Melissa Marie Lobue v. Todd H. Hanson D/B/A the Barn at Four Pines Ranch ( 2021 )

Affirmed and Opinion and Concurring Opinion filed April 22, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00175-CV
MELISSA MARIE LOBUE, Appellant
V.
TODD H. HANSON D/B/A THE BARN AT FOUR PINES RANCH, Appellee
On Appeal from the 269th District Court
Harris County, Texas
Trial Court Cause No. 2017-18687
MAJORITY OPINION
In three issues, appellant Melissa Marie Lobue appeals the trial court’s final
summary judgment dismissing her claims against appellee Todd H. Hanson based
on injuries that she suffered after petting one of his horses kept on his rustic
wedding venue property. Hanson filed a motion for summary judgment on
various grounds, including the ground that provisions under Chapter 87 of the
Texas Civil Practice and Remedies Code (the “Farm Animal Act” or the “Act”)
preclude her claims against Hanson. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellee Todd Hanson owns a fifty-six acre property in Crosby which he
rents as a wedding venue called The Barn at Four Pines Ranch. Cattle and two
horses were on the ranch at the time of the incident. Within the property a corral
fence enclosed the barn where weddings take place. The corral fence contained an
opening closed off by a rope.
Robin and Delania selected The Barn at Four Pines as their wedding venue.
At some point after they arrived at the venue on their wedding day, they discovered
the horses were roaming within the area to be enclosed for patrons.
Roughly an hour before the wedding ceremony, bridesmaid Melissa Lobue
walked out to where a group of people were standing on the patio looking at the
horses. Lobue walked to the horses and began to pet one of the horses, Shiloh.
When she moved to pet the other horse, Shiloh disagreed, and grabbed her by the
arm, shook her, and tossed her on the ground. Lobue brought this personal injury
suit against Hanson for damages.
Lobue’s Claims
Lobue’s Original Petition raised claims of “premise liability”, “negligence”
and “negligence per se”.1
Lobue’s premise liability claim alleges that Hanson failed to adequately
warn her about the horse, failed to warn of its vicious tendencies, and that by
leaving the horse “loose”, “unattended” and “in an unsafe place”, Hanson breached
his duty as owner of the facility to keep the property in reasonably safe condition.
Her negligence claims — based on duties arising from Hanson’s
1
Lacking any reference or suggestion of a statutory violation, Lobue does not really assert any
negligence per se claim—though as discussed below, the parties litigated the merits of a “strict
liability” claim.
2
responsibilities as a horse-owner — are based on the same alleged conduct,
“[f]ailing to warn Plaintiff about the horse’s presence and/or vicious tendencies,
[f]ailing to maintain the horse in a safe place, [f]ailing to properly handle the horse,
[and] [f]ailing to exercise reasonable care to prevent foreseeable harm by the
horse.”
Hanson’s Answers and Traditional and No Evidence Summary Judgments
Hanson filed his original answer generally denying Lobue’s allegations, and
later filed an amended answer which added his limitation of liability defense under
the Farm Animal Act. Hanson filed his consolidated Motion for Traditional and
No-Evidence Summary Judgment. The traditional portion of the motion sought
dismissal of all of Lobue’s claims on two grounds: first, the Farm Animal Act
precludes Lobue’s claims; and second, the assertion that uncontroverted evidence
concerning Hanson’s knowledge of Shiloh’s habits, tendencies and disposition
conclusively established the absence of an essential element to Lobue’s negligence,
strict liability, and premise liability claims.
Hanson’s no evidence summary judgment also sought to dispose Lobue’s
“negligence and negligence handling” claims, challenging the sufficiency of
Lobue’s evidence (1) “to support a duty on the part of Hanson”; (2) “of a breach of
that duty”; (3) and “of the proximate cause element of her negligence/negligent
handling claim”. With respect to the foreseeability element of proximate cause,
Hanson argued that Lobue had no evidence that Hanson either knew of Shiloh’s
disposition to injure persons or of a dangerous propensity or had constructive
knowledge of same.
Lobue’s Response to Hanson’s Traditional and No Evidence Summary Judgment
In her response to Hanson’s traditional and no evidence summary judgment
motions, Lobue argued that the Farm Animal Act was inapplicable for various
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reasons, and, alternatively, even if the Act did apply so do exceptions which
operate to remove Hanson’s liability-shield. To address Hanson’s no-evidence
challenges, Lobue attached and referred to her own deposition and depositions of
Hanson, Billy Richardson, and the bride and groom. In support of her response,
Lobue focused on testimony that the horse roamed without supervision, that the
bride and groom had requested the removal of the horse before the incident and the
horse was not removed, the lack of warning signs posted on the property, and the
lack of a sufficient barrier preventing the horses from entering the enclosed area
designated for human guests only.
Summary Judgment
On November 28, 2018, trial court issued its final order granting Hanson’s
Traditional and No Evidence Motion for Summary Judgment “in all things”, and
ordered that Hanson and Lobue were responsible for their own costs. Lobue
timely filed a motion for new trial, which was denied by operation of law and now
appeals the trial court’s summary judgment.
II. ISSUES AND ANALYSIS
On appeal, Lobue asserts three issues, tracking each of the trial court’s
implicit rulings. First, she argues that she raised fact issues as to her negligence,
premise liability, and strict liability claims. In her second and third issues, Lobue
complains that the trial court erred in implicitly concluding that her claims against
Hanson fell within the scope of the Farm Animal Act, and in concluding that none
of the statutory exceptions applied.
Standard of Review
In a traditional motion for summary judgment, if the movant’s motion and
summary-judgment evidence facially establish its right to judgment as a matter of
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law, the burden shifts to the nonmovant to raise a genuine, material fact issue
sufficient to defeat summary judgment. M.D. Anderson Hosp. & Tumor Inst. v.
Willrich, 28 S.W.3d 22, 23 (Tex. 2000). In reviewing a no-evidence summary
judgment, we ascertain whether the nonmovant pointed out summary-judgment
evidence raising a genuine issue of fact as to the essential elements attacked in the
no-evidence motion. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 206–
08 (Tex. 2002). In our de novo review of a trial court’s summary judgment, we
consider all the evidence in the light most favorable to the nonmovant, crediting
evidence favorable to the nonmovant if reasonable jurors could, and disregarding
contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez,
206 S.W.3d 572, 582 (Tex. 2006). The evidence raises a genuine issue of fact if
reasonable and fair-minded jurors could differ in their conclusions in light of all of
the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236
S.W.3d 754, 755 (Tex. 2007). When, as in this case, the order granting the motion
for summary judgment does not specify the grounds upon which the trial court
relied, we must affirm the summary judgment if any of the independent summary-
judgment grounds is meritorious. FM Props. Operating Co. v. City of Austin, 22
S.W.3d 868, 872 (Tex. 2000).
The Farm Animal Act
Because the Farm Animal Act could provide a complete bar to all of
Lobue’s claims, we first address her second and third issues, whether Farm Animal
Act applies, and if so whether any the statutory exceptions would permit Ms.
Labue’s claims to proceed.
The Farm Animal Act precludes liability against “any person, including a
farm animal activity sponsor, farm animal professional, livestock producer,
livestock show participant, or livestock show sponsor,” for “property damage or
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damages arising from the personal injury or death of a participant in a farm animal
activity or livestock show if the property damage, injury, or death results from the
dangers or conditions that are an inherent risk of a farm animal activity or the
showing of an animal on a competitive basis in a livestock show.” Tex. Civ. Prac.
& Rem. Code § 87.003 (West 2017). Section 87.003 explicitly identifies five
qualifying “dangers or conditions that are an inherent risk of a farm animal
activity.” Id. § 87.003(1)-(5). Hanson’s motion identified three of the five statutory
inherent risks as implicated by the facts of the case:
(1) the propensity of a farm animal or livestock animal to behave in
ways that may result in personal injury or death to a person on or
around it;
(2) the unpredictability of a farm animal's . . . reaction to sound, a
sudden movement, or an unfamiliar object, person, or other animal;
. . . and
(5) the potential of a participant to act in a negligent manner that may
contribute to injury to the participant or another, including failing to
maintain control over a farm animal or livestock animal or not acting
within the participant's ability
Id. § 87.003; Rodriguez v. Waak, 562 S.W.3d 570, 576–77 (Tex. App.—
Houston [1st Dist.] 2018), aff'd, 603 S.W.3d 103 (Tex. 2020). Hanson’s traditional
motion for summary judgment based on the Act, required that he state the specific
grounds and conclusively establish all essential elements of his limitation-of-
liability affirmative defense as provided under section 87.003. See KCM Financial
LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015). By invoking immunity under
87.003, Hanson was required to conclusively prove (1) Hanson qualified for (or
had standing) to seek protection under the Act, (2) Lobue qualified as a
“participant”, (3) “in a farm animal activity”, and (4) that the injury was a result of
a statutory inherent risk. See Tex. Civ. Prac. & Rem. Code § 87.003. Hanson’s
summary-judgment motion describes and was supported by unchallenged proof
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that Hanson was the owner of property that functions as an event site with horses
and cattle kept for non-ranching purposes, and that the activity that gave rise to
Lobue’s injuries was her approaching and petting two unattended horses. The first
and last essential elements were not the basis of significant dispute in summary
judgment papers or on appeal. The trial court could fairly conclude that Hanson
qualified as “any person” entitled to seek protection under the Act, and that the
activity, an unfamiliar person’s direct contact with horses, involved an inherent
risk. See Loftin v. Lee, 341 S.W.3d 352, 354 (Tex. 2011); See also Johnson v.
Smith, 88 S.W.3d 729, 731 (Tex. App.– Corpus Christi 2002, no pet. h.).
The Act specifically limits liability arising from the personal injury or death
of a “participant”, defined in relevant part as “a person who engages in [a farm
animal] activity, without regard to whether the person is an amateur or professional
or whether the person pays for the activity or participates in the activity for free”.
Tex. Civ. Prac. & Rem. § 87.001(9)(A). The Act generally applies to participants
at shows and events but excludes ranch employees in the course of their
employment. See Waak v. Rodriguez, 603 S.W.3d 103, 109–10 (Tex. 2020).
“Farm animal,” is defined in the statute to include “an equine animal”,
another defined term, which itself includes “horse, pony, mule, donkey, or hinny.”
87.001(2), (2-a)(A).
“Farm animal activity,” includes a number qualifying activities. Hanson
argues that the following apply: an “event. . .that involves farm animals,” “riding,
inspecting, evaluating, handling, loading or unloading a farm animal belonging to
another,” and “an informal farm animal activity, including a ride, trip, or hunt that
is sponsored by a farm animal activity sponsor.” Id. § 87.001(3)(A), (D), (E). The
phrase “engages in a farm animal activity” means:
riding, handling, training, driving, loading, unloading, assisting in the
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medical treatment of, being a passenger on, or assisting a participant
or sponsor with a farm animal. The term includes management of a
show involving farm animals. The term does not include being a
spectator at a farm animal activity unless the spectator is in an
unauthorized area and in immediate proximity to the farm animal
activity.”
Id. § 87.001 (1).
Lobue contends that she was not a participant because she was not engaged
in a farm animal activity, therefore rendering her claims outside the scope of the
statute.2 Conversely, Hanson describes Lobue’s injuries as occurring while
“handling” Shiloh, and as part of an “event” involving a farm animal.
The word “handling,” is used within the statutory meaning of two above
defined-phrases, “[f]arm animal activity” and “[e]ngaged in farm animal activity.”
In Waak, the Supreme Court explained that “handling” (like the words “loading”
and “unloading” as used in the statute) “obviously ha[s] meaning outside the
ranching context,” 603 S.W.3d at 110, and concluded that the type of handling
addressed by the Farm Animal Act is not the same handling that a ranch hand
typically engages in. Handling is not defined in the statute.
If the meaning of the statutory language is unambiguous, we adopt the
interpretation supported by the plain meaning of the provision’s words. St. Luke’s
Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997). We must not engage
in forced or strained construction; instead, we must yield to the plain sense of the
words the Legislature chose. See id. The Oxford Dictionaries define “[h]andle,”
to mean “feel or manipulate with the hands,” “control someone or something”, or
“deal with (someone or something)”.3 The U.S. Department of Agriculture defines
2
There is no dispute that Shiloh, the offending animal described in Lobue’s claims is a horse,
that a horse falls within in the statute’s definition of “equine animal”, and that in turn, an “an
equine animal” is a “farm animal”. 87.001(2), (2-a)(A).
3
See Oxford Online Dictionary, “handle”, https://www.lexico.com/definition/handle.
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“[a]nimal handling” as “a term that describes how humans work with, respond to,
and interact with animals within their surroundings.” We cannot conclude that the
trial court would have erred if it found after reviewing Lobue’s own testimony
describing her interaction with Shiloh, that when she was petting Shiloh, she was
“handling” him in this literal sense of the term, and accordingly that she was a
participant in a farm animal activity. See Waak, 603 S.W.3d at 109–10; See
Young v. McKim, 373 S.W.3d 776, 781 (Tex. App.—Houston [14th Dist.] 2012,
pet. denied) citing Johnson v. Smith, 88 S.W.3d 729, 732 (Tex. App.—Corpus
Christi 2002, no pet.) (finding that under the predecessor statute, plaintiff leading a
stallion to its paddock fell within the common usage of “handling,” “training” and
“assisting in the medical treatment of an equine.”).
The trial court would not have erred in finding that Robin and Delania’s
wedding event qualifies as an “event. . .that involves farm animals,” and therefore
a fulfills the meaning of a “farm animal activity.” The venue’s website mentions
as an attraction the feature of livestock on the property. And although Robin and
Delania did not elect of have the pictures-with-horses feature a part during their
wedding, at some weddings at Four Pines Ranch, guests take pictures with the
horses. Hanson testified that as part of the contract with the bride and groom, he
advised that they were responsible for warning the guests not to approach the
animals. Thus, even if the wedding were to take place as intended with animals in
the backdrop, the parties contemplated possible human interaction with the
animals.
The trial court did not err in its implicit finding that the Farm Animal Act
applied to Lobue’s claims against Hanson arising from injuries she suffered after
petting Shiloh because at the time Lobue was a person engaging in a farm animal
activity and was a “participant” within the meaning of the Act.
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In her opening brief, Lobue makes passing reference to the exclusion of
some “spectators” from the Act’s definition of “engages in a farm animal activity”:
Furthermore, [Lobue] is not considered a participant under The Texas
Farm Animal Liability Act. “Engages in a farm animal activity”
means riding, handling, training, driving, loading, unloading, assisting
in the medical treatment of, being a passenger on, or assisting a
participant or sponsor with a farm animal. [Tex. Civ. Prac. & Rem.
Code. § 87.001.] The term includes management of a show involving
farm animals. Id. The term does not include being a spectator at a
farm animal activity unless the spectator is in an unauthorized
area and in immediate proximity to the farm animal activity.
Here, [Lobue] did none of the above, thus she is not considered a
participant under the Act.
(emphasis added).
Construing Lobue’s brief liberally, we cannot conclude that by simply
stating verbatim the third sentence contained in the statutory definition of “engages
in a farm animal activity”, which operates to exclude some “spectators”, that
Lobue adequately briefed any argument that she was a “spectator” at all, much less
in a manner that excluded her from the definition “engages in a farm animal
activity” or rendered her a non-participant, or that the trial court erred in its
implicit finding that she was not a “spectator”. Tex. R. App. P. 38.1(i); Fox v.
Alberto, 455 S.W.3d 659, 663, n.1 (Tex. App.—Houston [14th Dist.] 2014, pet.
denied).
We next consider whether Lobue raised a fact issue on either of the two
exceptions to the liability shield that she raised in her summary judgment response.
First, Labue argues that Hanson failed to post warnings in violation of section
87.005, which requires that a farm animal professional or livestock show sponsor
is required to post warnings in their contracts and at their facilities. However,
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section 87.005 is not in fact a statutory exception to the liability shield.4 Rather,
while the provision mandates signage, it is without any defined penalty for non-
compliance. Lobue has not shown and we have not found authority that converts
the failure to provide the warning into a basis for removing the liability protection
afforded by the Act.
Second, Lobue argues that section 87.004(2) applies, which provides that
limitation of liability does not apply if:
(2) the person provided the farm animal or livestock animal and the
person did not make a reasonable and prudent effort to determine the
ability of the participant to engage safely in the farm animal activity
or livestock show and determine the ability of the participant to safely
manage the farm animal or livestock animal, taking into account the
participant's representations of ability;
Though there is no evidence suggesting that Hanson made any efforts to
determine any of the wedding participants’ abilities to engage safely with the
horses, the exception would not apply because Lobue did not provide evidence that
Hanson’s failure to make an ability-assessment of Lobue was the cause of her
damages.5 The Supreme Court has made clear that the exception is limited to
situations were “the failure to make the required determination is itself the cause of
the damage.” Loftin v. Lee, 341 S.W.3d 352, 359 (Tex. 2011). Lobue failed to
assert this theory in her petition or put forth the evidence of the causal relationship.
4
We note that the Act’s exceptions are listed in section 87.004 whereas the warning notice
provision is in the next subsection, 87.005.
5
At best, Lobue asserted in her summary judgment response that “Todd Hanson failed to make
reasonable efforts to determine whether the wedding guests had the knowledge and ability to
safely interact unsupervised with the horses at his venue.” But even in her response, Lobue did
not allege, or put forth evidence of a causal connection.
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III. CONCLUSION
Because Lobue has not shown that the trial court erred in granting Hanson’s
summary-judgment motion under the theory that her claims were precluded under
the Farm Animal Act, we overrule Lobue’s second and third complaints and affirm
the trial court’s judgment.
/s/ Randy Wilson
Justice
Panel consists of Justices Jewell, Spain, and Wilson (Spain, J., concurring).
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