by John M. Simpson.
The U.S. Court of Appeals for the Seventh Circuit recently decided two consolidated appeals affirming the rejection of personal injury claims by two individuals injured while riding horseback in Wisconsin. Both plaintiff’s claims were barred by the Wisconsin “equine immunity” statute. Wis. Stat. § 895.481(2). Dilley v. Holiday Acres Properties, Inc., Nos. 17-2485 & 17-2970 (7th Cir. Sept. 25, 2018).
In the first case, the plaintiff (Dilley) had been injured during a trail ride when the horse Dilley was riding interacted with another horse, reared and threw her. Dilley, an adult in her sixties, had no horseback-riding experience and had been provided by the trail company with its most docile horse, an animal that it usually made available to children. Affirming the summary judgment issued against Dilley by the court below, the Seventh Circuit held that Dilley’s personal injury claims fell squarely within the scope of Wisconsin’s equine immunity statute, which broadly immunizes from civil liability a person’s
“acts or omissions related to his or her participation in equine activities if a person participating in the equine activity is injured or killed as the result of an inherent risk of equine activities.”
Wis. Stat. § 895.481(2). While Dilley argued that the defendant’s alleged negligence was avoidable and therefore not an inherent risk of horseback riding, the court disagreed: “the statute’s enumeration of immunized risks includes the ‘potential for a person participating in an equine activity to act in a negligent manner.'” Slip op. at 7.
Nor was the court persuaded that any of the statutory exceptions to equine immunity applied:
♦ While immunity does not apply where the provider of the horse fails to make “a reasonable effort” to determine the ability of the rider to safely ride or to safely manage the horse provided, Wis. Stat. § 895.481(3)(b), there was no dispute “that [defendants] asked Dilley about her experience, learned that she had none, and accordingly paired her with Blue, the most docile horse in their stable and the one usually assigned to small children.” Slip op. at 10.
♦ While immunity does not cover a “willful or wanton” disregard for personal safety, Wis. Stat. § 895.481(3)(d), “[n]othing in the record supports a finding that [defendants] were aware (or should have been aware) of a ‘strong probability’ that Dilley would be harmed.” Slip op. at 12.
♦ While immunity does not apply when the injury stems from equipment or tack that the operator who provided it knew or should have known was faulty, Wis. Stat. § 895.481(3)(a), Dilley’s only complaint was that “no one adjusted her stirrups,” not that “her stirrups — or any other equipment or tack — were defective in any way.” Slip op. at 12.
In the second case, the plaintiff (Brown), whose case was dismissed on the pleadings, was injured in a collision with another horse during a riding lesson conducted by the defendant stable owner. Brown brought her own horse and rode him during the lesson. Brown argued that her case fit with in the section 895.481(3)(b) immunity exception for a defendant’s failure to safely manage the horse provided because the defendant had control over the other horse that had caused the collision. The court rejected this argument because the defendant did not provide plaintiff with a horse: “A horseback-riding student who brings his own horse for a lesson supplies the horse; the instructor does not.” Slip op. at 13. Brown in fact “pleaded herself out of the exception” by affirmatively pleading in her complaint that she “provided her own horse to be used in the private lesson.” Id.