cordle to see to the second case of the day brown versus country view of questions may please the court it's very interesting to note that and researching this case there are some forty states that have passed echoing liability acts activity acts but there isn't much case law regarding the definition of those acts and the exemptions and yet here today we have two cases in a row involving the wisconsin liability activity act because we can be pretty kind of for the first of the century and to reach this court yes that the the issue in our case and the facts are different in our case than in the other case that you what i am a witness to the yes i am a witness but have i testified as a witness no and i most likely will not testify as a witness i do not see a conflict at this point other than a probably overly passionate about it's ever given brown retained or hired a professional instructor to give her a private riding lesson regarding the throw bread which she only golding gift she told the instructor that she was a green writer that she needed instruction and that the horse was an off the track thoroughbred and he was green as well but it was a controlled setting from the standpoint that an instructor is much like a referee in a football game instructor can not only controls the writer controls the horse he or she controls the environment in which separates is operating and she controls the obstacles or the maneuvers or the gates that the horse is going to be taken she stands in the middle of the ring and she conducts it like a conductor conducting a symphony three b the immunity section and the and i and all due deference to to the court i heard you cite the three b exception and i heard you use the word and when talking about the two determinations that three b cites the first determination is that the provider shall determine basically the ability of the writer he a good fit for the horse the second part uses the word or and as the mettler court interpreted determines whether or not the provider can safely manage the horse that the writers writing the provider or the writer the provider that's and not in the manner of the structure of the statute it or that it is unclear because clearly abrogates the immunity in provider of the horse fails to make to determinations about the person's ability the person meaning the plaintiffs in the case participant from the second section when they when they drafted this this law it's so the only plain reading can be that they want the provider to safely manage the horse once it has been provided that by reading it or the safe proviso that point to a person it makes a prisoner effort to determine the ability the person negates safely or t an instructor situation the instructor is is controlling the entire situation if the instructor feels that they have the worst is not an adequate amount or too much worse for the rider the instructor has responsibilities say i will not give you a lesson on this particular course he's too much for you to handle so that and helen vs helen defines provides as a course either own or you control obviously the instructor in this situation did not own gold and gift but the instructor controlled golden gift and because of her control she meets the definition of provides and has a duty to one find out whether it's a good match and again i know we disagree on this but when i read this section and i relate it to the colorado statute which is more more addict more directly written you m safely manage that worse once it's been provided because otherwise if there is no duty to safely manage that instructor could have that student jumping on a six foot boxer when she is a beginning right i mean you're going to do what the instructor tells you to do and to to remove that to remove any type of duty of care from that instructor and that controlled situation means that instructor to have that student doing things far beyond his ability or or the horse's ability that seriously injured and then walk away so i have no responsibility here it is you know you have to read the two together and again i'm down to i'll stop here with two minutes to go but the colorado statute which the wisconsin statute was based on had in the second part of their immunity provision the participant must safely manage his x y and they included that the participant just around here here it's unclear whether it's a participant or the provider ok mr brown could you tell me what the difference in the language in your view to engage safely and a quine activity now we go to the or part to safely manage a particular and cli provided what is the difference there is or it isn't a just redundancy no no because one you're focusing you're focusing on the ability of the writer the second part you're focusing on the ability of the provider to safely manage one is the writer one is the provider and you can see how that that is so it clearly sets out when you read the colorado act which was was the wisconsin right on the colorado act and the colorado act very specifically waits that that second question points to a part a participant and it was go change that to take the participant out right so tell we interpret the statute that the legislature wrote we rather than whatever the drafting instructions were in the statute that they wrote i think it's different from the colorado statute the by taking that language out it made it it made it that the provider must safely manage actually not didn't it doesn't focus on the ability of the provider it is the singular focuses on the providers duty to ascertain or make a reasonable effort to determine the ability of the person who's being provided the horse to either engage in akron activity in the first deals with the duties of the provider otherwise i mean in your trail situation you know yasser tain who can handle what we're says you have the trail right or taking out this group of horses and he decides to cross some bog that has all kinds of holes in it and and you know verses are falling into the in the holes and riders are falling off and and the whole thing is chaos that may be an argument for a different statute  document but more limited to what the statute says and i guess i the way i read it and reading it differently you we have that i'm going to allow you some rebuttal times thank you very much  you very much and i apologize for  krebs order for this missing plane of complaint for failure to state a claim upon which relief can be granted we're also requesting the court deny plaintiff's request for remand with leave to amend her complaint as way of background i don't think there's any dispute that the wisconsin quantum unity statute applies here the debate is the exception and so the question is with that section eight hundred five point four eight one section subsection b whether or not that applies here there are several cases i didn't realize we would be talking about all the neckline cases this morning but i'm sure the court is familiar with the barrett below helen b helen of the two published court of appeals cases there is no supreme court case that i'm aware of and then there's the other case the district or western district wisconsin delay versus holiday ckers the exception has two parts i know we've been talking about it here the first part is country view the plaintiff mushy all that country view a question some are provided an echoing to her and this first part of the exception was discussed in the barrett case and the facts are similar to this case there was an accident and it occurred during a riding lesson and barrett moritur horse with low during the lesson low had instructed barrett to retrieve her horse cow away from the pen for a lesson and while doing so another horse attacked cowboy and barrett was injured the issue on appeal was that barrett claim that lho provided the horse to her and so in the bird court began with interpret in the statute with the plain language of the statute and i think that's what we need to start with  provided or supplied the plaintiff or force in fact paragraph nine of the plaintiff's complaint states quote the plaintiff provided her own accord to be used in a private lesson and so you know the question then comes up does provided have a different meaning in the complaint than it does in the statute presumably the plain language of the word provided means the same and what she alleged in the complaint where she provided her own horse i don't believe we need to look further but if we do there's case law that discusses that there's no dispute that she brought her own horse and used it in less than the third court went on to talk about a sale is not the same as providing providing suggests that the person supplying the item retains some interest in the item and that an act wind they were satisfied at the end of the case that a neck wind of providing an equity means making it available for use th provider either owns or controls and my colleague is fixating on the control part of it but at the end of the opinion the court concluded when she sold cowboy low gave up all over ownership and control of the horse the beret therefore the statutory immunity exception did not apply now what i think is relevant is barrett bored of a horse with low but that did not mean that lho had control for the purpose of the exception furthermore barrett was in the middle of a lesson in that case and told to retrieve her horse the court did not find that lho had control because there was a lesson going on here and i think both of those are relevant because they're similar to the issues in this case now plaintiffs are argument is that because she provided a pro she provided an eck wind to the instructor in the structure accepted it and made it available back to her there's no wisconsin case law that supports this argument  and even as an initial matter assuming that that argument was valid i'm not sure there's facts alleged in the complaint that would support that there's no allegation that country view question center had any ownership of the eck wine and there's no allegation that the instructor ever had any direct control  act one owner control well neither one is alleged in the uk in the complaint now the complaint does allege that the plaintiff was under control of the instructor during the lesson but not th it was also discussed in helen b helen there are some important differences in that case neither of the parties had ownership of the force so they had to look at the control as an issue but one of the notes that judge craft pointed out in her decision was that the helen court recognise that a person who already owns a horse can participate in eck one activity without being provided an act one and i think that's clearly what happened in this case there's a plain meaning of make available for use the facts alleged clearly state plaintiff brought her own horse and she provided it for use in a private lesson there's no allegation that country of you supply the horse or had any interest in this horse so i think on the plain language of the decisions interpreted in it that the provider has to make two initial determinations one what is the ability of the person provided with the act wind to safely engage in the act one activity and to his or her ability to safely manage the particular act one i believe the interpretation that i've heard discussed your by the court that that needs to be made prior to the activity and it is the proper interpretation the i think you know we're comparing the statute to  colorado i think the correct reading are if this provides an eck wind to a person and makes a reasonable effort to want to determine the ability of the person to engage safely in an eck one activity or two to safely manage the particular act line provided based on the person's representation of his or her ability i think this reading actually provides a slightly broader exception than colorado's because colorado requires both in inquiries be made wisconsin only requires one and that's the difference between the and then the door so you are exceptions probably a little bit broader than colorado and i don't think the or makes it a completely different meeting and a whole different statute than colorado the other thing i'm concerned about is if oh if we accept the plaintiffs interpretation of the statute that somehow the provider now is required to safely manage the horse after this initial inquiry the problem we have with that is this exception applies not just to lessons like we're looking at of these two cases or a trail ride it applies to any act one activity for example a rodeo so somebody is going to do a bucking bronco riding the provider for vides a horse they're not the rider they make the two the two initial inquiries as far as they're really to safely engage and the ability to safely manage now the other rider gets on we say in the provider now is responsible for everything that happens after that i just don't think that's a reasonable interpretation of the statute that exception has to apply to every possible act one activity not just lessons and so furthermore you know to say that there's a continuing duty now to manage the horse well that i think pretty much eliminates the immunity for anyone that provides an echoing somebody let's say my client leases out or rents out horses to somebody that wants to come and just do a ride and it's not a supervised ride they have a duty now to manage that when they're not even there that i don't think that that's a reasonable interpretation of the statute and certainly one of the inherent parent risk listed in the statute is a failure to control the motion to alter amend judgement within twenty eight days and there has been no request under sixty b for relief from judgment or order and so a plaintiff cites no case law indicating that judge trevor erred in a dismissal with prejudiced and there's no case l again the colorado act is form the basis for the wisconsin statute and i have got an exhibit attached to the brief that shows rewrite for wisconsin it came out of the legislative history file anything that would aid or help us in understanding the statute and how it was was passed the the how that thomas found the concurrence and the call case not the majority opinion i'm not familiar with it case but the if you're arguing a statutory interpretation case under wisconsin law you should be familiar with that case the colorado act the second section states determined and determined the ability of the participant to safely manage the particular act like it's not in the wisconsin act they took that language either they didn't use that language or took it out for that i read it but didn't bother i don't think that was ever raised as an issue they the matter case started out so the issue in this case is did the instructor safely manage  right that's the way that i read that case because that appears to be the plain reading and to argue otherwise an instructor would have horses that she provided and so she now she owes a duty to safely manage and she has horses that she did provide so she has no duty to see if there's a duty if the duty is on the instructor or the provider of the horses to manage them safely there doesn't seem to be much left of immunity have a flight response and when they're spooked they jump or they do whatever they have to do to get away from what they perceive is going to her or harm them that is an inherent risk an inherent danger in writing an act like and i believe that's what the statutes were were written to deal with not this to absolve all due care involved  responsibility especially many of the statutes had a different standard when people were earning money with with the the rental horses or whatnot wisconsin doesn't seem to address the difference between