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COURT OF APPEALS DECISION DATED AND FILED April 13, 2005 Cornelia G. Clark Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL from an order of the circuit court for Walworth County: james l. carlson, Judge. Affirmed.
Before Anderson, P.J., Brown and Snyder, JJ.
¶1 PER CURIAM. 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),[1] and we affirm.
¶2 In his amended complaint,[2] 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.
¶3 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.”
¶4 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.
¶5 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.
¶6 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.[3] 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).
¶7 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.
¶8 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.
¶9 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.
¶10 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.
¶11 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.
¶12 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.
¶13 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.
¶14 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.
¶15 Because we affirm the circuit court’s grant of summary judgment on equine immunity grounds, we need not address the other grounds for liability.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.
[2] 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.
[3] “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.
Wis. Stat. § 895.481(1)(e).