Bernard, Linda v. Woodside Ranch, LLC et al

Filing 40

ORDER granting in part and denying in part 20 Motion for Summary Judgment by Defendants Philadelphia Indemnity Ins. Co. and Woodside Ranch, LLC. Signed by Magistrate Judge Stephen L. Crocker on 8/15/2017. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

LINDA BERNARD,
Plaintiff,
and

OPINION AND ORDER

BLUE CROSS BLUE SHIELD OF MICHIGAN,

16-cv-461-slc

Involuntary Plaintiff,
v.
WOODSIDE RANCH, LLC and
PHILADELPHIA INDEMNITY INSURANCE COMPANY,
Defendants.
________________________________________________________________________________________
Plaintiff Linda Bernard was injured when she fell trying to get on a horse provided by
defendant W oodside Ranch, LLC, which is insured by defendant Philadelphia Indemnity
Insurance Company. Bernard has brought claims under W isconsin negligence law and the state
safe place statute, W is. Stat. § 101.11, alleging that W oodside employees provided her with a
faulty saddle that slipped and caused her to fall and injure herself.
Defendants have moved for summary judgment. See dkt. 20. They argue that W oodside
cannot be held liable under W isconsin’s equine immunity statute, W is. Stat. § 895.481, and that
the safe place statute does not apply in this case. In response, Bernard has withdrawn her claims
under the safe place statute, see dkt. 29 at 12, but she argues that two different exceptions in the
equine immunity statute apply to defendants’ conduct in this case: (1) knowingly providing
faulty equipment that caused her injury; and (2) acting with a willful or wanton disregard for her
safety.
For the reasons explained below, I conclude that there is a genuine issue of material fact
with respect to whether defendants’ conduct falls within the two exceptions to the immunity

statute and am denying defendants’ motion for summary judgment with respect to those issues.
I am granting defendants’ motion for summary judgment with respect to (1) whether W oodside
qualifies as an equine activity sponsor that may fall within the scope of the immunity statute;
and (2) Bernard’s safe place statutory claims, which will be dismissed.
The following facts are undisputed except where noted:

UNDISPUTED FACTS
Plaintiff Linda Bernard is a resident of Michigan, and involuntary plaintiff Blue Cross
Blue Shield of Michigan, is a Michigan corporation. Defendant W oodside Ranch, LLC has a
principal office in Northridge, California. W oodside Ranch provides facilities and horses for trail
rides, horse-drawn wagon rides, and riding lessons, and equips the horses for riding. W oodside
Ranch employs wranglers, who perform the equine aspects of the ranch’s business. Defendant
Philadelphia Indemnity Insurance Company is a Pennsylvania Corporation that provided liability
insurance coverage to W oodside Ranch and its agents and employees.
On June 10, 2013, Bernard was a guest at the W oodside Ranch in Mauston, W isconsin
as part of an event for her professional association. Bernard’s group had scheduled a horseback
breakfast ride for that morning. It was the practice of the W oodside Ranch wranglers to talk
with riders at the start of a ride to determine their knowledge, experience, and comfort level with
horses. Prior to the ride, Brian Sletten, W oodside Ranch’s wrangler manager, asked Bernard
about her riding experience and she told him that she had ridden before. Bernard ended up
riding Okie, a horse appropriate for any type of rider. One of W oodside Ranch’s wranglers
cinched Okie’s saddle in preparation for Bernard to ride.

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Bernard avers that Okie’s saddle looked old and in disrepair, with worn down leather in
the area of the saddle horn. W hen she mounted the horse for the first time, Bernard noticed
that the saddle did not feel right and informed a young female W oodside Ranch wrangler of the
potential problem. The wrangler attempted to inspect or adjust the saddle. [Bernard avers that
this wrangler seemed inexperienced and unsure, while defendants aver that W oodside Ranch
selects as its wranglers people with a background in equine activity who grew up with horses.]
As Bernard rode at the back of her group to the breakfast site, she told the same wrangler that
something still was wrong with Okie’s saddle and that it did not feel stable. The wrangler
responded that the saddle was fine. W hen Bernard persisted in complaining that something was
wrong with the saddle, the wrangler again responded “it is fine.”
Bernard reached the clearing for breakfast and dismounted from Okie. She again told the
wrangler that something was wrong with the saddle, that it might be broken and asked her to
check it again. After breakfast, Bernard asked the wrangler if she had fixed the saddle, to which
the wrangler responded that it was “fine.” To remount, Bernard stood on a wooden step called
a mounting block on Okie’s left side. W hile trying to remount Okie, Bernard the horse’s saddle
came off and Bernard fell to the ground, injuring her leg. [The parties seem to dispute whether
Bernard pulled the saddle to the left in her attempt to mount the horse.] W hile lying on the
ground after she fell, Bernard saw the cinch used to tighten Okie’s saddle, and she believed that
it looked worn or threadbare.
Sletten has been a wrangler at W oodside Ranch for 27 years, 15 of those years as the
wrangler manager. According to Sletten, W oodside Ranch had never used broken tack on a
horse. The more experienced wranglers are the ones who secure the saddles to the horses.

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W ranglers inspect saddles and the parts that secure them to the horse for defects that might
make them unsafe for use. If someone finds a problem, then Sletten would remove that saddle
from use and replace any defective or broken parts. According to Sletten, a saddle capable of
being pulled to the left has something wrong with it.
A saddle is secured to a horse by running a nylon cinch under the horse and attaching it
to the saddle’s latigo and off billet.1 If either the latigo or the off billet on a saddle were to have
a defect or were to break, then the saddle could become loose. Saddle parts, particularly those
made from leather (like latigos and off billets) can break down or become cut or damaged
through use.
W oodside Ranch does not have any documents regarding whether any parts of Oakie’s
saddle were changed or altered in any way since the June 10, 2013 incident.

ANALYSIS
A district court must grant summary judgment when no genuine issue of a material fact
exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The court must view the evidence in the
light most favorable to the nonmoving party, but “the nonmoving party must come forward with
specific facts showing that there is a genuine issue for trial.” Armato v. Grounds, 766 F.3d 713,
719 (7th Cir. 2014) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986)).

1

A latigo and an off billet are the same type of strap but the latigo is on the left side (near side) of the
saddle, while the off billet is on the right side (off side) of the saddle.

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Defendants contend that W isconsin’s equine immunity statute, W is. Stat. § 895.481,
shields W oodside Ranch and its employees for their acts and omissions related to equine
activities. The statute extends broad immunity to those who sponsor or provide horse-back
riding and other equine activities:
Except as provided in subs. (3) and (6), a person, including an
equine activity sponsor or an equine professional, is immune from
civil liability for acts or omissions related to his or her participation
in equine activities if a person participating in the equine activity
is injured or killed as the result of an inherent risk of equine
activities.
W is. Stat. § 895.481(2).
Defendants have the burden of proving that immunity attaches and must present evidence that
would sustain their burden at trial, Rintelman v. Boys & Girls Clubs of Greater Milwaukee, Inc., 2005
W I App 246, ¶¶ 17, 18, 288 W is. 2d 394, 707 N.W .2d 897.
Subsections (3) and (6) provide a number of exceptions to the general rule of immunity
under the statute. Bernard has the burden of proving that her claims fall within one of the
exceptions to the statute. Acuity Mutual Insurance Co. v. Olivas, 2007 W I 12, ¶ 44, 298 W is. 2d
640, 726 N.W .2d 258. In addition, Bernard’s claims against Philadelphia Indemnity exist only
to the extent that they exist against W oodside Ranch. Parsons ex rel. Cabaniss v. American Family
Insurance Co., 2007 W I App 211, ¶11, 305 W is. 2d 630, 740 N.W .2d 399 (citation omitted)
(explaining that “the right of action against the insurer exists only to the extent it exists against
the insured”).
Bernard does not dispute defendants’ contention that W oodside Ranch falls within the
general scope of the equine activity immunity statute, nor does she dispute these supporting
contentions: (1) W oodside Ranch is an “equine activity sponsor;” (2) Bernard and W oodside

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Ranch were participating in “equine activities;” (3) defendants’ alleged acts and omissions
“related to” their participation in “equine activities;” and (3) Bernard was injured as a result of
the “inherent risk of equine activities.” See §§ 895.481(1)(b), (c), and (e) (defining statutory
terms). Because Bernard had the opportunity to respond to these arguments but chose not to,
defendants are correct that she has forfeited these issues and waived the right to raise them in
the future. United States v. Jacques, 345 F.3d 960, 962 (7 th Cir. 2003) (forfeiture is failure to
make timely assertion of right); Nichols v. National Union Fire Insurance Co. of Pittsburgh, PA, 509
F. Supp. 2d 752, 760 (W .D. W is. 2007) (plaintiffs forfeited arguments by failing to respond in
meaningful way).
Bernard limits her opposition to summary judgment on her contention that these two
exceptions to the immunity statute apply in this case:
The immunity under sub. (2) does not apply if the person seeking immunity does
any of the following:
(a) Provides 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.
*

*

*

(d) Acts in a willful or wanton disregard for the safety of the
person.
§§ 895.481(3)(a) and (d).
Defendants also argue that none of the other exceptions in §§ 895.481(3) or (6) apply
here; Bernard did not respond to those arguments, so she also has forfeited her right to raise
these exceptions in the future. True, Bernard states in a footnote that “[b]ased on the facts
presented,

a

jury

could

also

reasonably

conclude

the

W oodside

employee

acted

intentionally–thus applying exception (e)–if she knew the saddle was faulty and chose to take

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no further action.” Dkt. 29 at 11 n. 2. However, a single conclusory statement noting the
possible applicability of another statutory exception is not enough to keep this exception in play
in the face of defendants’ summary judgment motion on this issue. Parker v. Franklin Cty. Cmty.
Sch. Corp., 667 F.3d 910, 924 (7th Cir. 2012) (undeveloped argument raised in footnote was
waived).
I will address the exceptions related to faulty equipment and willful or wanton disregard
separately:

I. Faulty Equipment Exception
The parties agree that to prove this exception applies, Bernard must show that the saddle
was in fact faulty, that W oodside Ranch employees knew or should have known about the faulty
condition of the equipment, and that the faulty equipment caused her injury. Bernard testified
that she repeatedly reported a problem with her saddle to a female wrangler, the wrangler kept
telling Bernard that the saddle was fine, the saddle moved when Bernard attempted to remount
Okie after breakfast, Bernard fell to the ground and suffered injury because the saddle moved;
and while on the ground, she saw that the cinch looked worn or threadbare.

Also Sletten

admitted that something is wrong with a saddle that can be moved to the left, and that saddle
parts can become worn or break and permit the saddle to become loose.
In support of its motion for summary judgment with respect to this exception, defendants
assert that guest safety was the utmost concern of W oodside Ranch, that its wranglers regularly
inspected and cared for the riding equipment, and that its wranglers would not allow a guest to
use equipment that required repair or replacement. W oodside Ranch has its more experienced

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wranglers secure the saddles to the horses. But at the summary judgment stage, none of these
assertions, singly or together establishes as a matter of law that Bernard’s version of events did
not take place or could not have taken place. Apart from Sletten’s statements about precautions
generally used at the ranch, defendants have not adduced any evidence from the wrangler who
worked with Bernard or from any witnesses to Bernard’s accident. Even if other witnesses were
to have provided different accounts of what they saw and heard that morning, this only would
have teed up a dispute of material facts. At the summary judgment stage, this court is required
to construe all facts and draw all reasonable inferences in favor of the non-moving party–here,
Bernard. Haley v. Kolbe & Kolbe M illwork Co., ___ F.3d ___, 2017 W L 3392381 at *2 (7 th Cir.
Aug. 8, 2017).
So, it doesn’t advance the Rule 56 analysis for defendants to dispute or discount
Bernard’s proposed findings by noting that her account is “not supported by any other evidence
in the record.” See, e.g., dkt. 36 at 3-4. Even if this court were to consider only the undisputed
facts, a reasonable jury could find that tack on Okie’s saddle was faulty, that a W oodside Ranch
wrangler knew–or should have known from Bernard’s complaints–that something was wrong with
the saddle before Bernard’s accident, and that these problems with the saddle caused it to loosen,
which in turn caused Bernard to fall and injure her leg. It will be up to the jury to decide at trial
whether Bernard’s testimony is credible and to weigh it against Sletten’s testimony concerning
the ranch’s usual practices with respect to equipment care and maintenance.

Accordingly,

defendants’ motion for summary judgment will be denied with respect to whether the faulty
equipment exception applies in this case.

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II. W anton or W illful Disregard Exception
W isconsin courts have not yet determined what constitutes “wanton or willful disregard”
for safety within the context of equine activity, but as both parties point out, many states have
equine activity immunity statutes with a similar, if not identical, exception. See e.g., Teles v. Big
Rock Stables, L.P., 419 F. Supp. 2d 1003, 1007 (E.D. Tenn. 2006); Holcomb v. Long, 765 S.E.2d
687, 692 (Ga. Ct. App. 2014); Lessman v. Rhodes, 721 N.E.2d 178, 180 (Ill. App. 3d. 1999);
Gautreau v. W ashington, 672 So. 2d 262,266 (La. App. 1 Cir. 1996). Defendants advocate for
the more restrictive definition adopted by a Georgia state court of appeals:
W ilful [misconduct] is based on an actual intention to do harm or
inflict injury; wanton conduct is that which is so reckless or so
charged with indifference to the consequences as to be the
equivalent in spirit to actual intent. W ilful misconduct, or wilful
failure or refusal to perform a duty required by statute, is more
than negligence or even gross negligence; it involves conduct of a
criminal or quasi-criminal nature, the intentional doing of
something, either with the knowledge that it is likely to result in
serious injury, or with the wanton and reckless disregard of its
probable consequences.
Holcomb, 765 S.E.2d at 692 (citation omitted). However, as Bernard argues, W isconsin provides
a separate exception for “intentionally caus[ing] the injury or death,” W is. Stat. § 895.481(3)(e).
This shows that W isconsin lawmakers intended that “wanton or willful” conduct be something
other than intentional conduct. See Martine v. W illiams, 2011 W I App 68 ¶¶ 19-20, 333 W is.2d
203,212, 799 W is.2d 449, 453-54 (A court should “construe statutory language in the context
within which it is used, not in isolation but as part of a whole.”). See also Cook v. Indust. Comm.,
31 W is. 2d 232, 240, 142 W is.2d 827, 831 (1966) (“[S]tatutes should be so construed that no
word or clause shall be rendered surplusage.”).

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For her part, Bernard cites a definition of willful or wanton applied by Illinois and
Tennessee courts that is more akin to recklessness. Lessman, 721 N.E.2d at 180 (“behavior
which, if not intentional, shows an utter indifference to or conscious disregard for the safety of
others” and a “hybrid between acts considered negligent and behavior found to be intentionally
tortious”); Teles, 419 F. Supp. 2d at 1009 (equating “wanton and willful” with gross negligence,
which is “a negligent act done with utter unconcern for the safety of others, or one done with
such a reckless disregard for the rights of others that a conscious indifference to consequences
is implied in law”). The Louisiana court of appeals reached a similar conclusion about the
meaning of “wanton,” finding that “[t]he usual meaning . . . is that the actor has intentionally
done an act of unreasonable character in reckless disregard of the risk known to him, or so
obvious that he must be taken to have been aware of it, and so great as to make it highly
probable that harm would follow.” Gautreau, 672 So. 2d at 266 (quoting Landry v. Uniroyal
Chem. Co., 653 So. 2d 1199, 1205 (La. App. 1 Cir. 1995)).
Given that the W isconsin statute distinguishes between intentional and wanton or willful
conduct, I conclude that its use of “wanton or willful disregard” is consistent with a conscious
disregard or indifference. The W isconsin Supreme Court has made a similar distinction between
“malicious” and “willful” in the context of a recreational use statute, W is. Stat. § 895.52, finding
that “malicious conduct is conduct which goes beyond willful conduct or reckless disregard for
the youths’ safety.” Ervin v. City of Kenosha, 159 W is. 2d 464, 484, 464 N.W .2d 654, 663
(1991). Although more information may be required from the parties at the jury instruction
phase of this lawsuit concerning the precise definition of the term “wonton or willful,” I find that
a reasonable jury could conclude from the undisputed facts that the wrangler’s inaction in the

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face of Bernard’s repeated reports of a problem with her saddle exceeds the “inherent risk” of
horse riding that is anticipated by the immunity statute and rises to the level of “wanton or
willful disregard” for Bernard’s safety. See Teles, 419 F. Supp. 2d at 1007 (defendant choosing
to provide a saddle with stirrups it knew were too short, making it difficult for the rider to
balance, could constitute conduct meeting the “willful or wanton” exception).
As a final matter, I note that defendants proposed supplemental findings of fact in
conjunction with their reply brief in an attempt to show that Bernard admitted that the female
wrangler took steps to adjust Okie’s saddle in response to her complaints. I have not considered
these additional facts or defendants’ arguments related to them because defendants raised this
issue for the first time in their reply brief, depriving Bernard of the opportunity to respond.
United States v. King-Vassel, 728 F.3d 707, 716 (7 th Cir. 2013) (“As a general matter, if the
moving party does not raise an issue in support of its motion for summary judgment, the
nonmoving party is not required to present evidence on that point, and the district court should
not rely on that ground in its decision.”). In any event, whether any actions that the wrangler
might have taken to address Bernard’s concerns prove that the ranch had an appropriate regard
for Bernard’s safety also will be a question for the jury. Accordingly, defendants’ motion for
summary judgment will be denied with respect to the application of the exception for wanton
or willful conduct.

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ORDER
IT IS ORDERED that the motion for summary judgment filed by defendants W oodside
Ranch, LLC and Philadelphia Indemnity Insurance Company is GRANTED in part and
DENIED in part:
1.

Defendants’ motion is GRANTED with respect to plaintiff Linda Bernard’s
claim that defendants violated W isconsin’s safe place statute, W is. Stat. §
101.11, and those claims will be DISMISSED.

2.

Defendants’ motion is DENIED with respect to plaintiff’s claims that
the following two exceptions to the equine immunity statute apply to
defendants’ conduct in this case: (a) knowingly providing faulty
equipment that caused plaintiff’s injuries; and (b) acting with a willful
or wanton disregard for plaintiff’s safety.

Entered this 15 th day of August, 2017.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

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