Burke v. McKay

• Decision Date: 21 May 2004
• Docket Number: No. S-02-1371.,S-02-1371.
• Citation: 679 NW 2d 418,268 Neb. 14
• Parties: KIM L. BURKE, AS MOTHER AND NEXT FRIEND OF TROY JOSEPH BURKE, A MINOR, APPELLANT, v. ROBERT M. McKAY ET AL., APPELLEES.
• Court: Nebraska Supreme Court

268 Neb. 14

679 NW 2d 418

KIM L. BURKE, AS MOTHER AND NEXT FRIEND OF TROY JOSEPH BURKE, A MINOR, APPELLANT, v. ROBERT M. McKAY ET AL., APPELLEES.

No. S-02-1371.

Supreme Court of Nebraska.

Filed May 21, 2004.

Maren Lynn Chaloupka and Robert Paul Chaloupka, of Chaloupka, Holyoke, Hofmeister, Snyder & Chaloupka, for appellant.

Kimberli D. Dawson and Bruce L. Hart, of Hart, Dawson & Sudbeck, P.C., L.L.O., for appellee The Nebraska High School Rodeo Association.

Robert F. Peterson, of Laughlin, Peterson & Lang, for appellee McKay Rodeo Company.

Curtis D. Ruwe, of Fitzgerald, Vetter & Temple, and C.J. Gatz for appellee Robert M. McKay.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

STEPHAN, J.

This is an action filed by Kim L. Burke, as mother and next friend of Troy Joseph Burke (Burke), seeking damages for personal injuries sustained by Burke while competing in a high school rodeo in Madison, Nebraska, on May 26, 2000 (the Madison rodeo). The action was initially brought against rodeo stock contractor McKay Rodeo Company, Inc. (MRC), and Robert M. McKay, its sole shareholder. The Nebraska High School Rodeo Association (NHSRA) was subsequently joined as a defendant. Based upon its determination that Burke had assumed the risk of injury as a matter of law, the district court for Madison County entered summary judgment in favor of all defendants. Burke's mother filed this timely appeal, which we moved to our docket pursuant to our authority to regulate the caseloads of this court and the Nebraska Court of Appeals. See Neb. Rev. Stat. § 24-1106(3) (Reissue 1995).

FACTS

Burke was born on August 20, 1981, and was 18 years old at the time of the Madison rodeo. A resident of Box Butte County, Nebraska, he grew up riding horses and began competing in rodeos when he was 10 or 11 years old. He began participating in bareback riding when he was approximately 15 years old. Burke estimated that he had competed in 60 to 80 rodeos between his sophomore year in high school and the day of his injury, which occurred a week after his graduation. Although Burke had previously been thrown from rodeo animals and had once dislocated his shoulder when riding a bull, he otherwise suffered only "bruises and bumps" prior to the injury which is the subject of this action. At the time of the Madison rodeo, Burke was the defending high school state champion in the bareback event.

The NHSRA is a nonprofit corporation doing business in the State of Nebraska. Its purpose is to offer high school students the opportunity to learn and compete in the sport of rodeo. The NHSRA sanctions 23 to 25 high school rodeos per year which are sponsored by local rodeo committees. Before sanctioning a high school rodeo, the NHSRA must first review and approve the proposal of the local committee with respect to the date and time of the rodeo, the judges, and the rodeo stock contractor.

The NHSRA sanctioned the Madison rodeo held on May 26, 2000. The rodeo was sponsored by the Northeast Nebraska High School Rodeo Club, which contracted with MRC to provide stock for the rodeo. The contract provided in part: "An event director or arena director may declare a particular animal unsatisfactory. Animals used in a contest shall be closely inspected and objectionable ones eliminated." John Mundorf, the director of NHSRA, testified that a stock contractor for a high school rodeo is expected to provide adequate stock which is safe for the participants in the sense that the animal would "not intentionally bring harm to an individual."

Prior to competing in the Madison rodeo, Burke and his parents signed a document entitled "Minor's Release, Assumption of Risk and Indemnity Agreement." This agreement was effective for 1 year beginning August 1, 1999, and was read and signed by Burke and both of his parents. It provided in relevant part:

[W]e, the undersigned, on behalf of the minor and for ourselves . . . do hereby:

1. RELEASE, DISCHARGE AND COVENANT NOT TO SUE the . . . rodeo association [and] sponsors . . . (. . . hereinafter collectively referred to as "releasees") from any and all claims and liability arising out of strict liability or ordinary negligence of releasees . . . which causes the undersigned injury, death [or] damages . . . .

2. UNDERSTAND that minor's entry into the restricted area and/or participation in rodeo events contains DANGER AND RISK OF INJURY OR DEATH TO MINOR, that . . . rodeo animals are dangerous and unpredictable, and that there is INHERENT DANGER in rodeo which we each appreciate and voluntarily assume because the minor and we choose to do so. Each of the undersigned has observed events of the type that the minor seeks to participate in. . . . WE EACH VOLUNTARILY ELECT TO ACCEPT ALL RISKS connected with the minor's entry into the restricted area and/or participation in any rodeo events.

The entry form for the Madison rodeo was signed by Burke and his father. It stated in part that in consideration for Burke's being able to participate, his parents agreed

to make no claims against the [NHSRA], sponsors of all NHSRA sanctioned activities, or their members or anyone acting through or for them, for any loss or damage, or injury to property, animals, or persons resulting from any cause, including any negligence of any person connected with any of the activities of the rodeo[.]

Signs posted at the Madison rodeo stated the following:

WARNING

Under Nebraska Law, an equine professional is not liable for an injury to or the death of a participant in equine activities resulting from the inherent risks of equine activities, pursuant to this act.

On the day of the Madison rodeo, the draw for the bareback event was posted approximately 2 hours before the competition began. Upon checking the posting, Burke discovered that he had drawn a horse designated as "No. 18." Burke remembered the number and, after looking at the horse, confirmed his belief that No. 18 was the same horse that he had seen at a May 1999 rodeo in O'Neill, Nebraska (the O'Neill rodeo). At the O'Neill rodeo, Burke had witnessed horse No. 18 go over backward or "flip" onto its rider, injuring him. Burke testified that after observing this, he formed the opinion that horse No. 18 "just went over by himself." Burke testified that he was concerned about riding horse No. 18 in the Madison rodeo because of the incident he had observed at the O'Neill rodeo. Burke talked to another competitor at the Madison rodeo, Beau Saner, and asked him if he had seen horse No. 18 "buck out" at another rodeo. Saner told Burke that he had seen horse No. 18 at another rodeo and that it "bucked straight out" without any trouble and did not go over backward onto its rider. Burke testified that based on his discussion with Saner, he did not have any apprehension about riding horse No. 18.

Burke's father had participated in rodeos and was aware of the potential for injury in rodeo competition. He attended both the O'Neill and the Madison rodeos. Burke's father witnessed horse No. 18 flip over onto its rider at the O'Neill rodeo. Prior to that time, he had never seen a horse flip over onto a rider, and it made an impression on him. He was aware that Burke had drawn horse No. 18 in the Madison rodeo but did not recognize the horse as the same one he had seen flip in O'Neill until the horse was coming into the chute for Burke's ride. When he realized it was the same horse, he was concerned. Burke's father did not, however, say anything to anyone about his concerns until after the chute had opened. He gave Burke advice about how to approach the ride but did not say anything about his concerns regarding the horse or about the possibility of turning the horse out because he felt that it "would be Troy's decision." Three or four minutes elapsed from the time Burke's father recognized horse No. 18 and when the chute opened. He agreed that both he and Burke knew that horse No. 18 was the same horse involved in the incident at the O'Neill rodeo and that they each had an opportunity to stop the ride, but chose not to do so.

Upon leaving the chute with Burke as its rider, horse No. 18 "stood up on his back legs and threw himself to the rear in such a way that he fell over backwards, suddenly crushing [Burke] between his back and the ground." Burke suffered injuries as a result.

McKay had acquired horse No. 18 in November 1998 for use in bucking events at rodeos. He testified that he bucked the horse twice with a dummy and once with a rider in the spring of 1999 and observed nothing unusual about the animal. McKay testified that the horse was first used in competition at the May 1999 O'Neill rodeo, where it flipped over onto its rider. McKay's son told McKay that he subsequently took horse No. 18 to a rodeo in Wisner, Nebraska, in July 1999 and that it bucked normally without incident. The horse was subsequently injured during that same month and put out to pasture until March 2000. The horse was not ridden between July 1999 and the Madison rodeo in May 2000. McKay testified that he knows more about horse No. 18 than anyone else and that he believed that the horse was reasonably safe or he would not have brought the horse to the Madison rodeo.

Mundorf testified that he had observed the incident involving horse No. 18 at the O'Neill rodeo. He testified that he asked McKay at that time "`if he had bucked that horse,'" to which McKay replied that he had and also told Mundorf that "`the horse was fine.'" Mundorf testified that he then asked McKay not to bring the horse to any more high school rodeos. McKay testified that Mundorf made this request after Burke's injury at the Madison rodeo in May 2000, but not before that event.

The operative second amended petition alleges that Burke's injuries were proximately caused by the negligence of NHSRA in "permitting horse #18 to be used in the rodeo when its employees and representatives knew or should have known the horse was...