Kathleen Burdick and Bruce Burdick, Individually, and as Husband and Wife v. Julie Romano

FILED
May 05 2020, 8:39 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANTS ATTORNEY FOR APPELLEE
Duke T. Escue Robert F. Ahlgrim, Jr.
Hilary Ruth Hall State Auto Insurance House
Walter J. Alvarez Counsel
Walter J. Alvarez, P.C. Carmel, Indiana
Crown Point, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kathleen Burdick and Bruce May 5, 2020
Burdick, Individually, and as Court of Appeals Case No.
Husband and Wife, 19A-CT-2739
Appellants-Plaintiffs, Appeal from the
Lake Circuit Court
v. The Honorable
Marissa J. McDermott, Judge
Julie Romano, Trial Court Cause No.
Appellee-Defendant. 45C01-1310-CT-152
Kirsch, Judge.
[1] Kathleen Burdick (“Burdick”) and Julie Romano (“Romano”) were riding their
horses in a horse arena when Burdick fell and suffered serious injuries. Burdick
and her husband Bruce Burdick sued Romano, and the jury returned a verdict
for Romano. Burdick raises four issues, which we consolidate and restate as:
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I. Whether the trial court abused its discretion by refusing to read
jury instructions on negligence;
II. Whether the trial court abused its discretion by reading a jury
instruction on inherent risks of equine activities; and
III. Whether the trial court abused its discretion by reading a jury
instruction on incurred risk.
[2] We affirm.
Facts and Procedural History
[3] Romano was renting and living on a property in Lowell, Indiana, which she
called “Serenity Farms.” Tr. Vol. 2 at 111. On October 31, 2011, Burdick, and
her friend, Kathy Jacobsma (“Jacobsma”), took Burdick’s horse Chip to
Serenity Farms for boarding and training. Tr. Vol. 3 at 228-32. Burdick is an
expert in horse training and riding. Id. at 219-20; Tr. Vol. 4 at 59, 61. Burdick
came to Serenity Farms almost every day to train Chip in the horse arena. Tr.
Vol. 3 at 231. The arena was specifically and exclusively designed for horse
riding and training. Tr. Vol. 4 at 66. It was not designed or used for any other
purpose, such as providing a venue for cattle shows. Id.
[4] Chip was a gelded, laid back, and lazy horse. Tr. Vol. 3 at 223. Romano’s
horse Sheza was aggressive and known for kicking other horses. Id. at 239.
Burdick was aware that Sheza had a history of kicking other horses and had
witnessed Sheza kick other horses. Id. Romano acknowledged that Sheza was
aggressive, posting a picture of Sheza on Facebook and stating: “[I] love love
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love this pic! It’s a classic Sheza pic! Ears pinned back and everything. My
pretty moody bitch! Haha! Gotta love her!” Tr. Vol. 2 at 132-33.
[5] On November 5, 2011, Burdick and Jacobsma went to Serenity Farms to ride
horses in a pasture with Romano. Id. 241-42; Tr. Vol. 3 at 235-36. Romano
warned Burdick and Jacobsma several times to stay away from Sheza because
Sheza tended to back up and kick other horses. Tr. Vol. 2 at 247; Tr. Vol. 3 at
239.
[6] Three days later, on November 8, 2011, Burdick returned to Serenity Farms
and began to ride Chip in the arena. Tr. Vol. 3 at 240-41. Soon thereafter,
Romano entered the arena with Sheza and set up poles, and Burdick and
Romano began to ride their horses around the poles. Id. at 241-43. Burdick
then demonstrated to Romano how desensitized and laid-back Chip was by
dismounting Chip, taking off her hoodie, and placing her hoodie over Chip’s
head. Id. at 243. Chip remained calm. Id. Burdick then got back on Chip, and
she and Romano began riding their horses around the perimeter of the arena.
Id. at 244. About two minutes later, Romano stopped and dismounted Sheza.
Id. Burdick was approximately twelve feet behind Sheza and still sitting on
Chip. Id. Burdick assumed that Romano was just going to tighten Sheza’s
saddle, but Romano dropped Sheza’s reins and walked away from Sheza
without tying her up. Romano headed to the southwest corner of the arena,
where there was a barrel that she intended to retrieve to show Burdick a trick in
which Sheza would push the barrel with her nose as Romano was riding her.
Tr. Vol. 2 at 137; Tr. Vol. 3 at 244-45.
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[7] Burdick testified that as Romano returned with the barrel, Sheza spooked and
suddenly started to back up, with Sheza’s rear end coming directly towards
Burdick and Chip. Tr. Vol. 3 at 245. Burdick testified that she “saw two feet
hit, felt a blow under her chin, and then everything went black.” Id. Burdick
testified that this happened so quickly that she did not have time to react or take
evasive maneuvers. Tr. Vol. 4 at 69-70.
[8] At trial, Romano provided a different account. She testified that she walked
Sheza to the location of the barrel and continued to hold Sheza’s reins. Tr. Vol.
2 at 142-43. Burdick was located approximately forty feet away, when Chip
executed a right turn, and then abruptly stopped, causing Burdick to lose her
balance and fall off Chip. Id. at 143-45.
[9] Burdick was in the hospital almost one month to recover from her injuries,
which included a broken shoulder and a brain injury. Tr. Vol. 3 at 248; Tr. Vol.
4 at 24-26, 70-71. Once released from the hospital, Burdick went through
outpatient therapy for eight months. Tr. Vol. 3 at 248; Tr. Vol. 4 at 5.
Eventually, Burdick was awarded Social Security Disability due to her injuries
from the incident. Tr. Vol. 4 at 28.
[10] On February 24, 2014, Burdick filed an amended complaint, alleging that
Romano was negligent, grossly negligent, and reckless in her care and control
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of Sheza. Appellant’s App. Vol. II at 24-29.1 Romano filed two motions for
summary judgment, and the trial court denied both motions, finding in its
denial of Romano’s second motion for summary judgment that the “present
case alleges a personal injury arising out of a horse-related sports activity.”
Appellee’s Appendix Vol. 2 at 2 (emphasis added). Burdick later filed a motion in
limine to exclude testimony that Burdick and Romano were sports participants
engaged in a sporting event at the time of the incident or that Burdick had
incurred any risk of injury. Appellant’s App. Vol. II at 54-66. On October 18,
2019, the trial court denied Burdick’s motion in limine. Id. at 113.
[11] Meanwhile, on October 17, 2019, Burdick had tendered proposed final jury
instructions, which included instructions on premises liability, duty, negligence,
and reasonable care. Appellant’s App. Vol. II at 87-90. That same day, Burdick
tendered the following proposed final instruction:
Horses are domestic animals. The owner of a domestic animal is
not liable for injuries caused by the animal unless the animal had
dangerous propensities known, or which should have been
known, to the owner. A dangerous propensity is a propensity or
predictable tendency of an animal to do any act which might
endanger the safety of person or property in a given situation.
An owner must exercise reasonable care to guard against a
1
The amended complaint also named Joseph R. Verbeek (“Verbeek”) and Christy L. Marcotte (“Marcotte”)
as defendants. Appellant’s App. Vol. II at 24. The amended complaint alleged that Verbeek and Marcotte
operated Serenity Farms, a business that boarded, managed, and trained horses, and that Romano was an
employee of Serenity Farms. Id. at 24-25. On June 22, 2017, Verbeek and Marcotte were dismissed from the
case with prejudice. Id. at 7.
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known dangerous propensity or a known predictable tendency,
and to prevent injuries reasonably anticipated from them.
Id. at 91.
[12] On October 20, 2019, Romano tendered a proposed instruction that alleged
Burdick was required to prove that Romano was reckless. Appellant’s App. Vol.
II at 131-33. Romano also tendered other proposed final jury instructions,
which included a modification of the “sporting event injury” pattern
instruction, that also required Burdick to show that Romano was reckless. Id.
at 115, 117-18. On October 21, 2019, Burdick filed a proposed preliminary
instruction that the jury needed to find that Romano knew, or should have
known, that Romano’s own Sheza had known dangerous propensities, and a
known tendency to kick other horses, and that Romano had failed to use
reasonable care to protect Burdick from Sheza. Id. at 140-42.
[13] The case proceeded to jury trial on October 28, 2019. Id. at 18-23. The trial
court refused to read Burdick’s final instructions on premises liability,
negligence, duty, and reasonable care. Tr. Vol. 4 at 138-44, 200. The trial court
then read Romano’s proposed instructions on incurred risk, inherent risks of
equine activities, and sporting event injuries. Id. at 199-200. The jury returned
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a verdict in favor of Romano.2 Appellant’s App. Vol. II at 23. Final judgment
was entered on October 31, 2019. Id. at 21. Burdick now appeals.
Discussion and Decision
[14] Burdick argues that the trial court abused its discretion when it instructed the
jury. First, she argues the trial court should have read her proposed instructions
on negligence to the jury. Second, she contends the trial court should not have
read Romano’s instructions on the inherent risks of equine activities, sporting
event injuries, and incurred risk.
[15] The manner of instructing a jury is left to the trial court’s discretion. Kimbrough
v. Anderson, 55 N.E.3d 325, 339 (Ind. Ct. App. 2016), trans. denied. We consider
whether: (1) the instruction correctly states the law; (2) the record contains
evidence to support the instruction; and (3) the substance of the tendered
instruction is covered by the other instructions that are given. Id. An
instruction is properly rejected if it could mislead or confuse the jury. Miller v.
Ryan, 706 N.E.2d 244, 248 (Ind. Ct. App. 1999), trans. denied.
[16] To determine whether sufficient evidence exists to support an instruction given
by the trial court, we look only at the evidence most favorable to the appellee
and any reasonable inferences to be drawn therefrom. Foddrill v. Crane, 894
N.E.2d 1070, 1078 (Ind. Ct. App. 2008), trans. denied. When a jury is given an
2
The jury assigned fault for Burdick’s injuries as follows: Burdick, 65%, and Romano, 35%. Appellant’s App.
Vol. II at 23.
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incorrect instruction, we will not reverse the judgment unless the party seeking
a new trial shows a reasonable probability that its substantial rights were
adversely affected. Kimbrough, 55 N.E.3d at 339.
I. Negligence Instructions
[17] Burdick argues the trial court abused its discretion in refusing to read her
instructions on negligence, duty, and reasonable care because, she claims, this is
a simple negligence case. She likens her law suit to a “dog bite” case, where
“the owner of a dog, with known dangerous propensities, has a duty of
reasonable care to warn others, and to keep the dog on a leash and/or to tie the
dog up and/or to lock the dog up.” Appellants’ Amended Br. at 12. See, e.g., Ross
v. Lowe, 619 N.E.2d 911, 914 (Ind. 1993) (“[T]he owner of a dog is bound to
know the natural propensities of dogs, and if these propensities are the kind
which reasonably might be expected to cause injury, the owner must use
reasonable care to prevent such injuries from occurring.”). Because the
evidence shows that Romano knew that Sheza had exhibited dangerous
propensities, i.e., Sheza’s history of kicking other horses, and that Romano
failed to exercise reasonable care by failing to tie up Sheza once she dismounted
Sheza, Burdick claims the evidence supported instructing the jury on
negligence.
[18] Burdick draws our attention to two cases involving injuries caused by a horse,
Einhorn v. Johnson, 996 N.E.2d 823 (Ind. Ct. App. 2013), trans. denied, and Heald
v. Cox, 480 S.W.2d 107 (Mo. Ct. App. 1972), a Missouri case discussed by
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Einhorn. In Einhorn, a volunteer at the Marshall County 4-H Fairgrounds got
out of a vehicle to stop a runaway horse but was trampled by the horse.
Einhorn, 996 N.E.2d at 825-26. In Heald, a party guest sued the party host for
injuries the guest sustained when he was thrown from a horse the party host
had provided to the guest. Heald, 480 S.W.2d at 110. Both cases stand for the
proposition that a person who owns a horse that has known dangerous
propensities must exercise reasonable care to prevent injuries reasonably
anticipated from those dangerous propensities. Einhorn, 996 N.E.2d at 831;
Heald, 480 S.W.2d at 111. Because Einhorn and Heald addressed these horse-
caused injuries within the context of negligence, Burdick contends that her case
against Romano for injuries caused by Sheza is also a negligence case, so the
trial court abused its discretion by not instructed the jury accordingly.
[19] The trial court rejected this reasoning even before this case went to trial. Even
though the trial court denied Romano’s second motion for summary judgment,
it nonetheless ruled that Einhorn did not apply, stating, “The court declines to
find Einhorn . . . applicable here. While [Burdick] relies upon that case, it does
not involve a sports participant or spectator but, instead, a bystander attempting to
corral a loose horse.” Appellee’s App. Vol. 2 at 6 n.2 (emphasis added). At trial,
the trial court reaffirmed its conclusion that this was a sports-activity case. Tr.
Vol. 2 at 74; Tr. Vol. 4 at 141.
[20] A person need not participate in a competitive sport to be engaged in a sporting
activity. Gyuriak v. Millice, 775 N.E.2d 391, 395 (Ind. Ct. App. 2002),
disapproved on other grounds by Pfenning v. Lineman, 947 N.E.2d 392, 400-01 (Ind.
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2011), trans. denied. Thus, activities our courts have categorized as sporting
activities include non-competitive golf,3 a person riding a mountain bike while
alone on a bike trail,4 and practicing karate kicks during a karate class.5
[21] Burdick contends that she and Romano were not engaged in a sporting event.
Burdick raises this argument as a separate, stand-alone issue, claiming that the
trial court abused its instruction by reading the “sporting event pattern jury
instruction.” Appellants’ Amended Br. at 39-44. However, the crux of Burdick’s
argument about the sporting event instruction is that Burdick and Romano were
not engaged in a sporting event under the terms of the equine activity statutes,
see Indiana Code chapter 34-31-5, et. seq., and specifically under the statute that
defines “equine activity,” Indiana Code section 34-6-2-41. Therefore, we will
address Burdick’s argument within the context of those statutes.
[22] Indiana Code section 34-6-2-41 defines “equine activity” as follows:
(a) “Equine activity,” for purposes of IC 34-31-5, includes the
following:
(1) Equine shows, fairs, competitions, performances, or parades
that involve equines and any of the equine disciplines, including
dressage, hunter and jumper horse shows, grand prix jumping,
three (3) day events, combined training, rodeos, driving, pulling,
3
See Pfenning v. Lineman, 947 N.E.2d 392, 406 (Ind. 2011) and Gyruiak v. Millice, 775 N.E.2d 391, 395 (Ind.
Ct. App. 2002), disapproved on other grounds by Pfenning, 947 N.E.2d at 404), trans. denied.
4
See Hoosier Mountain Bike Ass’n, Inc. v. Kaler, 73 N.E.3d 712, 714-15 (Ind. Ct. App. 2017).
5
See Megenity v. Dunn, 68 N.E.3d 1080, 1082 (Ind. 2017).
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cutting, polo, steeplechasing, English and western performance
riding, endurance trail riding and western games, and hunting.
(2) Equine training or teaching activities.
(3) Boarding equines.
(4) Riding, driving, inspecting, or evaluating an equine, whether
or not monetary consideration or anything of value is exchanged.
(5) Rides, trips, hunts, or other equine activities of any type (even
if informal or impromptu) that are sponsored by an equine
activity sponsor.
(6) Placing or replacing horseshoes on an equine.
(b) The term does not include being a spectator at an equine
activity.
Id. (emphasis added). Burdick argues that because this statute does not use the
words “sports” or “sports participants,” Burdick and Romano could not have
been engaged in a sporting activity, so the trial court should have instructed the
jury on negligence. Appellants’ Amended Br. at 43.
[23] We agree with Romano that the statutory definition of equine activity does not
preclude sporting activities. The activities listed by the statute as equine
activities is not exhaustive, evinced by the words, “‘Equine activity,’ for
purposes of IC 34-31-5, includes the following.” Ind. Code § 34-6-2-41
(emphasis added). See Med. & Prof'l Collection Servs., Inc. v. Bush, 734 N.E.2d
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626, 629 n.4 (Ind. Ct. App. 2000) (“We note that ‘includes,’ rather than being a
limiting term, implies a non-exhaustive list[.]”). Moreover, the illustrative list
in the statute identifies several sports, including grand prix jumping, polo,
western performance riding, and steeplechasing as constituting equine activities.
Ind. Code § 34-6-2-41(a)(1).
[24] Therefore, the trial court did not abuse its discretion in finding that Burdick and
Romano were engaged in a sporting activity. Burdick and Romano were not
riding their horses in a pasture or other country terrain but within an arena
specifically and exclusively designed for horse training. Tr. Vol. 4 at 66. Both
Burdick and Romano described their activities in the arena as tricks and
training related to the sport of horse-back riding, where, for instance, Burdick
testified that she was going through her training routine in the arena. Id. at 61.
As part of the routine, Burdick was “loping” Chip as part of a cool-down after
she completed her training routine with Chip. Id. When Burdick completed
her training routine, she accepted Romano’s invitation to join her and Sheza to
ride in a zig zag pattern through the poles erected in the arena. Id. at 61-62.
Burdick and Romano also engaged in other behavior to demonstrate tricks and
training techniques associated with the sport. Id. at 56-57, 61-63. For instance,
Burdick characterized putting her hoodie over Chip’s eyes as a trick that was a
training technique. Id. at 56. She also testified that without proper training, a
horse would “spook” if its head was covered by an object. Id. Burdick stated
that demonstrating to another person how the horse would respond to training
is part of the sport. Id. at 57. Burdick also acknowledged that when Romano
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was going to demonstrate that Sheza could push a barrel with her nose, it was
to show a technique that Romano had used to train Sheza. Id. Also, in
explaining the “ground tie” that Romano used after she dismounted Sheza (in
Burdick’s version of the events), Burdick and Romano testified that a ground tie
is a trick or training technique where the rider dismounts the horse, drops the
reins to the ground, and the horse stands as if the horse was tied to the ground.
Tr. Vol. 2 at 163; Tr. Vol. 3 at 244; Tr. Vol. 4 at 58. Training a horse to stand still
during a ground tie is important because if an emergency arises, it may be
important for a horse to stay put. Tr. Vol. 2 at 163. Romano testified that
ground training is “definitely part of the equine world.” Id. at 164. Finally,
both Burdick and Romano agreed that Romano was in the process of retrieving
a barrel to demonstrate a trick and training technique associated with the sport.
Id. at 142-43, Tr. Vol. 3 at 244-45; Tr. Vol. 4 at 58. Thus, contrary to Burdick’s
argument, this is not a simple “dog bite” case but instead is a sporting activity
case. See Appellants’ Amended Br. at 12. Our courts have ruled that non-
competitive golf, practicing karate kicks, and riding a mountain bike on a trial
are sporting activities. Accordingly, we cannot state that the trial court abused
its discretion in determining that Burdick’s injuries occurred during a sporting
event. See Megenity v. Dunn, 68 N.E.3d 1080, 1082 (Ind. 2017); Pfenning, 947
N.E.2d at 406; Hoosier Mountain Bike Ass’n, Inc. v. Kaler, 73 N.E.3d 712, 714-15
(Ind. Ct. App. 2017); and Gyruiak, 775 N.E.2d at 395.
[25] Because Burdick and Romano were engaged in a sporting activity, Burdick was
required to show that Romano was reckless, not merely negligent. Megenity, 68
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N.E.3d at 1084-85; Pfenning, 947 N.E.2d at 404. Stated differently, a
participant’s conduct in a sporting activity is unreasonable only if the injured
party shows that the co-participant engaged in reckless conduct. Megenity, 68
N.E.3d at 1084-85; Pfenning, 947 N.E.2d at 404. This burden of proof is
supported by public policy.
[S]trong public policy considerations favor the encouragement of
participation in athletic activities and the discouragement of
excessive litigation of claims by persons who suffer injuries from
participants’ conduct. Sound policy reasons support affording
enhanced protection against liability to co-participants in sports
events. Athletic activity by its nature involves strenuous and
often inexact and imprecise physical activity that may somewhat
increase the normal risks attendant to the activities of ordinary
life outside the sports arena, but this does not render
unreasonable the ordinary conduct involved in such sporting
activities.
Id. at 403.
[26] Because the undisputed evidence shows that Burdick and Romano were
engaged in a sporting activity, the trial court did not abuse its discretion in
refusing to instruct the jury on negligence for two reasons: First, the evidence
did not support an instruction for negligence. See Kimbrough, 55 N.E.3d at 339.
Second, an instruction on negligence could have confused and misled the jury
about Burdick’s burden of proof. See Miller, 706 N.E.2d at 248. Acordingly, we
affirm the trial court’s decision to refuse Burdick’s tendered instructions on
negligence.
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II. Instruction on Inherent Risk of Equine Activities
[27] Burdick also argues that the trial court abused its discretion by instructing the
jury on the inherent risks of equine activity. The instruction stated:
Inherent risks of equine activities include the following: the
propensity of an equine to behave in ways that may result in
injury, harm or death to persons on or around the equine. The
unpredictability of an equine’s reaction to such things as sound,
sudden movement, unfamiliar objects, people or other animals.
The potential of a participant to act in a way that may contribute
to injury to the participant or others, such as failing to maintain
control over the animal or not acting within the participant’s
ability.
Tr. Vol. 4 at 200.
[28] In contending that reading this instruction was an abuse of discretion, Burdick
advances the arguments that we addressed in the previous section of this
decision about Burdick’s claim that the trial court abused its discretion in
refusing to instruct the jury on negligence. Accordingly, she has waived this
claim for failure to make a cogent argument. Maggert v. Call, 817 N.E.2d 649,
651 (Ind. Ct. App. 2004).
[29] Waiver aside, the instruction is an accurate statement of the law as it comes
from the statute that defines inherent risks from equine activities. See Indiana
Code section 34-6-2-69. Although the instruction omitted language from the
statue about inherent risks arising from hazards such as surface and subsurface
conditions and collisions with other equines or objects, it is otherwise identical
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to the language in the statute. This omission was appropriate to make the
instruction conform to the facts of the case.
[30] The instruction also omitted the word “negligent” from the statute. This
omission was also appropriate because leaving the word “negligent” in the
instruction would have confused the jury about Burdick’s burden of proof, that
is, to show that Romano acted reckless. See Miller, 706 N.E.2d at 248 (an
instruction or language in an instruction should be rejected if it will mislead or
confuse the jury).
[31] Finally, the evidence supported giving the instruction. Burdick testified that, as
an expert, she knew the risks associated with horse training and tricks before
she walked into the arena. Tr. Vol. 4 at 61. She admitted that being kicked by a
horse was a risk of the sport and testified that a horse getting “spooked” was a
risk of the equine activities. Id. at 59. She also admitted that horseback riding
was dangerous. Id. at 99. The evidence supported the instruction on the
inherent risks of equine activity, and the trial court did not abuse its discretion
in reading the instruction to the jury.
III. Instruction on Incurred Risk
[32] Burdick also contends the trial court abused its discretion in instructing the jury
on incurred risk because the evidence did not support the instruction. The
instruction stated:
[Romano] claims [Burdick] knew of a specific danger,
understood the risk she faced, and voluntarily exposed herself to
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the danger. In other words, [Romano] claims [Burdick]
voluntarily incurred the risk. To prove [Burdick] incurred the
risk, [Romano] must prove by the greater weight of the evidence
that [Burdick] knew and appreciated the specific risk, and
[Burdick] voluntarily accepted the risk. If you decide that
[Burdick] incurred the risk, then that conduct is fault that you
should assess against [Burdick].
Tr. Vol. 4 at 200.
[33] Burdick claims the evidence did not support this instruction because there was
no evidence that she was aware that Romano might stop Sheza, dismount her,
leave her unattended, and walk away to retrieve a barrel to demonstrate a trick.
In support, Burdick cites Colaw v. Nicholson for the proposition that “[i]ncurred
risk contemplates acceptance of a specific risk of which the plaintiff has actual
knowledge.” 450 N.E.2d 1023, 1029 (Ind. Ct. App. 1983). She also points us
to Forrest v. Gilley and Hardin v. Christy for the same principle. Forrest, 570
N.E.2d 934, 935 (Ind. Ct. App. 1991) (person injured after falling off horse),
trans. denied; Hardin, 462 N.E.2d 256, 263 (Ind. Ct. App. 1984) (person injured
by horse when exercising the horse).
[34] Contrary to Burdick’s claim, the evidence supported the incurred risk
instruction. Burdick is mistaken that the incurred risk at issue was Romano’s
decision to dismount Sheza and leave Sheza untied and unattended. Instead,
the risk at issue was Sheza’s tendency to kick other horses. Sometime before
the incident, Burdick had asked Romano several times to show Burdick the
trick where Sheza would push the barrel with her nose. Tr. Vol. 2 at 140-41.
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Burdick was aware of Sheza’s history of kicking other horses because Romano
told Burdick several times that Sheza was a kicker. Tr. Vol. 3 at 239; Tr. Vol. 4
at 61. Burdick also testified that before the incident she had observed Sheza act
aggressively toward other horses and attempt to kick other horses. Tr. Vol. 3 at
239. She also admitted that being kicked by a horse was a risk of the sport and
conceded that as a horse expert she knew all the risks associated with horse-
related sporting activities. Tr. Vol. 4 at 59, 61. Therefore, because the evidence
supported the incurred risk instruction, the trial court did not abuse its
discretion by reading the instruction to the jury.6
[35] Affirmed.
Bailey, J., and Mathias, J., concur.
6
Additionally, in muddled arguments related to the burden of proof, Burdick first appears to contend that
when the trial court instructed the jury about Romano’s claim that Burdick was partly at fault for her injuries,
the trial court misstated Romano’s burden of proof. This argument is unclear, unsupported by citation to
authority, and Burdick does not develop the argument. Therefore, she has waived the issue for failure to
make cogent argument. See Maggert v. Call, 817 N.E.2d 649, 651 (Ind. Ct. App. 2004). Second, Burdick
complains that “the clear and convincing evidence burden of proof standard applicable to recklessness was
never read to the jury – only the preponderance of evidence burden of proof standard applicable to negligence
[] was read to the jury.” Appellants’ Amended Br. at 40-41. This argument is equally confusing, so it too is
waived for lack of cogent argument. See Maggert, 817 N.E.2d at 651. Burdick also does not demonstrate
how she was prejudiced by an instruction that advised the jury that Burdick was only required to prove her
case by a preponderance of evidence instead of clear and convincing evidence.
Court of Appeals of Indiana | Opinion 19A-CT-2739 | May 5, 2020 Page 18 of 18