Affirmed and Opin ion and Concurring Opinion filed April 2 2, 2021

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 19

- 00175

- CV

MELISSA MARIE LOBUE , Appellant

V.

TODD H. HANSON D/B/A THE BARN AT FOUR PINES RANCH , Appellee

On Appeal from the 269th Distri ct Cour t

Harris County, Te xas Trial Court Cause No. 2017

- 18687

M AJORITY OPINION

In th ree issues , appellant Melissa Marie Lobue appeals the trial court ’ s fi nal summary judgment dismissing her claims against appellee Todd H. Hanson based on injuries that s he s uffered afte r petting one of hi s horses kept on his rustic wedding venue property

. Hanson filed a m otion for summ ary judgmen t on various grounds, including the gr ound tha t provisions under Chapter 87 of the
Texas C ivil Practice and Remedies Code (the “ F a rm Animal Ac t ” or the “ Act ” )

pr eclude her claims against Hanson

. We affirm.2 I. F ACTUAL AND P ROCEDURAL B ACKGROUND Appellee Todd Hanson owns a fifty

- six acre property in Crosby which he

rent s as a wedding venue called The Barn at F our Pines Ran c h

. C at tl e and two
ho rses were on the ra

nch at the time of the incident. Within the property a corral
fence enclos e d the barn where weddings take place. The corral fence contain ed a n opening closed off by a rope.

Ro bin and Delani a selected The Barn at Four Pi n e s as their w edding venue.
A t s ome point after they arrived at the venue on their wedding day, they discovered
the horses were roaming within the area to be enclose d for patrons

. Roughly an hour before the wedding ceremony, bridesmaid Melissa Lobue

w al k e d o ut to whe r e a group of peopl e were standing on the patio looking at the
horses. Lobue walked to the hor ses and began to pet one of the horses, Shilo h

. When she moved to pet the other horse , Shilo h disagreed, and grabbed her by the arm, shook her, an d t o s sed her o n the ground

. Lobu e brought th is personal injury
suit against Hanson for damages

. Lobue’s Claims

Lobue’s Original Petit ion raise d claims of “ premise liability ” , “ negligence ”
and “ negligence per se ”. 1

Lobue ’s pr emise liability claim all eg e s that Ha n s o n failed to adequate ly

warn her about the horse , failed to warn of its vicious tendencies , and that by leaving the horse “ loose ” , “ unattende d ” and “ in an unsafe place ” , Hanson breached his duty as owner of the facili ty to keep the property i n r e asonably s a f e condition

. Her negligence claims

— based on duties arising from Hanson’s

1 L acking an y refe ren c e or suggestion of a statutory violati on, Lobue does not really as s e rt any negli gence per se claim

— though as discussed below , the parties litigate d the merits of a “ str ict liability ” clai m

.3

responsibilities as a horse

- owner

— are based on the same alleg ed conduct, “[f] ailing to warn Plaintiff about the horse’s presence and/or vicious tendencies, [f] ai li n g to main t a i n the horse in a saf e place, [f] ailing to properly handle the horse , [and] [f] ailing to exercise reasonable care to prevent foreseeable harm by the
horse .”

Hanson’s Answers and Traditional and No Evidence Summary J udgments

Hanson filed his o r i ginal an s w e r generally denying Lobue’s allegations , and
later fi led an amended answer whi ch added his limitation of liability defense under
the Farm Animal Act . Hanson filed his consolidated Mo tion for Traditional an d
No

- Evidence Summary Judgment. T he t raditiona l p ortion of the motio n sought
dismissal of all of Lobue’s claims on two grounds : fi rst , the Farm Animal Act precludes Lobue ’ s claims ; and second, the assertion that uncontroverted evidence concerning Hanson’s knowledge of Shilo h ’s habits, ten de n c ies and d i s p osition
conclusivel y e stabli shed the absence of an essential element to Lobue’s negligence,
strict liability, and premise liability claims

. Hanson’s no evid ence summary judgment also sought to di s pose Lobue’s “negligence and negligence ha nd l i ng” claim s , challenging the suf fici ency of
Lobue’s evidence (1) “ to support a duty on the part of Hanson ” ; (2) “ of a breach of that duty ” ; (3) and “ of the proximate cause element of her negligence/negligent handling claim ”

. With respect to the foresee ab i l ity eleme n t of proximate cause,
Han son arg ue d that Lobue had no evidence that Hanson eith er knew of Shiloh ’ s disposition to injure persons or of a dangerous propensity or h ad constructive knowledge of same

. Lobue’s Response to Hanson’s Traditional and N o Evid ence S u m mary Judgment

In h er response to Hanson’s traditional and no evidence summary judgment
motions , Lobue argued that the F arm Animal Act was ina pplicable for various4

reasons, and , alternative l y , even if the Act did apply so do exceptions whic h

o p erate to r e m ove Hanson’s liabil ity

- shield

. To address Hanson’s no

- evidence
challen ges, Lobue attached and referred to her own de position an d depositions of Hanson, Billy Richardson, and the bride and groom. In support of her response,
Lobue focuse d o n t e stimony t h a t the horse roamed w ithout supervision, that the
bride a nd groom had req uested the removal of the horse before the in cident and the horse was not removed, the lack of warning signs posted on the proper ty, and the
lack of a sufficient barrier p r e venting t h e horses from ente rin g the enclosed area de signated for human guests only.

Su mmary Judgment On November 28, 2018, tr ial court issued its final order granting Hanson’s
Traditional and No Evidence Motion for Summary Judgment “in all things”, an d
ordered t h a t Hanson and Lobue w ere responsible for their own costs. Lobue timely filed a motion for ne w trial, which was denie d by operation of la w and now appeals the trial court’s summary judgment.

II. I SSUES AND A NALYSIS

On appeal, Lobue asserts t h r ee issues , t racking each of the trial court’s implicit rulings. First, she argues that she raised fact issues as to her ne gligence, premis e liability, and strict liability c laims. In her second and third issues , Lobue complains that the trial court er r e d in imp l i c i tly concluding that her claims against Hanson fell within the scope of the Farm Animal Act , and in concluding that none of the statutory excepti ons applied.

St andard of Review
In a traditional motion for summary judgment, if the movant’s m o ti on and

summa ry
- j u dgment evidenc e facially establish its right to judgment as a matter of5

law, the burden shifts to the no nmo vant to raise a genuine, material fact issue sufficient to defeat summary judgment. M.D. Anderson Hosp. & Tumor I nst. v. Willri c h , 28 S.W.3d 22 , 2 3 (Tex. 2000). I n reviewing a no

- evidence summary judgment, we ascertain whether th e nonmovant pointed out summary

- judgment

e vidence raising a g e nuine issue of fact as to the essential elements attacked in the

no
- evidence motion. Johnso n v. Brewer & P r itchard, P.C. , 73 S .W.3d 193, 206

– 08 (Tex. 2002). In our de novo review of a trial court’s sum mary judgment, we
consider all the evidence in the light most favorable to the nonmovant, crediting
evidence favorable to the nonmovant if reasona bl e jurors could , and disregardin g
cont rary evidenc e unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez , 206 S.W.3d 572, 582 (Tex. 2006). The e vid ence raises a genuine issue of fact if
reasonable and fair

- minded jurors could differ in their c on cl usions in li gh t of all of
the s umma ry
-

judgment e v idence. Goodyear Tire & Rubber Co. v. Mayes , 236
S.W.3d 754, 755 (Tex. 2007). When, as in this case, t he order granting the motion
for summary judgment does not specify the grounds upon which the trial c ou rt relied, w e must affirm the s ummary judgme nt if any of the i n d ependent summary

judgment grounds is meritorious. FM Pro ps. Operating Co. v. Ci ty of Austin, 22
S.W.3d 868 , 872 (Tex. 2000).

The Farm Animal Act

Because the Farm Animal Act could provide a co mplete bar t o all of
Lobue’s cl aims, we first address her second and third issues, whether Farm Animal Act applies, and if so whether any the statutory exceptions would perm i t Ms.
Lab u e ’ s claims to proceed

.
T he Far m Animal Act precl udes liability a gain st “any person, including a
farm animal activi ty sponsor, farm animal professional, livestock producer, livestock show participant, or livestock show sponsor , ” for “pr operty d amage or6

damages arising from the pe rsonal injury or death of a p articipant i n a farm animal

act ivity or livestock show if the property damage, injury, or death results from the danger s or conditions that are an inherent risk of a farm an i m al activ ity or the showing of an animal on a comp eti tive basis in a livestock sho w.” Tex. Ci v. P rac. & Rem. Cod e § 87.003 (West 2017). Section 87.003 explicitly identi fies five quali fying “dangers or conditions that are an inherent risk of a farm animal activity

. ” Id. § 87.003 (1)

- (5). Hanson ’ s motion identified thr ee of the five s t atu tory inheren t ri sks as implicat ed by the facts of the case : (1) the propensity of a farm ani mal or l ivestock animal to behave in ways th at may result in personal injury or death to a person on or around it ; (2) the unpredictability of a farm animal's

. . . reaction to s ound, a sudden movement, or an unfamiliar object, person, or other animal ;

. . . and (5) the potential of a p articipant to act in a negligent manner that may contribute to injury to the participant or another, including failing to maint ain control over a f arm animal or l ivestock animal or not acting within the participant's ability Id. § 87.003 ; Ro driguez v. Waak , 562 S.W.3d 570, 576

– 77 (Tex. App.

— Houston [1st Dist.] 2018), aff'd , 603 S.W.3d 103 (Tex. 2020)

. Hanson ’ s traditional
motion for summary judg ment based on the A ct, required that he state the specific grounds and conclusively establish all essential e lements of his limitation

- of

liability affirmat ive defense as provided under section 87.003. See KCM Financial
LLC v. Bradshaw , 45 7 S. W.3d 70 , 79 ( Tex . 2015). By inv oking immunity under
87.003 , Hanson was required to conclusively prove (1) Hanson qualified for (or
had standing ) to seek protection under the A ct, (2) Lobue qualified as a

“ participant ” , (3) “ in a farm an imal activity ” , and (4) that th e inj ury was a resu lt of

a statutory inherent risk

. See Tex. Civ. Prac. & Rem. Code § 87.003

. Hanson ’ s
summary
- judgme nt m otion describes and was supp orted by unchallenged proof7

that Hanso n was the owner of prop erty that functions as an even t sit e with hors es and catt le kept fo r non
- ranching purposes , and that the activity that gave rise to
Lobue ’ s in

juries w as her approaching and petting two unattended horses

. The first
and last essential elements were not the basis of sign ificant dispute i n summary judgme nt p apers or on a pp eal

. The trial court could fairly conclude that Hanson qualified as “ any pe rson ” entitled to seek protection under the A ct, and that the

a ctivity , a

n unfamiliar person ’ s direct cont act with horses , involved an inherent

r isk. See Loftin v. Lee , 341 S.W.3d 352, 3 54 (Tex. 2011) ; See also Johnson v.
Smith , 88 S.W.3d 729, 731 (Tex. App.

– Corpus Christi 2002, no pet. h.)

. The Act specifically limits liability arising from the p ersonal injury or death
of a “pa rticipant”, define d in relevant pa rt as “a person who engages in [a farm animal] activity, without r egard to whether the person is an amateur or professional or whether the person pays for t he activity or particip ates i n the acti vity for free”.
Tex. Civ. Prac. & R e m. § 87.0 0 1 (9)(A). The A ct generally applie s to partici pan ts

at shows and events but excludes ranch employees in the course of their employment

. See Waak v. Rodriguez , 603 S.W. 3d 103, 109

– 10 (Tex. 2020)

.

“ F a r m animal,” is defined in the statute to include “an equ ine animal” ,

ano th er defined term, which itself in cludes “ horse, pony, mule, donkey, or hin ny .” 87.001(2), (2

- a)(A).

“Farm animal activity ,” include s a number qualify ing activities

. Hanson argues t h a t the following apply : an “ event

. . .that involves far m animals,” “rid in g, inspecti ng, ev aluating, handl ing , loa ding or unloading a farm animal belonging to

an other,” and “ an informal farm animal activity , including a ride, tr ip, or hunt tha t is sponsore d by a farm animal activity sponsor

. ” Id. § 8 7.001(3)( A ) , (D), ( E ). The

p hrase “ e ngages in a farm animal activity ” means: riding, handling, training, driving, loading, unloading, assisting in the8

medical treatment of, being a passenger on, or assis ting a participant or spo nsor with a farm animal. The term in cludes managemen t of a show involvi ng farm animals

. The te rm does not include being a spectator at a farm animal activity unless the spectator is in an unauthorized area an d in immediate proximit y to t h e farm animal acti vity.” Id. § 87.001 (1). Lobue conte nds that she was n ot a part icipant because she was not engaged
in a farm an imal activity , therefore rend ering her claims outside the scope of the

statute. 2 Conversely, Ha nson describes Lobue’s injur i e s as occurring while “handling” Shiloh , and as part of an “ event ” in vo lv ing a farm animal

.
T he word “ ha

ndling , ” i s used with in t he statutory meaning of t w o a bove
defined

- phrases , “ [ f

] arm animal activity ” and “ [ e ] n gaged in f ar m animal activity

. ”
In Waak , the Supreme C o urt explained that “ handling ” ( like the words “ loading ”

an d “ unloading ” as used in the sta tute ) “ obviously ha [s] meanin g outsid e the
ranchi ng context , ” 603 S. W.3d at 110, and concluded that the type of handling

a ddressed by the Farm Animal A c t is not the same handling that a ranch hand typically engage s in

. Ha nd ling is not defin ed in the statu te.

If the meanin g of the statutory language is unambiguous, we adopt the interpretation supported by the plain meaning o f the provision ’ s words. St

. Luke ’ s Episcopal Hosp. v. Agbor , 952 S.W.2d 503, 505 ( Tex. 1997). We m u st not engage in forced or strai ned construct ion; instead, we must yield to the plain sense of the words the Legislature chose. See id

. The Oxford Dicti onaries define “ [h] andle, ”

t o mean “ feel or manipulate with the hands , ” “control som eone or somethin g ” , or

“ deal wit h ( someone or some thing) ”

. 3 The U.S . Department of Agriculture defines

2 The re is no dispu te that Shiloh, the offendin g anima l d escribed in Lobue’s claims is a horse, that a h orse falls within in the sta t u te’s definiti on of “equine animal”, and that in turn, an “an equine animal” is a “farm animal”. 8 7.001(2), (2

- a)(A)

. 3 See Oxford Online Dic tionary, “ handle ” , https: //www.l exico.com/d e finition/handle

.9

“ [a] nimal handling ” as “ a term that describes how humans work with, respond to,
and interact wit h animals within their surroundings. ” We cannot conclud e that the
trial c ourt would have e rre d if i t foun d after reviewing Lobue ’s own testimony describing her interaction with Shilo h, that when she was petting Shiloh , she was “handling ” h im in this li ter a l sense of the term , and accordingly that she was a

par ticipant in a fa rm animal activity

. See Waak , 60 3 S.W

. 3d at 109

– 10 ; See Young v. McKim , 373 S.W.3d 776, 78 1 (Tex. App.

— Houston [14th Dist.] 2012, pet. denied) citing Johnson v. Smith, 88 S.W.3d 729, 732 (Tex. App.

— Corpu s Chri sti 2002, no pet.) ( finding t hat under the pr ed ecessor statute, plaintiff leading a
stallion to its paddock fell within the common usage of “handling,” “training” and “assisting in the medical treatment of an equine.” )

. The tr ia l court would not have erred in finding that Ro bin and De lani a ’ s wedding ev ent qu alifies as an “event.

. .that involves f a r m an imals,” and there fore

a fulfills the meaning of a “farm animal ac tivity

. ” T he venue ’s websi te menti ons as an attraction t he feature o f livestock on the property. And a lthough Ro bin an d
Delani a did no t elect of have the p ictures

- with

- horses feature a part during their wedding , at some weddin g s at Four Pines Ran ch , guests take p ictures with the
horses

. Hanson testified that as part of the con tract with the bride and groom, he
advised th at they were res po nsible for warnin g the guests not to approach t h e animals. Thus, e ven if the wedding were to take place as intended wi th animals in the backdrop, the par

ti es contemplated possible human interac tion with the
animals.

T he trial court did no t err in its imp li cit finding that th e Farm Animal Act

a p p lied to Lobue ’s claims against Hanson ari sing from injuries she s uffered after petting Shiloh because at the time Lo bue was a person en gaging in a farm animal activity and was a “ participan t ” within the me aning of th e Act

.10

In her opening brief, Lobue ma k e s passing reference to the exclusion of

some “ spectators ” from the Ac t ’ s definition of “ engages in a farm animal activity ” : Furthermore, [Lobue] is not considered a participant under The T exas Farm Animal Liability Act. “En gages in a farm animal activity” means riding, handling, training, driving, loading, unloading, assisting in the medical treatment of, being a passenger on, or assisting a participant or sponsor with a farm animal. [ T ex. Civ. Prac. & Rem. Code . § 8 7. 00 1

. ] The term includes management of a show involving farm animals. Id. The term does not include being a spectator at a farm animal activity unless the spectator is in an unauthorized area and in immediate proximity to th e farm animal ac tivity. Here, [ Lobu e] did none of the above, thus she is not considered a p articipant under the Act. (emphasis added ).

C onstruing Lobue ’ s brief liberally, we cannot conclude that by simply stating verbatim the third sentence contained in the statutory de finition of “en gage s in a farm animal activity ” , which operates to exclude some “spectators ”, that
Lobue adequately briefed any argument that she was a “spectator ” at all, much less
in a manner that excluded her from the definition “ engages in a farm anima l activity ” or rend ered her a non
- participant , or that the trial court erred in its implicit finding that she was n ot a “ spectator ”. Tex. R. App. P. 38.1(i) ; Fox v.
Alberto , 455 S. W.3d 659, 663, n.1 (Tex. App.

— Houston [14th Dist.] 2014, pe t. denied)

. W e next consider whet her Lobue r aised a fact issue on eit her of the two exceptions to t he liability shield that she raised in her summary judgment response. First, Labue argues that Ha nson failed to post warnings in v iolation of section
87. 0 0 5, which requir es that a farm anim al p rofessional or livestock show sp onsor is re quired to post wa r

n ings in their contracts and at their facilities

. However,11

section 87.005 is not in fact a statuto ry exception to the liability shield

. 4 Rather,
whi le the provision manda tes si gnage , it is wit hout any defined penalty for non

co mpliance

. Lobue h as not s h own and we have not found authority that converts
th e failure to provide the warning into a basis for removing the liability protection afforded by the Act

. Second, Lobue argues that se ctio n 87.004(2) applies , which provides that limitation of liability d oes not apply if:
(2) the person provided the farm animal or livestock animal and the person did not make a reasonable and pru dent effor t to determine the ability of the participant to enga ge safely in th e farm animal activit y or livestock show and dete r m ine the ability of the participant to safely manage the farm animal or livestock animal, taking in to account the participant's representa tions of ability; Though there is no evidence sug gest ing that Hanson made any efforts to
determine any of the wedd ing p articipa nt s ’ abilit i es to engage safely with the
horses , the exception would not apply because Lob ue did not provide evidence that
Hanson ’ s failure to make an ability

- asse ssment of Lobue was the cause of her damages. 5 The Sup reme Court has made clear th a t the excep tion is limited to
situations were “ the failure to make the required determination is it self the cause of the damag e

. ” Loftin v. Lee , 341 S.W.3d 352, 359 (Tex. 2011)

. Lobue f aile d to
assert th is theory in her petit ion or put for th the evidenc e of the causa l relationship

.

4 We note that the A ct ’ s exceptions are listed i n section 87.004 where as the warning notice provision is in the next subsection, 87.005.

5 At best, Lobue asserted in h er summar y judgment respons e that “ Todd Hanson faile d to ma ke reasonab l e efforts to determine whether the wed ding guests had the knowledg e and ability to safely interact unsupervised with the horses at his venue

. ” But even in her respons e , Lobue did not al lege , or p ut forth evidence of a causal connection.12 III. C ONCLUSION

Be c ause Lobue has not shown that the trial co urt erre d in granting Hanson ’ s

summar y
- judgmen t mot ion under th e th eory that he r claims wer e pr ecl uded u nder
the F arm Animal Act , we ove rrule Lobue ’ s second and third complaints a nd af firm
th e tria l court ’ s judgment

.

/s/ Randy Wilson Justice

P anel consis ts o f Justices Jew ell , Spain , an d Wilson (Spain, J., concurring )

.