please the court good morning the district court committed several different errors that i'd like to address this morning the first one being whether section three b of the statute applied to create an exception to the immunity provided by section two and section b provides that a person no longer has immunity if  provides an echoing to a person and fails to make a reasonable effort to determine the ability of the person to engage safely in an echoing activity or to safely manage the particular airplane provided based more critically during the course of this twenty year old ride the plane of complained that she could not reach the world i can't reach the rope and nicole friend's writer who was too frail right leader said don't worry about that the horse knows where he's going so at that point what i'm suggesting is that the evidence in this is on summary judgment but the that evidence meets the exceptions set forth in three b and also three d for willful and wanton which i'll get to in just a second nobody in this case has questioned an employment or agency relationship between and the defendant's agent says don't worry about it at that point any previous assessment of the plaintiff's ability is no longer reasonable were jury could so find because the plaintiff is saying i'm not me and injuring the horse i can't reach the rents well that suggests that the statute should be interpreted or that this exception should be interpreted to cover and i and i agree that there are two different directions what i would suggest your honor is that in the met where case the court said that the immunity trims on whether the defendant managed the horse on the day of the accident in light of the experience now that's hard to square with the court's later opinion and helen right which they didn't they they cited miller but didn't try to distinguish it and here's yours what i'm saying that it's not a question of factually distinguishing it it's an interpretive question sure and they did they didn't say mettler is wrong they just they cited it up with approval on the summary judgment park right so we have two different court of appeals decision is one interpreting the statute one way and your way and one interpreting the statute a different way the defendant's way and we have to predict how the wisconsin supreme court would break that dispute or result that dispute break the tie to in section three section two granting immunity and section three being the exceptions both of those are broadly and helen and miller both view those probably in helen the court said look putting a blanket on the horse is part of the echoing activity and it viewed that extremely broadly so and i'm going to get specific now i don't think it matters in the deal with chase in the reason it doesn't matter is because when she says i'm not managing the horse i can reach the world then what i say is the defendant under the statute has to do a reassessment so why look at what part of this that was you requires that the language that says reasonable effort because has to engage in in order to claim to be immunity later i would respectfully disagree that the stance shoot only applies prior to beginning the ride because that would i think defeat the purpose of the immunity because if if the trail ride leader finds out after the ride starts that this is totally mismatch the plaintiff shouldn't be on a horse at all and then continues to allow it then any assessment that the equity provided was reasonably matched no longer is reasonable and the statute requires it to be reasonable now the other part though that same evidence fits so paragraph d which is not limited intentional but the district court in the sure case says no intentional misconduct is not required under wolf walking in wisconsin but it's also supported by an examination of the statutory and when julie says to cry krenz writer i can't reach the rope and she says don't worry about it the horse knows where he's going that's conscious just regard him a known danger in the record supports either way you read the statute there's nothing in it that says they can ignore later acquired knowledge the static could have been drafted to include that but the use of the term reasonable suggests that it must be evaluated in the context of the entire knowledge that the defendant has and that they are permitting the defendant to simply ignore after it does not match it does appear that it was some five minutes to ten minutes and i'm just kind of inferring that from a couple of things the lead trail rider thought that the ride was about thirty minutes the plaintiff thought it was about fifteen and the exchange occurs at least long enough for the trail ride leader to respond to we know that much  the plaintiff was not asked in her deposition how much later was it well i'm just trying to german was this the risk existed at the moment of getting on the horse she said that she had trouble off and on that this was something that were paid that she had gotten the reins or if what she called the rope couldn't hold onto them got them again couldn't hold on to one each time she did that she started to slide off and he had to the trail and it's enters told to not worry about it strip's seems to me that if you can overcome the various community defenses and other issues with respect to your claim against mr cryer stables there remains a very significant issue concerning your attempt to  agency here absolutely night appreciate the opportunity to address that in this case the plaintiff argued that the defendant held out to the general public and was carrying on that holiday acres provided flyers advertising and a website in which the trail rides were advertised in more nap clearly delineated as a separate business and in the thirty six representatives deposition from holiday eight years and this is document fifty eight three and i'm looking at pages seventeen to fifteen he talks about an ad for the a yes but it was at breakfast plate if was heard on the breakfast room and she would i thought that was my understanding is that that was going to be the only conclusion your understanding who says your kids can you help me in the sounds what's in my nose is and here's what i'm looking at for what she were light on before you filled if you have any personal knowledge whatsoever that holidaymakers had anything to do with the statements in her answer is because i saw photos of steve crier as cowboy streep dressed up serving p and kate's at the resort for the thursday morning ride they also advertised wagon rides and because of that she believed that they were tied together that they w use the phrase comparative agency i will say that we did argue that the defendant held out holiday trails and that they were holding out to the general public and cheering on his little one business and we argued the same facts the advertisements showing that they had both the holiday  in finding that the argument was waivers well julie extent that the district court thought that it was waive the district court went ahead and analyzed it and didn't rely on any waiver went ahead and said look we don't i don't think this evidence is sufficient so i would suggest that if there was some technical waiver it certainly was harmless and that the just refuse judge had more than enough to make a decision he just didn't chicken to consider instantly evidence that we produced and the defendant concedes that it in their briefs page thirty t other they can see that they said that that was the wa business were the same entity that's the heading and then they go ahead and explain why that impression could result correct i'm saying that i think that was that there was not a waiver because the district judge had enough information to make a decision on the merits which is what he did he just got there were wrong and so there's there's no actual waiver when he has the information we put the factual predicate into the record and he made a ruling on the m if you want to save some time from models i would your honor thank you very much morning they please the court my name is daniel baldwin and i represent the appellee properties first to the question that was just posed regarding the waiver issue i'd just like to direct the court's attention a few pages prior to that and also to dock at one o three a page twelve where the district court did express leopold's that the plaintiffs had in fact we their argument regarding apparent authority explicitly the court states as your honor had pointed out that duly cited no legal  authority she did not explain how these facts which counsel had cited how these facts show that the two entities are actually wants or even that they should be treated as one and the court then expressively states because her argument is so undeveloped it is w the back of the way that the court then went on to address the argument as to then show even if it wasn't waived why you couldn't hold any water is irrelevant to the fact that the issue was itself waived and importantly for purposes of this appeal has not addressed how the district court's waiver was improper now with regard to the a pallies argument regarding a parent agency we first maintain that the argument is waivers we maintain then that the  failed to address why the waiver was proper but then considering that the appellant's entire argument or the bulk of the argument against my client was based on a parent agency we decided to go ahead and address for the court's consideration if the court were to address the waiver issue first but i believe because the appellant has not necessarily established that the waiver by the district court was improper there's no need for this court to consider the merits of the parent agency argument what the appellant also doesn't point to is the fact that although to be a kelly did concede that there could possibly be some representations they could hold some weight for a parent authority or exceeding the parent agency the remainder of the argument they can't meet the remaining elements which is reliance and then a statute barred plaintiff's claims and i think one thing that hasn't been brought up yet is the broad scale and it's after it's a pic ability to the appellee in this case before you begin to have the statutory text could you address factual questions in mind how far into the ride do this happen and was this a breakfast ride i don't recall whether or not there's any evidence that it was a practice ride and i do recall that it was shortly into the ride i don't have that records right in front of me but i would be happy to provide that after the argument you one of the arguments that was advanced but not necessarily address on the oral argument is whether or not the statute immunizes the defendant's negligence and that's kind of one of the underlying premises that the district court noted was a misunderstanding of the wisconsin law and as the bench as already pointed out there are some established wisconsin cases on the topic to which the bench can look to for guidance in deciding this case can i go back just to the way we're question for a moment absolutely  if we thought the waiver was a decision by the district judge was inappropriate i want to ask you about the position of the point where she said she ordered her testimony that she saw the holiday stables on the holiday acres website and that was her understanding that the resort of the stables were quote tied together  advertise a variety of different activities that were available one such link brought the user to a sub page which showed that trail rights were available to you if waiver were not of issue specifically one being the reliability is a big issue the plaintiff that it's undisputed that she had called the holiday stables to make the reservation she didn't go through the resort she spoke with steve prior who identified himself as the proprietor and there's also her testimony that she knew that the quality resort was owned by somebody else so she knew that my client the proprietor was somebody different than steve prior so she had that knowledge she also went to the morning and made a personal check out to steve prior for the ride she signed a waiver that only included steve prior and the person that he rents the horses from and so there's no reasonable ness to her belief that after all this information that she learns that they could be one in the same and further the representation on the website i don't think in and of itself could be sufficient to convey that meaning that they are one in the same as the plaintiffs the fact that the that's not something that our client can really be held accountable for the fact that somebody else decided that they wanted to adopt the name as a d b a it's not incorporated there's no we didn't have any say in the end what he was calling his business i suppose in hindsight now that this case has gone up in this argument has been attempted to be made that sure something could have been said that maybe you need to change your name but that's not something that my clients can really be held accountable for in addition that's what apparent authority it's all about it's about what the appearances to the outside world are sure absolutely whether there was you know some sort of awareness on the part of your client that there might be subjective awareness and that seems to be what you're arguing that they can't be held liable because it's not their fault that prior career i'm not sure how it's pronounced try to use the same name as their resort but i think if you want to examine whether or not the name in and of itself can bind them a again i think that goes to you need to look at the rest of the elements which is it was it was a separate entity name it was holiday or stables yes was a similarity but the point of did testify that you looked at some place book pages that were maintained by crier and the name of the facebook page was how at eight years stables asks how many properties i think yes there is a similarity in the name but the even the facebook name distinguishes that it's a separate entity that might be present at the resort and again then examining what the plaintiff her self admitted that she learned and understood prior to going on this trail ride i think further shows the same because there are the four elements that are needed the acts by egypt or principle the justifiable leave the knowledge of such acts by the parties not to be held which we have just discussed reliance on the apparent agency and then the key part that's often overlooked that was constant law makes a point of is the causal nexus between the planes its reliance on the agency relationship and the torch and in that case or in this case there's been no allegation that there's any kind of nexus and in fact there's really not been a whole development of this entire argument because it once waived for the district court so we're just kind of shooting blindly here trying to poke holes in places argument that they haven't really even made so i think the district court was correct in determining its whole issue was waived and the fact that the plaintiffs had asserted various facts and representations regarding marketing materials is immaterial to the fact that they couldn't connect the dots between the marketing materials and find that a agency one of the i want to go back though to the kind of broad statutory scheme regarding the plaintiff's argument from the brief that negligence is not immunized by the statute i think this case calls for a clear application of wisconsin law and case another allegation of negligence that the horse was mishandled and then stepped on somebody so i think one thing that really hasn't been articulated by the wisconsin courts because it seems to almost go without saying is that they don't focus necessarily on it the legal theories that are pled by the plaintiff but they look at the facts underlying the mechanism of injury and in this case the facts underlying the mechanism of injury are that the plaintiff's was on a trail ride focus on the exception concerning providing a horse to a person and feeling to make reasonable effort to determine her ability to reduce the free rein to absolutely i think the district court was correct when it determined that the  provided any evidence that steve prior did not make that assessment the undisputed evidence in the record show that the plaintiff didn't form him that she had written as an adult and from that he made the assessment to give the plaintiff his feet how to hang on central wisconsin cases have not interpreted any form of or any requirement of instruction into the status it isn't why isn't that a perfectly reasonable interpretation  of that duty where there's a duty to use reasonable care at least in that particular stage of the process while i believe that because of the initial assessment that the plaintiff was able to ride the evidence in the record shows that the horse is sensually just guided along and on all the other rides just follow the other horses that there was no need for this further instruction because the plaintiff wanted needed to know how to do anything more than sit on the horse that's what the owner says i understand it's summary judgement though that's my problem here all right and i appreciate that but i think the plaintiffs haven't proven that there is any form of instruction that's needed i understand that they don't have to prove it they have to offer some evidence but i don't think there's any case law that supports that what's whiskery swore rejected and sorry those case law rejects the idea it does not it's sign it but i think that had the plaintiff been provided with a horse that required some more control then perhaps that would have been reasonable but what you are sensing the entire picture doesn't in any horse require some of those in the isn't that what this whole episode tells us that even ballou the course that they all parties for their negligence and going back to except with respect to providing the horse and ensuring whether the determining the ability of the person to engage safely munich to be on their end to manage their horse  that's the exception and this is this is i get the idea that this is this is special interest legislation to protect an industry that was in trouble but it's also riddled with exceptions it is but i think to the point before regarding when that assessment is made at the time that the right started there was an assessment that was made that the plaintiff would be able to safely manage based on her representation of limited scale and matching with the horse i don't think they have a continued duty to re evaluate when the plaintiff says sometime later in the ride that she's having issues that i think would be an unreasonable i think there is a duty but that duty to take action and perhaps the failure to do so could be negligence which is then immunized and i don't think it necessarily falls under the willful and wanton because under wisconsin law while it's not intentional continue on its way safely even if it's an insufficient instruction is enough of a reasonable response to the plaintiff claim i can't force and i'm sorry could you repeat that today when the response comes from the leader trail leader not to worry because in this situation the horse will take care of your inability cause so there was no meant maybe an adequate under the reasonable standard you're saying that's reasonable conduct i don't think perhaps it was the most prudent but i don't think it falls into the line of unreasonable trail the appropriate response could have been all right i'll stop and take a look but the response reasonably by the trail the person who's running the trail who knew that the horse just walked along and stood in line was it's fine you don't need to even hold the reins again because this was a child's horse they can typically just plop somebody on there and let it go so i understand they could be deemed negligent and perhaps the trail rider could have addressed the plaintiff's complaint but that of negligence that would fall under the immunity for the act might immunity statute and i would also just like to point out that while i have a little bit of time left that i don't think there's really been any disputes or should say if the court determines tha it needs to simply apply wisconsin law and hold that negligent acts are immunised under the statute so long as they don't fall within any of the exceptions i don't really think there's been any argument other than the apparent agency arguments that my client the  e properties have fallen within any of the exceptions in the event that their negligence is immunised under the statute just very briefly i would also like to address the evidentiary issues in the case i don't think there is then sufficient argument or evidence presented that the district court abused its discretion in determining to strike both the plaintiffs retained experts and ten treating medical providing experts with regard to the retained experts the district court carefully analyzed the requirements for admissibility it determined that the plaintiff's expert had not used any methodology and even to the extent that the plaintiff argues that the expert was using her industry experience as a methodology there is still no explanation as to this is the industry standard this is how i know what's the standard and this is how it doesn't meet the standard instead the report simply said i didn't like what i didn't see here's my opinion and there was no analysis to it whatsoever and then turning to the treating providers the blanket summary that the plaintiff provided is woefully inadequate under the statute i think even just a plain reading of of the rule will lead to any reasonable person to determine that a blanket summary that says the treating providers will provide opinions regarding treatment causation injuries is in how to quit for a b teles to be able to determine that they provide a summary of the facts you're not allowed to just be frank with missions that i suppose they could be fact witnesses about and yes really big could come in and say these are these are my this is what happened but with regard to the fact that they were disclosed as not retained experts there was no discussion about what their treatment was what the facts they relied upon or what their opinions with the thank you thank you it's like a pickup with the ending that in this case the disclosure a little bit out of the norm because we specifically referenced depositions of the doctor food entered into an agreement with defense counsel that they could take deposition that was already taken in the case the court then approved the stipulation that the parties reached and included that we were going to take depositions of the doctors and that was the whole purpose of saying look you're to posing these doctors were green do what you do discovery depositions even though it's a federal case to the doctors agree to each be deposed twice they are all i can say your honor is they did not object they did not that they did not raise the one deposition per witness rule but clearly the defendant was ok with that because they in their disclosure f ninety four should they have done a plaintiff disclosure and the doctors deposition testimony so they clearly were ok with what they had found out on deposition and it's just ingenuous to see that they had to guess at what the doctors would say with regard to whether there is evidence the defendant's expert bean so that assessing the person's ability engage safely in economic activity always misses the defendant's expert always requires the trail right leader to determine if the writer knows how to steer would of course stop the horse or make the horse go and that's document one thirteen it's peach one thirty three there's no evidence of plaintiff knew hundred do any of those things and there is evidence that she didn't know how to do it she said that she did not understand the basic mechanics of a horseback ride that's inner jep a solution of peach twenty nine and she told them that she had no experience or knowledge about what spec writing so i would submit that there is in fact evidence that the defendant had knowledge she didn't know the most basic things and when the plaintiff told the trio right leader that she couldn't even reach the reins that's willful and wanton and willful and wanton depends on knowledge so i would submit