Howard Cooperman v. David, No. 98-8075

• Decision Date: 30 May 2000
• Docket Number: No. 98-8075
• Parties: (10th Cir. 2000) HOWARD COOPERMAN and TRUDY COOPERMAN, Plaintiffs-Appellants, v. MATT DAVID d/b/a/ WYOMING RIVERS & TRAILS, Defendant-Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1162

214 F.3d 1162 (10th Cir. 2000)

HOWARD COOPERMAN and TRUDY COOPERMAN, Plaintiffs-Appellants, v. MATT DAVID d/b/a/ WYOMING RIVERS & TRAILS, Defendant-Appellee.

No. 98-8075

UNITED STATES COURT OF APPEALS, TENTH CIRCUIT

May 30, 2000

Appeal from the United States District Court for the District of Wyoming (D.C. No. 98-CV-009-D) Robert R. Rose, III of Rose & Rose, P.C., Cheyenne, Wyoming (Keith J. Stone of the Law Offices of Keith J. Stone, San Diego, California, with him on the brief) for Plaintiffs-Appellants.

Gary R. Scott of Hirst & Applegate, P.C., Cheyenne, Wyoming for Defendant-Appellee.

Before EBEL, Circuit Judge,McWILLIAMS, Senior Circuit Judge and MURPHY, Circuit Judge.

EBEL, Circuit Judge.

Appellants Howard and Trudy Cooperman ("the Coopermans") appeal the district court's grant of summary judgment in favor of Appellee Matt David, d/b/a/ Wyoming Rivers and Trails ("WRT") in this personal injury diversity action. The Coopermans argue that the district court erred when it found that a slipping saddle is an inherent risk of horseback riding. Because this record on summary judgment establishes, without genuine dispute, that it is an inherent risk of horseback riding that a saddle may slip because of a loose cinch, and because plaintiffs put on no evidence of a more specific cause for Dr. Cooperman's accident, we conclude that there are no material questions of fact precluding summary judgment. Thus, we AFFIRM the judgment of the district court.

BACKGROUND

On August 11, 1997, Howard Cooperman ("Dr. Cooperman"), his wife Trudy, and several other family members hired WRT to guide them on a horseback ride in an area outside Pinedale, Wyoming. The ride took approximately forty-five minutes to an hour and a half to ride from Fort William to an area where the group stopped for lunch. The group then returned to Fort William by a different route.

When the Coopermans arrived at Fort William, they were ushered down to the corral where the horses were located by three employees of WRT. Once at the corral, the employees brought out the already saddled horses and matched riders to the horses based on the size, weight, height, and experience of the riders and the disposition of the horses. Dr. Cooperman had informed the WRT employees that he was a novice rider with minimal prior experience riding horses. After the riders were matched with their horses for the day, one of the employees provided the Coopermans with a brief safety orientation, which included basic riding techniques and safety issues. Following the orientation, Dr. Cooperman was helped on to his horse by one of the employees, who had previously saddled and prepared the horse.

After all of the guests were seated on their horses, two of the employees led the group on the ride. Dr. Cooperman's morning ride up to the lunch spot was uneventful. At no time during that ride did he feel his saddle slipping, nor did it seem loose to him in any way. During the lunch break, Dr. Cooperman's saddle was loosened, but was tightened down again by one of the employees before he remounted the horse for the return trip to Fort William.

Approximately fifteen minutes after the lunch break, the group stopped, either to wait for slower riders or to rest the horses. At that point, Dr. Cooperman felt his saddle begin to slide. The saddle slipped all the way around the belly of the horse, causing Dr. Cooperman to fall to the ground and suffer injury to his right shoulder area. Prior to the saddle slipping, Dr. Cooperman had not had any problems with his horse or his saddle, and had not sensed that anything was wrong with the saddle.

Dr. Cooperman brought suit against WRT in the United States District Court for the District of Wyoming alleging that WRT owed him a duty of reasonable care which was breached. Trudy Cooperman, Dr. Cooperman's wife, also brought a claim for loss of consortium as a result of WRT's allegedly negligent acts. WRT moved for summary judgment, arguing that under the Wyoming Recreation Safety Act ("the Safety Act"), a slipping saddle is an inherent risk of horseback riding. Thus, under the Safety Act, WRT owed Dr. Cooperman no duty of care. The Coopermans challenged the motion by arguing that the question of duty was for the jury and that slipping saddles were not an inherent risk of horseback riding. See Cooperman v. David, 23 F. Supp.2d 1315, 1316 (D. Wyo. 1998). The district court initially held that the question of whether slipping saddles are an inherent risk of horseback riding is a question of fact, and on that factual issue the court found there was a genuine dispute. Thus, the court denied summary judgment. After obtaining additional evidence on the question of whether slipping saddles are an inherent risk of horseback riding, primarily from the deposition testimony of plaintiffs' expert Mr. James Anderson, WRT filed a motion with the district court to reconsider its denial of summary judgment. Because the Safety Act had not been applied by a court in its current form at the time WRT filed its first summary judgment motion, and thus neither party had clear guidance as to what issues were and were not relevant to the issue of inherent risk, and because additional evidence relevant to that question was subsequently obtained, the district court construed the motion to reconsider as a renewed motion for summary judgment. Id. at 1319. See also In re Independent Serv. Orgs. Antitrust Litig., 964 F. Supp. 1479, 1482 (D. Kan. 1997) (treating a motion for reconsideration as a renewed motion for summary judgment in light of new factual issues and legal arguments). The district court found that the evidence presented by WRT, in particular the testimony of the Coopermans' expert witness, showed that slipping saddles were an inherent risk of horseback riding. Because the district court found that the Coopermans had presented no evidence to dispute this finding, nor had the Coopermans put on evidence establishing a more precise cause for the accident that was not an inherent risk, the court determined that there were no material questions of fact precluding the grant of summary judgment. Thus, the court granted summary judgment in favor of WRT. The Coopermans appeal the court's grant of summary judgment.

DISCUSSION

We review the grant of summary judgment de novo, applying the same legal standards as used by the district court. See Simms v. Oklahoma ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999), cert. denied, 120 S.Ct. 53, 145 L.Ed. 2d. 46 (1999).

Summary judgment is appropriate "if the pleadings, depositions, answers to the interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). When applying this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party.

Id. Under the summary judgment standard, a mere factual dispute will not preclude summary judgment; instead there must be a genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). "As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id.

In addition, a federal court sitting in diversity must ascertain and apply state law to reach the result the Wyoming Supreme Court would reach if faced with the same question. See Shugart v. Central Rural Elec. Coop., 110 F.3d 1501, 1504 (10th Cir. 1997). We "'review de novo a district court's determination of state law.'" Id. (quoting Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991)).

The district court determined that the evidence in the record established that slipping saddles are a characteristic of horseback riding and thus qualify as an inherent risk. Under the Wyoming Recreation Safety Act, a provider of a recreational opportunity such as horseback riding has no duty or corresponding liability to participants for injuries resulting from inherent risks. See Wyo. Stat. Ann. 1-1-123(a); see also Halpern v. Wheeldon, 890 P.2d 562, 565 (Wyo. 1995) (finding that the Safety Act employs the doctrine of primary assumption of risk, which limits the provider's duty to a participant).¹ The district court, therefore, granted summary judgment to WRT.

In order to prevail on any negligence action, a plaintiff must first establish that the defendant owed him or her a duty of care. See Halpern, 890 P.2d at 565. Whether WRT owed Dr. Cooperman a duty of care depends on whether the slipping saddle in this case was an inherent risk of horseback riding under the Wyoming Recreation Safety Act. Thus, the Coopermans carry the burden of establishing that Dr. Cooperman's injury was not caused by an inherent risk. Id. The Safety Act provides in relevant part:

(a) Any person who takes part in any sport or recreational opportunity assumes the inherent risks in that sport or recreational opportunity, whether those risks are known or unknown, and is legally responsible for any and all damage, injury or death to himself or other persons or property that results from the inherent risks in that sport or recreational opportunity.

(b) A provider of any sport or recreational opportunity is not required to eliminate, alter or control the inherent risks within the particular sport or recreational opportunity.

(c) Actions based upon negligence of the provider wherein the damage, injury or death is not the result of an inherent risk of the sport or recreational opportunity shall be preserved pursuant to W.S. 1-1-109.

Wyo. Stat. Ann. 1-1-123. The Safety Act defines inherent risk as "those dangers or...