Sapone v. Grand Targhee, Inc.

• Decision Date: 03 October 2002
• Docket Number: No. 01-8021.,01-8021.
• Citation: 308 F.3d 1096
• Parties: Joseph SAPONE and Kimberly Sapone, individually and as guardians of Daya Sapone, Plaintiffs-Appellants, v. GRAND TARGHEE, INC., a Wyoming corporation, d/b/a Grand Targhee Ski and Summer Resort, and Bustle Creek Outfitters, Inc., a Wyoming corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

308 F.3d 1096

Joseph SAPONE and Kimberly Sapone, individually and as guardians of Daya Sapone, Plaintiffs-Appellants, v. GRAND TARGHEE, INC., a Wyoming corporation, d/b/a Grand Targhee Ski and Summer Resort, and Bustle Creek Outfitters, Inc., a Wyoming corporation, Defendants-Appellees.

No. 01-8021.

United States Court of Appeals, Tenth Circuit.

October 3, 2002.

William R. Fix, Jackson, WY, for Plaintiff-Appellant Daya Sapone.

James K. Lubing, Jackson, WY, for Defendant-Appellee Grand Targhee, Inc. and R. Eric Peterson, (Monty L. Barnett with him on the brief) of White & Steele, Denver, CO, for Defendant-Appellee Bustle Creek Outfitters.

Before SEYMOUR, McKAY and HENRY, Circuit Judges.

HENRY, Circuit Judge.

Represented by her parents, Joseph Sapone and Kimberly Sapone, as guardians ad litem, Daya Sapone appeals the district court's grant of summary judgment in favor of Appellees, Grand Targhee, Inc. ("GT") and Bustle Creek Outfitters ("BCO") in this personal injury diversity suit. Daya argues that the district court erred when it found that (1) falling from a bolting horse is an inherent risk that creates no duty on the part of the defendants under the Wyoming Recreation Safety Act ("WRSA"), Wyo. Stat. Ann. §§ 1-1-121 through 123 and, (2) that no other triable issue of material fact remained. Because the record contains some evidence that suggests that Daya may have fallen from the horse from GT/BCO's negligence that was not also an inherent risk of the activity, genuine questions of material fact remain which are relevant to the question of whether the plaintiff's injury was caused by an inherent risk. Accordingly, we conclude the district court erred when it granted summary judgment for the defendants, and we REVERSE the judgment of the district court and REMAND the decision for further proceedings consistent with this opinion.

I. Background

Because we review a grant of summary judgment for the defendants, we look to the facts that are most favorable to the plaintiff. See Simms v. Oklahoma ex. rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.1999) ("[W]e view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party."); Fed.R.Civ.P. 56.

On August 31, 1999, while vacationing at the Grand Targhee Ski and Summer Resort in Alta, Wyoming, Kimberly and Joseph Sapone arranged for their two children, Daya and Sean Sapone, to participate in a two-hour, private horseback riding lesson with BCO arranged by GT's activity desk. While arranging the ride for her young children, Ms. Sapone was advised the riders would be "safe." Aplt's App. at 138. The lesson, a trail ride, was conducted by BCO, which provided the Sapone children with wrangler Donna Ricks. At the time of the lesson, Ms. Ricks had two weeks of experience conducting horseback riding lessons for BCO and was acting as a substitute for full time personnel. Ms. Ricks selected horses for the children and prepared the horses with their saddles. Although helmets were available during this outfitting, she did not provide helmets for the children.

Without further preparation, the private group embarked on their ride along a trail used for alpine skiing during the winter season. Ms. Ricks did not have the children practice in the nearby corral, nor did she provide instructions on the handling of the horse.

There is disagreement in the record about what happened toward the end of the trail ride. According to Ms. Ricks, she unleashed the halter rope of Daya's horse approximately one-quarter of a mile from the stables as they were on the return portion of their ride, descending one of the mountain slopes, an act she testified was a "stupid" thing to have done. See Aplt's App. doc. 3, at 17 (Depo. of Donna Ricks, dated June 27, 2000). However, according to Sean Sapone, the three rode in a single file, with Ms. Ricks at the lead and Daya in the rear, and at no time during the ride did Ms. Ricks hold halter ropes leading back to either his or Daya's horse. See id. doc. 5, at 81 (Depo. of Sean Sapone, dated August 21, 2000).

During their descent down the mountain trail, Daya's horse suddenly "bolted" for the stables, and Daya fell from her saddle. With her foot stuck in the stirrup, she landed on her head and was dragged along the ground for at least several paces before she could wrench her foot free and roll to her back. In the process, her head was struck by the horse's hoof. Following the accident, the group returned to the stables, where Sean spent some time in the practice corral. Daya declined to join them at this time because of her fear of getting back on the horse.

There is also disagreement in the record as to whether this was the first time the children spent in the practice corral. According to Sean Sapone, this was the first time he spent in the practice corral. See id. However, Ms. Ricks testified that both children spent time in the practice corral before the group embarked on the trail ride. See Aplt's App. doc. 3 at 012 (Depo. of Donna Ricks).

After completing the lesson, the children were instructed to wait for a parent. Despite the facts that Daya had cried for a while, complained of pain in her hip, and refused to get back on the horse, Ms. Ricks did not seek medical assistance for Daya's injuries. See id. at 27. Further, Ms. Ricks left the children and proceeded to go on her next ride, without informing either parent of the accident. Daya's mother learned of the accident several days later, after Daya complained of head and body aches.¹ Medical visits determined that Daya had received a concussion from the fall or the kick to the head. Another doctor suggested that the fall had likely produced the migraine headaches that Daya was then experiencing. Additionally, Daya may have suffered some permanent brain damage and spinal trauma, for which she has undergone some therapy.

Daya brought suit against GT and BCO in the United States District Court for the District of Wyoming. She alleged that GT/BCO breached the duty of care that they owed to her. Specifically, her complaint alleged negligence from the defendants' failure:

(a) to eliminate dangers and hazards in the animal of which [BCO] was aware or should have been aware before directing [Daya] Plaintiff to ride;

(b) to warn Plaintiffs of dangers and hazards of riding the horse, of which the Defendants had actual or constructive knowledge;

(c) to adequately instruct foreseeable users and handlers of the horses, including ... Daya ..., as to the proper and safe handling and use of the animal;

(d) to follow applicable federal regulations regarding the provision of such services to minors;

(e) to notify the parents of the accident so that proper medical attention could be sought; and

(f) to provide proper safety equipment, including but not limited to, appropriate headgear.

Aplt's App. doc. 2, at 2-5 (Complaint, filed Jan. 31, 2000).

The defendants moved for summary judgment, arguing that under the WRSA, a bolting horse is an inherent risk of horseback riding. Thus, the defendants argued that they owed Daya no duty of care and that her suit should be foreclosed because negligence suits from inherent risks have been proscribed by the Wyoming statute. The defendants also argued below, but not on appeal, that because the plaintiff's mother signed a release form which contained an exculpatory clause, summary judgment was appropriate.

Daya countered that an inherent risk is a factual question for a jury to decide. Specifically, she pointed to evidence in the record suggesting Ms. Ricks' misfeasance. Daya further argued that a jury might find gross negligence from Ms. Ricks' willful and wanton conduct, which would give the WRSA no application to the case.

The district court determined that falling from a "bolting" horse is an inherent risk of horseback riding, did not address Daya's individual claims, and did not reach the merits of the defendants' second argument. In so doing, the court cited interpretations of the WRSA by the Wyoming Supreme Court in Halpern v. Wheeldon, 890 P.2d 562 (Wyo.1995) and by this court in Cooperman v. David, 214 F.3d 1162 (10th Cir.2000). In addition, the district court considered the testimony of the plaintiff's expert witness and found that nothing in her testimony, "suggests that a horse bolting as it nears a corral is not an inherent risk of horseback riding." Aplt's App. doc. 7 at 129 (Order, filed February 16, 2001). Thus, it reasoned that under the WRSA the defendants owed the plaintiff no duty. Accordingly, the district court granted the defendants' motion for summary judgment. Daya now appeals the district court's grant of that motion.

II. Discussion

a. Standard of Review

We review the grant of summary judgment by the district court de novo. See Simms, 165 F.3d at 1326. In so doing, we apply the same legal principles as used by the district court. See id. Specifically, a grant of summary judgment requires that there be no factual questions which might affect the outcome of the suit under existing law. See Chickasaw Nation v. United States, 208 F.3d 871, 874-74 (10th Cir.2000); Fed.R.Civ.P. 56(c). Although a mere factual dispute need not preclude summary judgment, genuine issues of material fact "will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "As to materiality, the substantive law will identify which facts are material." Id. Further, when applying this standard, we "view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party." Simms, 165 F.3d at 1326. Because this is a diversity case, we apply the substantive law of Wyoming, the forum state. See Wood v. Eli Lilly & Co., 38 F.3d 510, 513 (10th Cir.1994) ("[W]e must apply the most recent statement of state law by the state's highest court."). In a diversity action, "[w]...