dismount from the horse and was told that Chip was a wrangler's horse and that Chip had bucked that morning. Moreover, Deans was then told how to handle the horse during the trail ride--which instructions he chose to ignore. These are "other protective measures" to prevent a tourist from being injured by Chip.
We turn to what Deans argues as conclusive proof of the State's negligence--a piece of paper posted at the stable listing the stable's horses. This notice stated: "Chip--? rarely use--tourists can not ride. He will buck. If wrangler ride [sic] him, must LEAD." (Emphasis in original.) Wright testified that this note was at least a couple of years old and that the note provided inaccurate information concerning other horses. For example, one of the other horses, Doc, was described on the list as unsafe for children, yet Wright had found that Doc was one of the best children's horses at the stable. Additionally, Wright stated that other tourists had ridden Chip. Wright knew of only two problematic incidents involving Chip--once after Chip had apparently been stung by an insect (causing the tourist riding him to suffer a bruised ankle) and once when Chip reared when a wrangler tried to close a gate while on the horse. Wright testified that she did not believe Chip's rearing was a "pending danger." But, the bottom line concerning the note is that the State's wrangler, Wright, undisputedly tried to do exactly what the note said--keep a tourist, Deans, from riding Chip. Furthermore, Wright did warn Deans that Chip had been known to buck--as the note in the stable cautioned. Therefore, for us, the note from the stable adds little to support Deans' argument--in fact, it serves to enhance the conclusion that the State's wranglers used reasonable care.
Deans' evidentiary presentation devoted a fair amount of effort to distinguishing between "bucking," "crow hopping," and "rearing" because of testimony that he took Wright's advice that the horse had bucked that morning to mean only that the horse had "crow hopped." Apparently, on the continuum of danger, "crow hopping" (a half-hearted and brief effort by a horse to unseat a rider) is rather benign, bucking is in the middle, and rearing and falling over are clearly the most dangerous. We attribute little significance to Deans' testimony that he thought Wright meant that the horse had just "crow hopped," because it simply sounds like Deans' self-serving "spin" to somehow diffuse the significance of being told not to ride the horse.
The evidence, when summarized, shows that a young man raised on a cattle ranch, who had extensive experience with horses, was injured when a horse, which he had been told not to ride and asked to dismount from, reared up and fell over on him. This occurred after this experienced horseman prevented the horse from following the other trail horses, again contrary to the wrangler's instructions, and after this horseman pulled the horse's head around to the left stirrup and then began kicking him very hard a number of times in the flank. About the only thing which Wright did not do to prevent this injury was physically drag Deans off the horse, but the law, in the circumstances revealed here, does not require that she "wrestle" him to "save" him.
Before this court could reverse the factual finding of the trial court in this case that the State was not negligent, we would have to find that the trial judge was clearly wrong. Given this evidentiary record, such a conclusion on our part would, quite frankly, display a lack of "horse sense," as well as a perversion of our scope of review.
ASSUMPTION OF RISK
Deans argues that the district court erred in determining that he assumed the risk. He admits he was informed about Chip's bucking, but argues that he could not assume the risk of riding Chip without being told the horse might rear.
"[A]n appellate court is not obligated to engage in an analysis which is not needed to adjudicate the case and controversy before it." Kelly v. Kelly, 246 Neb. 55, 61, 516 N.W.2d 612, 616 (1994). Assumption of the risk is an affirmative defense which, when proved by the defendant, bars the plaintiff from otherwise recovering damages. See Hancock v. Paccar, Inc., 204 Neb. 468, 283 N.W.2d 25 (1979). The State must first be found to be negligent before it would have to invoke an affirmative defense (i.e., Deans' assumption of the risk) to otherwise bar Deans' recovery. In this case, we have affirmed the district court's conclusion that the State was not negligent. As a result, Deans cannot recover from the State, and therefore, any further discussion of assumption of the risk is unnecessary.
RECUSAL [Discussion of this issue is omitted.]
We have concluded that the district court was not clearly wrong in finding the State was free of negligence, so we do not need to determine whether Deans assumed the risk of riding Chip. We have further concluded that Deans failed to overcome the presumption of judicial impartiality and that the trial judge did not err in denying Deans' motion to recuse himself.
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