Cooperman v. David, 98-CV-009-WD.

• Decision Date: 09 June 1998
• Docket Number: No. 98-CV-009-WD.,98-CV-009-WD.
• Citation: 23 F.Supp.2d 1315
• Parties: Howard COOPERMAN and Trudy Cooperman, Plaintiffs, v. Matt DAVID, d/b/a/ Wyoming Rivers and Trails, Defendant.
• Court: U.S. District Court — District of Wyoming

23 F.Supp.2d 1315

Howard COOPERMAN and Trudy Cooperman, Plaintiffs, v. Matt DAVID, d/b/a/ Wyoming Rivers and Trails, Defendant.

No. 98-CV-009-WD.

United States District Court, D. Wyoming.

June 9, 1998.

Order Granting Reconsideration August 17, 1998.

Robert R. Rose, III, Kryra Sue Knapp, Rose & Rose, Cheyenne, WY, Keith J. Stone, Law Offices of Keith J. Stone, San Diego, CA, for Plaintiffs.

Gary R. Scott, Hirst & Applegate, Cheyenne, WY, for Defendants.

ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

DOWNES, District Judge.

The above-captioned case having come before the Court on Defendant's Motion for Summary Judgment, the Court having reviewed the materials submitted in support of and in opposition to the motion, having heard oral argument and being otherwise fully informed in the premises, FINDS and ORDERS as follows:

BACKGROUND

The factual background underlying this case is a familiar one. Plaintiffs hired the Defendant to lead them on a horseback riding excursion near Pinedale, Wyoming. Defendant supplied both the horse and the tack and led Plaintiffs and their family members to a campsite where they enjoyed a lunch. On the return trip, Mr. Cooperman stopped his horse in order to wait for others in the group. While stopped his saddle slipped sideways causing him to fall to the ground and injuring his shoulder.

The legal background of this case is anything but common. This motion centers on Wyoming's Recreation Safety Act and whether a slipping saddle is an "inherent risk" under that provision. Wyo. Stat. §§ 1-1-121 to 1-1-123 (Michie 1997). Defendant argues that slipping saddles are a natural part of the activity of horseback riding and consequently that the Plaintiff assumed the risk of such a possibility. The conclusion of his argument is that he is entitled to summary judgment. Plaintiffs challenge the Defendant's contention by arguing that the question of duty, as framed by the recreational safety act, is a question for the jury. They also argue that a slipping saddle is not an inherent risk of horseback riding or alternatively, that the Defendant breached an assumed a duty of reasonable care in maintaining the saddle.

STANDARD OF REVIEW

"By its very terms, [the Rule 56(c)] standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment the requirement is that there is no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original).

The trial court decides which facts are material as a matter of law. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. ... [W]hile the materiality determination rests on the substantive law, it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs." Id. at 248, 106 S.Ct. 2505; see also Carey v. United States Postal Serv., 812 F.2d 621, 623 (10th Cir.1987). The relevant inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 623. In considering a party's motion for summary judgment, the court must examine all evidence in the light most favorable to the nonmoving party. Barber v. General Elec. Co., 648 F.2d 1272, 1276 n. 1 (10th Cir.1981). However, "[w]hen a motion for summary judgment is made and supported as provided in [Rule 56], an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e).

DISCUSSION

In the case of Halpern v. Wheeldon, 890 P.2d 562 (Wyo.1995), the Wyoming Supreme Court found that whether a risk is inherent to a particular activity was a proper question for the jury and not for the Court. Id. at 566. Subsequent to that decision, the Wyoming Legislature revised the Recreational Safety Act. In particular, it modified the definition of inherent risk by eliminating the requirement that an inherent risk was a risk that could not "reasonably be eliminated, altered or controlled." This Court must now address whether this statutory change undermined the Halpern decision and made the question of inherent risk one for the court.

Prior to the statutory modification, the definition of inherent risk had two distinct parts. First, an inherent risk had to be one which was "characteristic of or intrinsic to any sport or recreational opportunity...." Wyo. Stat. Ann. § 1-1-122(a)(i) (Michie 1989). Second, the risk had to be one "which [could not] reasonably be eliminated, altered or controlled." Id. The amendment eliminated the second component of the definition and altered the first. As a result, inherent risks were defined as "those dangers and conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational opportunity." Wyo. Stat. Ann. § 1-1-122(a)(i) (Michie 1997).

In Halpern the Wyoming Supreme Court determined that while the question of whether a given risk qualified as an inherent risk under the statute was an issue related to duty, the question required a jury determination. Underlying the Court's decision was its judgment that the two components of an inherent risk involved an analysis of factual issues. While the elimination of the second component of the inherent risk definition removes some of that concern, it does not completely eliminate it.

The Halpern court quoted the case of Dillworth v. Gambardella, 970 F.2d 1113 (2d Cir.1992) with favor. That case stated:

To say that inherent risks are assumed by the sports participants "as a matter of law" is of little solace to defendants when the question remains: what risks in a sport are inherent, obvious or necessary to its participation, a question that ordinarily must be resolved by the jury.

Id. at 1119. The Halpern court went on to find that there were genuine issues of material facts as to whether the risks involved could be altered, eliminated or controlled and "whether the risks encountered by Mr. Halpern [were] intrinsic to the sport ...." Halpern, 890 P.2d at 566. The Halpern court was concerned with the factual issues surrounding both components of the inherent risk definition. As a result, this Court concludes that the approach adopted in Halpern v. Wheeldon remains a valid framework under the new statute.

The framework of Halpern requires the Court to go one step further and examine whether there are any issues of material fact surrounding the "inherent risk" question. The Wyoming Supreme Court noted that "[i]n appropriate cases where no genuine issues of material fact exist, the district court may decide as a matter of law that the provider does not owe a duty to the participant." Halpern, 890 P.2d at 566. The parties raise a myriad of contested facts, but it is important to isolate those facts material to the issue of "inherent risk." In essence, an inherent risk is one of two things. It is either a characteristic which is an anticipated part of the recreational activity that helps to make the activity the experience that it is, or it is an undesirable risk which is simply a collateral part of the recreational activity. Catherine Hansen Stamp, Recreational Injuries and Inherent Risks: Wyoming's Recreational Safety ActAn Update, 33 Land & Water Law Review 249, 270-71 (1998); Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1047 (Utah 1991). The only factual issues of consequence to determining whether a given risk is an inherent risk are those reflecting whether a risk may be classed among one of these two species.

In this case the parties briefs raise a number of factual contentions such as how much instruction was given to the Plaintiff before his trail ride, and whether the saddle was properly cinched. These issues, however, are largely irrelevant. The Act states that a recreational provider is not obliged "to eliminate, alter or control the inherent risks within the particular sport or recreational opportunity." Wyo. Stat. § 1-1-123(b) (Michie 1997). To base an analysis of inherent risk upon the action of the recreational provider, puts the cart before the horse. Such an analysis amounts to a determination of negligence before the determination of duty. That is not to say that the underlying causes of the risk should be completely ignored in all cases. Whether the slipping saddle was caused by a loose cinch, by an equipment malfunction or by the sabotage of an evil minded third-party may well influence whether the jury considers the risk integral to or characteristic of the activity.

In this case the parties have presented precious little evidence regarding the relationship of slipping saddles to the activity of horseback riding. Plaintiffs have submitted the affidavit of an expert witness Jim Anderson. Mr. Anderson testifies as to his opinion that a saddle will not slip if it is properly tightened. As noted above, consideration of the adequacy of the recreational provider's actions is inconsequential to determining the character of the risk. Mr. Anderson also opines that equipment failure is not an "inherent risk" of horseback riding. In so stating he reaches the ultimate legal conclusion without expressing how the risk is not characteristic of, intrinsic to or an integral part of horseback riding. The Defendant provides no documentary of testimonial evidence bearing on the inherent risk question. Instead the Defendant argues that because saddles are not permanently affixed to horses and because horses move underneath saddles they are bound to slip. They argue that the logical conclusion is that a slipping saddle is an "inherent risk" of...