Judy Dilley v. Holiday Acres Properties, Inc.

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 17-2485 & 17-2970
JUDY DILLEY,
Plaintiff-Appellant,
v.
HOLIDAY ACRES PROPERTIES, INC.,
and STEVE KRIER,
Defendants-Appellees.
____________________
Appeals from the United States District Court
for the Western District of Wisconsin.
No. 16-cv-91-jdp — James D. Peterson, Chief Judge.
____________________
No. 17-3289
ABIGAIL E. BROWN,
Plaintiff-Appellant,
v.
COUNTRY VIEW EQUESTRIAN CENTER, INC.,
Defendant-Appellee.
____________________
2 Nos. 17-2485, 17-2970 & 17-3289
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 17-cv-342-bbc — Barbara B. Crabb, Judge.
____________________
ARGUED FEBRUARY 23, 2018 — DECIDED SEPTEMBER 25, 2018
____________________
Before FLAUM, SYKES, and HAMILTON, Circuit Judges.
SYKES, Circuit Judge. Judy Dilley and Abigail Brown were
injured while horseback riding in Wisconsin. Both women
are citizens of other states, so they sued the trail and stable
operators in federal court in western Wisconsin asserting
claims of negligence. They lost at summary judgment and on
the pleadings, respectively. Their appeals, which we have
consolidated for decision, require us to interpret and apply
Wisconsin’s equine-immunity statute. With certain excep-
tions, the statute blocks recovery for injuries that result from
“an inherent risk of equine activities.” WIS. STAT. § 895.481(2).
The courts below held that the equine-immunity statute bars
their claims.
We affirm. Dilley’s claims fall within the scope of the
statutory immunity because a trail operator’s negligence is
an “inherent risk of equine activities” as that phrase is
defined in the statute. And no exception to immunity ap-
plies. The trail operators reasonably assessed Dilley’s ability
to ride a horse and to safely manage the particular horse
they assigned to her; they did not act in willful or wanton
disregard of her safety; and the tack they provided was not
faulty. Brown concedes that her claim falls within the scope
of immunity but invokes an exception that applies if the
Nos. 17-2485, 17-2970 & 17-3289 3
defendant provided a horse for the plaintiff. Because Brown
rode her own horse, that exception is unavailable.
I. Background
Dilley’s suit comes to us from a summary judgment, see
FED. R. CIV. P. 56, so we construe the facts in the light most
favorable to her and draw all reasonable inferences in her
favor. Steve Krier operates Holiday Stables, a trail-riding
facility in Rhinelander, Wisconsin. Holiday Acres Properties,
Inc., which owns and operates an adjacent vacation resort,
owns the property on which Holiday Stables operates.
Judy Dilley reserved a ride at Holiday Stables on July 17,
2015. She informed Krier when she made the reservation
that she had no horseback-riding experience. On the day of
the ride, Krier’s employee Nicole Kremsreiter asked Dilley if
she had ridden a horse before. Dilley, who was then in her
mid-sixties, told Krier and Kremsreiter that she had no
recollection of riding a horse, though she may have done so
when she was a child. So Krier matched Dilley with Blue, his
most docile horse and one he typically assigned to small
children.
Prior to the ride, Dilley received no instruction from
Krier or Kremsreiter on how to ride a horse, and neither of
them adjusted the stirrups to fit her body nor provided her
with a helmet. Kremsreiter rode in front of Dilley during the
trail ride. Partway through the ride Dilley told Kremsreiter
that she did not “have ahold of this rope” (meaning the
reins). Kremsreiter responded, “Don’t worry; this horse
knows where it wants [to] go,” and never looked back. After
15 or 20 minutes, Blue attempted to pass Kremsreiter’s horse.
That horse kicked at Blue, prompting Blue to rear up and, in
4 Nos. 17-2485, 17-2970 & 17-3289
turn, causing Dilley to fall backward to the ground. She
sustained a head injury, fractured ribs and vertebra, and a
punctured lung.
Dilley, a citizen of Illinois, sued Holiday Acres and Krier
in federal court in the Western District of Wisconsin, invok-
ing the court’s diversity jurisdiction and seeking damages for
negligence, negligence per se, and willful and wanton
conduct. Holiday Acres moved for summary judgment,
arguing that Wisconsin’s equine-immunity statute barred
Dilley’s claims. The judge agreed. He then invited Dilley to
explain why her claims against Krier were not also barred.
Following additional briefing, the judge entered judgment
for both defendants, holding that the statute blocked Dilley’s
claims by conferring immunity on the sponsors and partici-
pants in equine activities for injuries that result from “an
inherent risk of equine activities,” WIS. STAT. § 895.481(2),
and defining that risk to include any participant’s negli-
gence, see id. § 895.481(1)(e)4. The judge also ruled that no
exception to immunity applied because Krier and
Kremsreiter reasonably assessed Dilley’s ability to engage in
horseback riding in general and to safely manage Blue in
particular, and Dilley offered no evidence of willful or
wanton conduct or faulty tack.
Abigail Brown also sustained injuries while horseback
riding in Wisconsin. Her case comes to us from a dismissal
on the pleadings, see FED. R. CIV. P. 12(b)(6), so we take the
following factual allegations from the complaint, accepting
them as true for present purposes. Country View Equestrian
Center owns and operates a horseback-riding stable in
Monroe, Wisconsin. Brown took a riding lesson from a
Country View instructor at its indoor riding facility. She
Nos. 17-2485, 17-2970 & 17-3289 5
brought Golden Gift, her own horse, to the facility and rode
him during the lesson.
As the lesson proceeded, the instructor allowed a second
horse and rider to enter the arena. The instructor was aware
that the second horse was “high spirited” and required a
very experienced rider. The instructor directed the rider of
the second horse to jump a fence in the arena. As the rider
turned the horse toward the fence to perform the jump, the
horse sped off, bucking and leaping out of control until it
collided with Golden Gift. Brown was thrown from her
horse and sustained multiple leg fractures.
Brown, a citizen of Missouri, sued Country View in fed-
eral court in the Western District of Wisconsin, invoking the
court’s diversity jurisdiction and seeking damages for negli-
gence. Country View moved to dismiss the complaint based
on the equine-immunity statute. Brown conceded that her
claim fell within the general scope of the immunity con-
ferred by the statute. She invoked an exception for claims
against a person who “[p]rovides an equine to a person” but
fails to reasonably assess the person’s ability to “engage
safely in an equine activity or to safely manage the particular
equine provided.” WIS. STAT. § 895.481(3)(b). But Brown was
injured riding her own horse—not one provided by Country
View—so the judge ruled that the exception was inapplica-
ble and dismissed the complaint.
Dilley and Brown appealed. We scheduled their cases for
argument on the same day and now consolidate them for
decision.
6 Nos. 17-2485, 17-2970 & 17-3289
II. Discussion
A. Dilley
We review a summary judgment de novo. See Laborers’
Pension Fund v. W.R. Weis Co., 879 F.3d 760, 766 (7th Cir.
2018). Dilley contends that the equine-immunity statute does
not bar her claims. She first argues that an injury caused by
the negligence of a trail operator falls outside the scope of
equine immunity. That argument cannot be squared with the
statutory text. She next invokes three exceptions to immuni-
ty; however, none applies.
1. Scope of Immunity
Wisconsin’s equine-immunity statute blocks recovery for
certain injuries sustained during equine activities. The
statute establishes a broad rule of immunity and carves out
several exceptions. Here is the general immunity rule:
[A] person, including an equine activity spon-
sor or an equine professional, is immune from
civil liability for acts or omissions related to his
or her participation in equine activities if a per-
son participating in the equine activity is in-
jured or killed as the result of an inherent risk
of equine activities.
§ 895.481(2). The term “[i]nherent risk of equine activities”
means “a danger or condition that is an integral part of
equine activities.” WIS. STAT. § 895.481(1)(e). The statute then
provides a nonexclusive list of five risks that fit within that
broad definition. Relevant here is “[t]he potential for a
person participating in an equine activity to act in a negli-
gent manner.” § 895.481(1)(e)4.
Nos. 17-2485, 17-2970 & 17-3289 7
Dilley argues that the negligence of a trail operator (like
Krier and Kremsreiter) is not an inherent risk of horseback
riding because it is avoidable and therefore not an “integral
part” of the activity. § 895.481(1)(e). The statutory text fore-
closes that argument. As we’ve just noted, the statute’s
enumeration of immunized risks includes the “potential for
a person participating in an equine activity to act in a negli-
gent manner.” § 895.481(1)(e)4. The term “equine activity”
broadly includes (among other things): “[r]iding, training, or
driving an equine or being a passenger on an equine” and
“[a]ssisting a person participating” in any of those activities.
WIS. STAT. § 895.481(1)(b)5, (1)(b)9. Krier plainly assisted
Dilley in an equine activity when he scheduled the trail ride
and selected a horse for her to ride, and Kremsreiter did so
when she led the ride. Dilley’s claim fits squarely within the
scope of the statutory immunity.
2. Exceptions to Immunity
After demarcating the scope of immunity, the statute lists
various exceptions. Dilley draws our attention to three. She
first invokes exception (3)(b), which applies when a person
[p]rovides an equine to a person and fails to
make a reasonable effort to determine the abil-
ity of the person to engage safely in an equine
activity or to safely manage the particular eq-
uine provided based on the person’s represen-
tations of his or her ability.
§ 895.481(3)(b). Everyone agrees that Krier and Kremsreiter
provided a horse to Dilley, but that is where the agreement
ends.
8 Nos. 17-2485, 17-2970 & 17-3289
Holiday Acres reads the exception as abrogating immun-
ity when an equine provider fails to make a reasonable effort
to assess the rider’s ability to do two things: (1) “engage
safely in an equine activity” as a general matter and
(2) safely “manage the particular equine provided.” Id.
Dilley proposes a different interpretation. In her view the
exception applies when the provider of a horse fails to
reasonably assess the rider’s ability to engage safely in an
equine activity and the provider fails to safely manage the
horse. As Dilley sees it, immunity is abrogated in her case
because Krier and Kremsreiter did not safely manage Blue.
The Wisconsin Supreme Court has not had occasion to
address exception (3)(b). The state court of appeals has done
so, but its decisions point in opposite directions. Compare
Hellen v. Hellen, 831 N.W.2d 430, 436 n.8 (Wis. Ct. App. 2013)
(“[T]he statute speaks in terms of a reasonable effort to make
two related but different determinations: the ability of the
person provided with an equine to engage safely in an
equine activity, and his or her ability to safely manage the
particular equine provided.”), with Mettler ex rel. Burnett v.
Nellis, 695 N.W.2d 861, 863–64 (Wis. Ct. App. 2005) (“Wheth-
er [the defendant] is entitled to immunity turns on whether
the exception to equine immunity applies: did [the defend-
ant] safely manage the horse on the day of the accident in
light of [the plaintiff’s] ability and experience?”). Without
clear or consistent guidance from the intermediate appellate
court, we’re on our own in predicting how the Wisconsin
Supreme Court would interpret the statute.
That task is not difficult. Only Holiday Acres’ reading ac-
cords with the text and structure of the statute. To begin, the
general grant of immunity broadly covers injuries resulting
Nos. 17-2485, 17-2970 & 17-3289 9
from the “[i]nherent risk of equine activities,” which specifi-
cally includes “[t]he potential for a person participating in
an equine activity … to fail to control the equine.”
§ 895.481(1)(e)4. We see no meaningful difference between
failing to “control” a horse and failing to “safely manage”
one, so if Dilley’s proposed interpretation of exception (3)(b)
is correct, it creates significant internal tension within the
statute.
Moreover, exception (3)(b) plainly centers on the provid-
er’s assessment of the rider’s abilities. The exception lifts
immunity when an equine provider fails to make a “reason-
able effort to determine the ability of the person to engage
safely in an equine activity or to safely manage the particular
equine provided based on the person’s representations of his
or her ability.” § 895.481(3)(b) (emphases added). Excep-
tion (3)(b) is thus textually limited to cases in which an
equine provider negligently fails to ascertain the rider’s ability
to ride a horse or to safely manage the specific horse provid-
ed based on the rider’s representations of his ability. It does not
abrogate immunity for a provider’s negligent management of
a horse. Courts in other states have understood similarly
worded exceptions in this way. See Taylor v. Howren,
606 S.E.2d 74, 76 (Ga. Ct. App. 2004); Estes v. Stepping Stone
Farm, LLC, 160 So. 3d 299, 306 (Ala. Civ. App. 2014).
Dilley argues in the alternative that even if Holiday
Acres’ interpretation is correct, Krier and Kremsreiter failed
to reasonably assess her ability to engage safely in equine
activity and to safely manage Blue. The record does not
support this contention. It’s undisputed that before the trail
ride began, Krier and Kremsreiter specifically determined
that Dilley was a beginner. Dilley does not explain what
10 Nos. 17-2485, 17-2970 & 17-3289
more they should have done to determine her ability to ride
a horse. She points to Krier’s deposition testimony in which
he admitted that he does not normally ask riders to demon-
strate their riding ability by taking a lap around the paddock
before the trail ride begins. But exception (3)(b) refers to the
provider’s assessment of the rider’s horseback-riding ability
“based on the person’s representations of his or her abil-
ity”—not an actual demonstration or a test ride.
Beyond that, Dilley merely laments that Krier and
Kremsreiter failed to give her riding instructions. But excep-
tion (3)(b) does not cover claims of negligent failure to
instruct. It applies only when an equine provider fails to
make a reasonable effort to determine a rider’s general
experience level and assign a horse commensurate with that
experience. Nothing like that happened here. There’s no
dispute that Krier and Kremsreiter asked Dilley about her
experience, learned that she had none, and accordingly
paired her with Blue, the most docile horse in their stable
and the one usually assigned to small children. Dilley argues
that Kremsreiter failed to reassess her ability to safely man-
age Blue while the ride was underway, especially after she
told her she did not “have ahold” of the reins. This argument
assumes that exception (3)(b) covers a provider’s negligent
failure to continuously assess a rider’s ability for the entire
duration of the ride. But nothing in the text suggests that the
exception applies if the provider fails to periodically reeval-
uate how the rider is doing. Rather, the exception focuses on
the moment when the equine provider matches the rider
with a particular horse.
Next, Dilley invokes an exception that removes immuni-
ty if the defendant “[a]cts in a willful or wanton disregard
Nos. 17-2485, 17-2970 & 17-3289 11
for the safety of the person.” § 895.481(3)(d). This exception
applies, she contends, because she was a novice horseback-
rider in her mid-sixties, and Krier and Kremsreiter allowed
her to ride without either instructions or a helmet.
The “willful or wanton” exception has not been the sub-
ject of any published state appellate decision, so we’re left to
draw on how the Wisconsin Supreme Court has defined this
term in other contexts. The phrase comes up in cases involv-
ing claims for punitive damages. At one time, if a plaintiff
proved that the defendant acted in “wanton, willful, or
reckless disregard of [his] rights or interests,” the jury could
award punitive damages. Loveridge v. Chartier, 468 N.W.2d
146, 159 (Wis. 1991). Two types of conduct satisfied that
standard:
The first type is that in which the defendant
desires to cause the harm sustained by the
plaintiff, or believes that the harm is substan-
tially certain to follow his conduct. With the
second type of conduct the defendant knows,
or should have reason to know, not only that
his conduct creates an unreasonable risk of
harm, but also that there is a strong probability,
although not a substantial certainty, that the
harm will result but, nevertheless, he proceeds
with his conduct in reckless or conscious dis-
regard of the consequences.
Id. (quotation marks omitted).
The immunity statute’s exception for “willful or wanton”
disregard of safety does not include recklessness, so it is
more demanding than the standard described in Loveridge.
12 Nos. 17-2485, 17-2970 & 17-3289
But the conduct at issue here does not satisfy even Loveridge’s
less exacting standard. Nothing in the record supports a
finding that Krier or Kremsreiter were aware (or should
have been aware) of a “strong probability” that Dilley would
be harmed.
Dilley’s argument rests largely on her deposition testi-
mony that she alerted Kremsreiter partway through the ride
that she could not reach the horse’s reins and Kremsreiter
replied, “Don’t worry; this horse knows where it wants [to]
go.” Perhaps that was negligent, but it’s not enough to show
that she disregarded an obvious “strong probability” of
harm. The failure to provide a helmet likewise does not meet
the “willful or wanton” standard. It may affect the severity
of an injury in the event of an accident, but it does not create
a strong probability that an accident will occur. And no
evidence suggests that Dilley’s age should have alerted Krier
and Kremsreiter to a strong probability of harm.
Last, Dilley relies on an exception that applies when the
defendant “[p]rovides equipment or tack that he or she
knew or should have known was faulty and the faulty
equipment or tack causes the injury or death.”
§ 895.481(3)(a). Dilley complains only that no one adjusted
her stirrups. She does not claim that her stirrups—or any
other equipment or tack—were defective in any way. This
exception plainly does not apply.
Because the equine-immunity statute blocks Dilley’s
claims, the judge correctly entered judgment for Holiday
Acres and Krier. 1
1Our holding makes it unnecessary to address Dilley’s arguments about
apparent agency and the judge’s ruling striking her expert’s report.
Nos. 17-2485, 17-2970 & 17-3289 13
B. Brown
We review the dismissal of Brown’s complaint de novo.
Collins v. Village of Palatine, 875 F.3d 839, 842 (7th Cir. 2017).
Like Dilley, Brown argues that her claim fits within excep-
tion (3)(b), but in her case the argument is a complete non-
starter. The exception applies only if the defendant “pro-
vides” a horse to a rider. § 895.481(3)(b). Brown brought her
own horse, Golden Gift, to Country View and rode him
during the lesson.
Brown argues that Country View “provided” Golden
Gift because its instructor exercised control over the lesson
and accepted Golden Gift into the arena. That’s a far-fetched
interpretation of the exception. In ordinary English, “pro-
vide” means “to supply or make available.” Provide,
MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2003).
A horseback-riding student who brings his own horse for a
lesson supplies the horse; the instructor does not. Indeed,
Brown’s complaint betrays just how bizarre her argument is:
she affirmatively alleged that she “provided her own horse to
be used in the private lesson.” (Emphasis added.) Brown has
pleaded herself out of the exception.
To bolster her argument, Brown relies on Barritt v. Lowe,
669 N.W.2d 189, 190 (Wis. Ct. App. 2003), but that case does
not help her. In Barritt a riding instructor sold the plaintiff a
horse named Cowboy, and the plaintiff boarded the horse at
the instructor’s stables. Weeks later when the plaintiff was
retrieving Cowboy from his pen, another horse attacked
him, and she sustained injuries in the process. The plaintiff
sued the instructor, invoking exception (3)(b) and insisting
that the instructor “provided” Cowboy—one of the two
horses involved in the accident—by selling him to her weeks
14 Nos. 17-2485, 17-2970 & 17-3289
earlier. The court rejected that strained interpretation, con-
cluding that the phrase “provides an equine” in excep-
tion (3)(b) means “to make available for use an equine that
the provider either owns or controls.” Id. at 193. Because the
instructor gave up all ownership and control of Cowboy
when she sold him to the plaintiff, the exception did not
apply.
Seizing on the phrase “owns or controls,” Brown reads
Barritt as support for her claim that exception (3)(b) applies
here because Country View’s instructor “controlled” the
riding lesson. Not so. Barritt holds that to “provide an
equine” for purposes of the exception means that the de-
fendant owned or controlled the equine in question and
made it available for the plaintiff’s use. A riding instructor
does not “provide” a horse owned by the riding student merely
by exercising control over the riding lesson.
Brown argues unpersuasively that reading the exception
to exclude her situation is “irrational and illogical.” In her
view it’s irrational to abrogate immunity when a riding
instructor provides a horse to a student without a reasonable
effort to match the horse to the student’s ability but to leave
immunity intact when the student rides his own horse. She
does not explain why this line-drawing is irrational. It
strikes us as entirely reasonable that a rider who owns his
own horse should bear the risk of a mismatch between his
riding ability and his horse’s temperament. As importantly,
the immunity statute and its exceptions necessarily entail
policy judgments about how much exposure to liability is
too much in this sphere of recreational activity. Unless the
statute admits of no rational justification, it’s not our job to
Nos. 17-2485, 17-2970 & 17-3289 15
second-guess how Wisconsin’s legislature has drawn these
lines.
In short, nothing in the statutory text or caselaw supports
Brown’s reading of exception (3)(b). The judge was right to
dismiss her complaint. 2
AFFIRMED.
2 Alternatively, Brown asks us to “remand this matter … with leave to
allow her to file an amended complaint.” On appeal she proposes to add
a conclusory allegation that the defendant acted with “willful and
wanton disregard” for her safety. As we’ve explained, that’s an exception
to the statutory immunity. But if Brown wanted to rely on the exception,
she could and should have raised it in the district court. She did not seek
leave to amend or otherwise alert the judge to the substance of a pro-
posed amendment, so her request for a remand for this purpose is
improper. See Hagan v. Quinn, 867 F.3d 816, 829 n.6 (7th Cir. 2017)
(affirming dismissal with prejudice; the plaintiffs’ request for leave to
amend the complaint did not explain the proposed revisions or offer a
proposed amended complaint); Wagner v. Teva Pharm. USA, Inc., 840 F.3d
355, 359 (7th Cir. 2016) (explaining that the district court did not err by
failing to order, sua sponte, an amendment of the complaint that the
plaintiff did not seek); James Cape & Sons Co. v. PCC Const. Co., 453 F.3d
396, 400–01 (7th Cir. 2006).