## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 11 - 00288 - CV

GREG HILZ, INDIVIDUA LLY AND AS NEXT FRIEND (AS F ATHER AND SOLE LEGAL GUARD IAN) FOR CIARRA HILZ, AND CIARRA HILZ APPELLANTS

V. RICHARD RIEDEL APPELLEE

---------- FROM T HE 141ST DISTRICT COURT OF TARRANT COUNTY

---------- 

### MEMORANDUM OPINION 1

---------- I. I NTRODUCTION This case involves the Texas Equ ine Limitation of Liability Act (the Act). See Tex. Civ. Prac. & Rem. Code Ann. §§ 87.001

– .00 5 (West 2011 ). Appellants G reg Hilz, individually and as next friend (as father and sole legal guardian) for

1 See Tex. R. App. P. 47.4.2

Ciarra Hilz, and Ciarra Hilz appeal the trial court’s grant of summary judgment in favor of Appellee Richard Riedel. We will reverse and remand

. II. B ACKGROUND Thirteen

- ye ar - old Ciarra , Greg’s daughter, and Steven, Richard’s son , were friends

. Sometime in early May 2010, Ciarra went to S teven ’s house to “hang out,” swim, and look at several horses owned by Richard. Ciarra did not ride any of the horses that day , but she e xpressed an interest in doing so at a later date

. Several weeks later, o n May 30, 2010, Greg drove Ciarra to Steven’s house so that Ciarra could ride one of Richard’s horses and then swim

. Ciarra had taken horse

- riding l essons when she was younger and ha d ridden horses at summer camp the previous two summers, but in Greg’s opinion, Ciarra was not

“ even an intermediate

- level horse rider.” In light of Ciarra’s “relative lack of experience with horses,” and wanting to protect her from injury, Greg claims th at when he dropped Ciarra off at Steven’s house, he told Richard that he did not want Ciarra to ride a horse outside of the roughly forty

- foot by sixty

- foot round pen located on Richard’s property. Greg “believed that the pen was a controlled environment in which the likelihood that Ciarra would be injured would be significantly diminish ed.” Richard, on the other hand, claims that Greg did not say anything about where he wanted Ciarra to ride a horse. According to Richard, he and Greg briefly discussed C iarra’s horse

- riding experience, and Greg said that Ciarra was excited to ride a horse. Greg then left.3

Richard rode “ Logan , ” a five

- year - old male quarter horse , in the pen and
q uestioned Ciarra about her horse

- riding experience, including w hat type of

r iding she had done

. Ciarra told Richard that she was “better than average” and that she rode both “ English ” and “ Western. ” Richard then allowed Ciarra to ride Logan in the pen for approximately thirty to forty

- five minutes. According to Richard, during this time he observed how Ciarra “sat” on Logan while he walked, trotted, and cantered in the pen; how Ciarra controlled Logan; and how Logan reacted to Ciarra. Once Ciarra confirmed to Richard that she was comfortable riding Logan , Ciarra, riding Logan, a nd Richard, riding “Leta,” a fifteen

- year - old female quarter horse, proceeded out of the pen and over t o a pasture owned by Richard’s neighbors, the Wisnie w skis

. Ciarra testified in her deposition that instead of asking Richard if she could ride Logan in the pasture, Richard simply “assumed” that Ciarra wanted to ride Logan in the pasture and permitted her to do so, provided that she felt comfortable riding Logan. Richard, however, claims that Ciarra asked him multiple times that day if she could ride in the pasture and that he allowed her to do so only after he “assessed that Ciarra had capable riding skills and abilities and received reassurance from Ciarra that she was comfortable riding Logan in the pasture.” At some point a fter Ciarra had ridden in th e middle of the pasture for approximately thirty minutes (galloping and trotting) , Logan turned and started running as fast as he could

— or bolted

— towards a tree. Ciarra tried to pull4

Logan’s head to the side to turn him away from the tree, but Logan ran C iarra into the tree, and she f e ll to the ground. In addition to numerous cuts, a tree limb “impaled” Ciarra’s side and went into her groin, causing a “five

- minute bleed,” according to Greg, and she sus tained a broken pelvis . Ciarra was taken to the hospi tal, where she stayed for a week and had multiple surgeries performed. Ciarra later opined that she thought Logan reacted like he did because he wanted Ciarra off of him

— it was hot, Logan was probably tired, and he “didn’t want to be ridden.” Appellants s ued Richard in September 2010 to recover damages for the injuries sustained by Ciarra , alleging claims for negligence, negligence per se, premises liability, and violati o n of the recreational use statute. 2 Richard file d a traditional and no

- evidence motio n for summary judgment , argu ing that Appellants’ claims were barred by the Act and that several exceptions to the Act’s limitation on liability did not apply to permit any liability. Appellants responded and filed objections to Richard’s motion. Although t he trial court granted Appellants’ objection that Richard’s mot ion should not be considered a

no - evidence motion for summary judgment , the trial court

— considering Richard’s motion as a traditional motion for summary judgment

— granted Richard summary judgm ent on all of Appellants’ claims

. III. E XCEPTIONS TO L IMITATION ON L IABILITY

2 Appellants also sued the Wisniewskis, but those claims were later nonsuited.5

In their only issue, Appellants argue that the trial court erred by rendering summary judgment for Richard because ( a ) the order grants relief on grounds not presented in Richar d’s motion for summary judgment, (b ) a genuine issue of material fact exists regarding Richard ’s liability under two ex ceptions to the Act’s limitation on liability

— civil practice and remedies code sections 87.004(2) and (4) , and (c ) the Act is unconstitut ional as applied to A ppellant s for violating the open courts guarantee of the Texas constitution. We address Appellants’ procedural argument in the context of considering the section 87.004(4) argument, and in light of our holdings, we do not address Appe llants ’ open courts issue

. See Tex. R. App. P. 47.1. In a summary judgment case, the issue on appeal is whether the movant met the summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to ju dgment as a matter of law. Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009). We review a summary judgment de novo. Travelers Ins. Co. v. Joachim , 315 S.W.3d 860, 862 (Tex. 2010)

. We take a s true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. 20801, Inc. v. Parker , 249 S.W.3d 392, 399 (Tex. 2008); Provident Life & Accident Ins. Co. v. Knott , 128 S.W.3d 211, 215 (Tex. 2003). We consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could and disregarding6

evidence contrary to the nonmovant unless reasonable jurors could not. Mann Frankfort , 289 S.W.3d at 848. We must consider whether reasonable and fair

minded jurors could differ in their conclusions in light of all of the evidence presented. See Wal

- Mart Stores, Inc. v. Spates , 186 S.W.3d 566, 568 (Tex. 2006); City of Keller v. Wilson , 168 S .W.3d 802, 822

– 24 (Tex. 2005). Section 87.003 of the Act states that “ [e]xcept as provided by Section 87.004, any person

. . . is not liable for

. . . damages arising from the personal injury or death of a participant in an equine activity

. . . if the

. . . injury

. . . results from the dangers or conditions that are an inherent risk of an equine activity. ” Tex. Civ. Prac. & Rem. Code Ann. § 87.003. 3 Richard spends a considerable amount of effort explaining why his liability is l imited by section 87.003, but Appellants unambiguously conceded in their summary judgment response that Ciarra was injured while participating in an “equine activity” and that her injuries resulted from dangers that were an “inherent risk” of an equine act ivity. Thus, Appellants acknowledge that section 87.003 limit s Richard’s liability. They argue, however, that two exceptions to the Act’s limitati on on liability contained in sections 87.004(2) and (4) apply to establish Richard’s liability for Ciarra’s

3 The legislature amended the Act in 2011 to substitute the term “farm animal” for “equine.” See Act of May 23, 2011, 82 nd Leg., R.S., ch. 896, §§ 2

– 5, 2011 Tex. Sess. Law Serv. 2287, 2289 (West). The changes apply only to a cause of action that accrues on or after the effective date of the statute, June 17, 2011. Id. § 6. Because Appellants’ claim accrued before the effective date of the amended Act, we refer to the prior version of the Act.7

injuries

. U nder section 87.004, a person is liable for damages arising from personal injury or death caused by a participant in an equine activity if: (2) the person provided the equine or livestock animal and the person did not make a reasonable and prud ent effort to determine the ability of the participant to engage safely in the equine activity or livestock show and determine the ability of the participant to safely manage the equine or livestock animal, taking into account the participa nt’s representat ions of ability; [or]

. . . . (4) the person committed an act or omission with willful or wanton disregard for the safety of the participant and that act or omission caused the injury. Id. § 87.004(2), (4). A. Section 87.004(2)
In Loftin v. Lee , Lee f ell to the ground and was injured when the horse that she was riding through a low

- lyin g, muddy area bolted. 341 S.W.3d 352, 354

– 55 (Tex. 2011)

. Lee argued that Loftin should have done more to determine Lee’s ability to ride trail, pointing out that Loft in asked her no questions, but Loftin responded that she already knew all there was to know about Lee’s ability and that she had observed that Lee had no trouble mounting her horse. Id. at 35 9. T he supreme court held that the court of appeals erred by de termining that a fact issue existed regarding whether Loftin made the required ability determination s under section 87.004(2). Id. at 359

– 60. It reasoned that “section 87.004(2) applies only when the failure to make the required determination is itself t he8

c ause of the damage ” and determined that “section 87.004(2) does not require a formal, searching inquiry

. ” Id. C ompared to the determination made by Loftin of Lee’s riding ability in Loftin , in this case , Richard ’s inquiry into Ciarra’s ability to saf ely ride and manage Logan would , at first glance , appear to be adequate to demonstrate section 87.004(2)’s inapplicability

— Richard spoke to Greg and Ciarra about Ciarra’s horse

- riding experience an d observed Ciarra ride Logan in the pen for approximately t hirty to forty

- five minutes

. See id. But t his assessment would be incorrect because unlike Lee in Loftin , Greg produced additional summary judgment evidence that rais ed a fact issue as to section 87.004(2)’s applicability

. First , Greg is Ciarra’s father and sole legal guardian. He stated in his affidavit that he specifically told Richard that he did not want thirtee n - year - old Ciarra to ride a horse outside of the pen. Unlike Richard, who based his decision to allow Ciar ra to ride outside of the pen upo n information that he gathered the same day of the incident , Greg based his instruction prohibiting C iarra from riding outside of the pen up on his knowledge of Ciarra’s riding experience that he had gather ed o ver the course of years as her father

. Despite Greg’s alleged express directive , Richard (a) opted to perform an independent evaluation of Ciarra’s ability to safely ride outside of the pen, (b) substituted his opinion of Ciarra’s abilities fo r Greg’s opinion about Greg’ s own daughter’s ability to saf ely ride outside of the pen , and (c) countermanded Greg’s instruction to limit Ciarra ’s riding to in side of the pen. We hold that under these facts

— where Richard9

purportedly acted directly contrary to Greg’s express instruction t hat Ciar ra was not permitt ed to ride outside of t he pen

— Appellants raised a genuine issue of material fact regarding whether Richard made a reasonable and prudent effort to determine Ciarra’s ability to safely ride and manage Logan

. See Tex. Civ. Prac. & Rem. Code Ann. § 87.004(2)

. Richard argues that section 87.004(2) does not apply because there is no causal nexus between Ciarra’s injuries and Richard’s alleged failure to make the required determination of Ciarra’s ability to safely ride and manage Logan. He contends that the A ct “would be meaningless if the rule is that when a participant sustains an injury, the determination of the participant’s riding ability was per se unreasonable or not prudent.” We agree that section 87.004(2) does not impose strict liability for an inad equate determination. See Loftin , 341 S.W.3d at 359 (explaining that section 87.004(2) could not be construed to impose strict liability for an inadequate determination of a participant’s ability). But here, Ciarra would not have sustained her injuries i n the pasture had Richard not countermand ed Greg’s instruction that Ciarra was prohibited from riding outside of the pen. Further, unlike in Loftin , wh ere Lee did not “contend that any further inquiry by Loftin into [Lee’s] ability to ride could have prev ented the accident,” Greg argues that Richard

— who was armed with conflicting information about Ciarra’s riding ability

— should have made further inquiry with Greg to determine w h ether he still opined that riding outside of the pen was inappropriate for Ciar ra’s skill level. See id.10

Taking as true all evidence favorable to Appellants and indulg ing every reasonable inference and resolv ing any doubts in their favor, we hold that Appellants produced summary judgment evidence raising a genu ine issue of material fact about whether Ri chard made a “faulty assessment ” under section 87.004(2) of Ciarra’s abilities to safely ride and manage Logan. See Tex . Civ. Prac. & Rem. Code Ann. § 87.004(2) ; Loftin , 341 S.W.3d at 356

. We sustain this part of Appellants’ issue. B. Section 87.004(4) Appellants argue under another part of their only issue that the trial court erroneously granted Richard summary judgment on Appellants’ claim under civil practice and remedies code section 87.004(4) because Richard did not move for summary judgment on that ground

. Richard responds that he did move for summary judgment on Appellants’ section

- 87.004(4) claim and that any error in granting summary judgment on that ground was harmless. Unaddressed issues or claims cannot be a basis for summary judgment. Chessher v. Sw. Bell Tel. Co. , 658 S.W.2d 563, 564 (Tex. 1983). When a plaintiff amends its pleadings after a defendant has moved for summary judgment, the defendant must ordinarily file an amended motion for summary judgment to be ent itled to prevail on the entirety of the plaintiff’s case. Blancett v. Lagniappe Ventures, Inc. , 177 S.W.3d 584, 592 (Tex. App.

— Houston [1 st Dist.] 2005, no pet.). A n amended or supplemental motion for summary judgment is not required , however, when the a mended petition essentially reiterates11

previously pleaded causes of action , when a ground asserted in a motion for summary judgment conclusively negates a common element of the newly and previously pleaded claims, or when the original motion is broad enoug h to encompass the newly asserted claims

. Rotating Servs. Indus., Inc. v. Harris , 245 S.W.3d 476, 487 (Tex. App.

— Houston [1 st Dist.] 2007, pet. denied). Here, Appellants did not allege in their original petition that section 87.004(4) was applicable

. T hey argued for the first time in their first amended original petition that Richard was liable under section 87.004(4) , and they alleged the same claim in their second amended original petition, which they filed just before filing their summary judgment re sponse. Richard did not move for summary judgment on the claims alleged by Appellants in the ir first amended original petition , which had been on file, nor did Richard amend or supplement his motion for summary judgment after Appellants filed their second amended original petition. Instead, Richard moved for summary judgment on the claims alleged by Appellants in their original petition. This is apparent because Richard observed in his motion that “there have been no allegations in this s u it that

. . . t his accident was the result of any willful or intentional acts” and that “[t]he only two exceptions that have been alleged are” sections 87.004(2) and (3). 4 T hese contentions are clearly a ccurate as to Appellants’ original petition , not their amended peti tions. Richard’s motion then argued in detail

— with

4 Also, Richard attached Appellants’ original petition to his motion for summary judgment.12

extensive references to his attached summary judgment evidence

— why he i s entitled to summary judgment on Appellants’ claims under section s 87.00 4 (2) and (3)

. 5 Richard’s motion did not include any argumen t as to section 87.004(4). Accordingly , Richard did not move for summary judgment on Appellants’ claim under section 87.00 4(4). Richard argues that he did move for summary judgment on Appellants ’ section 87.004(4) claim because he stated in his motion, “ As to the exceptions enumerated above, there has been no evidence presented or pleading made by Plaintiff that exceptions (1), (4) , (5), or (6) are applicable to this case.” [Emphasis added.] While this statement may have been sufficient under a no

- evide nce motion for summary judgment, the trial court granted Appellants’ objection to Richard’s no

- evidence motion for summary judgment and expressly granted Richard’s traditional motion for summary judgment. Richard made no effort in his motion to show that he was entitled to summary judgment on traditional grounds on Appellants’ section

- 87.004(4) claim , nor was his motion broad enough to encompass Appellants’ later

- asserted claim under section 87.004(4). Richard additionally argues that any error in grantin g summary judgment on Appellants ’ section

- 87.004(4) claim was harmless because the trial court properly granted Richard summary judgment on Appellants ’ section

- 8 7.004(2)

5 Appellants did not allege in their second amended original petition that the exception contained in section 87.004(3) was applicable, nor do they make any such argument on appeal.13

claim, and “the finding [that] the Act applies to [Richard] and that the reasonable

an d prudent inquiry exception does not apply as a matter of law , necessarily subsumes and precludes a finding [that] the willful and wanton exception applies.” This argument is unpersuasive because we concluded above that the trial court erred by granting s ummary judgment on Appellants’ section

- 87.004(2) claim

. We hold that the trial court erred by granting Richard summary judgment on Appellants ’ section

- 87.004(4) claim . We sustain this part of Appellants’ only issue. We need not address Appellants’ open courts argument. IV. C ONCLUSION Having held that the trial court erred by granting summary judgment for Richard on Appellants’ claims under civil practice and remedies code section s 87.004(2) and (4), we reverse the trial court’s order granting Richard s ummary judgment and remand the case to the trial court.

BILL MEIER JUSTICE PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.
DELIVERED: June 14 , 2012