The HONORABLE STEPHEN M. REASONER, Chief Judge, United State s 1 District Court for the Eastern District of Arkansas, sitting by designation. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-3253

___________ Erin Marie Hallstrom, by and through * her Guardians and Next Friends, * * Plaintiff/Appellant, * * Appeal from the United States Thomas J. Hallstrom, * District Court for the Marlene Hallstrom, * District of South Dakota. * Plaintiffs, * * v. * * Kimberly Ammerman, * * Defendant/Appellee. *

___________ Submitted: March 14, 1997 Filed: May 15, 1997

___________ Before WOLLMAN and BEAM, Circuit Judges, and REASONER, District Judge. 1

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WOLLMAN, Circuit Judge. Erin Hallst rom appeals from the judgment entered on the jury’s verdict in he r action to recover damages for injuries she suffered when she was kicked by a horse. We reverse and remand for new trial.
I. In early June 1 992, Erin, then thirteen, her mother, Marlene Hallstrom, and her sister, Betsy, traveled from their home in Lincoln, Nebraska, to Winner, South Dakota, to visit Marlene Hallstrom's mother. On June 11, 1992, E

rin, her mother, and Betsy went to see some horses owned by Kimberly Ammerman. Ammerman asked Erin an d Betsy if they wanted to ride one of the horses. Ammerman then placed a halter on Lancer, her two-year-old Arabia n stalli on. Erin was boosted up onto the horse, whereupon Lancer bent down to graze, wi ththe result that Erin slid down his neck to the ground. Betsy then had a short , uneventful ride on Lancer, with Ammerman leading th e horse and Ammerman’s father, Don Wood, walking a

longside. Erin was then boosted back up onto Lancer. As Erin was atte mpting to push herself farther back on Lancer's back, she apparently touched Lancer's flanks with her feet, whereupon Lancer reared up, throwing Erin to the ground and kicki ng her in the face. Erin’s lip and chin were cut; one tooth was knocked out, and another tooth broken. Erin underwent surgery in the Winner hospital, from which she was released two days later. Erin has required additional medical and dental care to reduce the scarring on her face and to repair her broken and missing teeth. Erin, by and through her parents, sued Ammerman, alleging that Am merman was neglig ent in allowing Erin to ride the horse, in failing to saddle the horse, in failing to warn Erin or her parents that the horse might buck and rear, and in failing to control the horse. Ammerman denied the allegations and pled the affirmative defenses of-3-

contributory negligence and assumption of the risk. The jury was instructed that i t couldabsolve Ammerman of liability if it found that Erin had assumed the risk. The district court refused to give Erin’s requested jury instructi on on concurrent negligence. The jury returned a general verdict in favor of Ammerman . For reversal, Erin contends that th e district court erred in instructing the jury on assumption of the risk and in not instructing the jury on concurrent negligence.
II. The parties agree th at the law of the forum state applies in this diversity action. See Erie R. Co. v. T ompkins , 304 U.S. 64, 78 (1938). Under South Dakota law, jury instructions are to be considered as a whole and are adequate if they accurately state the law and advise the jury. See Bau man v. Auch , 539 N.W.2d 320, 323 (S.D. 1995). “The trial court sho uld instruct the jury on issues supported by competent evidence in the rec ord and is not required to instruct on issues that do not find support in th e record.” Id. Alleged errors are reversi ble only when they are shown to be prejudicial. See id. A. Assumption of the Risk
To support giving an instruction on assumption of the risk, a defendant mus t demonstrate that the plaintiff had actual or constructive knowledge of the risk, had an apprecia tionof its character, and voluntarily accepted the risk, having had the time , knowledge, and experience to make an intelligent choice. Gerlach v. Ethan Coo p Lumber Ass’n , 478 N.W.2d 828, 830 (S.D. 1991). As indicated earlier, at the t ime of the incident Erin was thirteen years old. She had had very little experience with horses. She had not grown up around horses, had no experience in trainin g horses, and had been on a horse only three times prior to the dat e of the accident. There was no evidence that she knew of the dangers of riding a-4-

two-year-old stallion, of

riding a horse without the proper equipment, or of touching a ho rse in the flanks, which Ammerman alleges precipitated Lancer's actions. Eve n assuming, as Ammerman contend s, that Ammerman’s mother told Erin and Betsy not to kick Lancer in the flanks, there is no evidence that Erin knew what the horse’s flanks were. Moreover , this warning was not, given Erin’s limited knowledge about horses, suffic ient to warn her of the particular risk of being thrown from the horse. To th e contrary, one expert testi fied that an inexperienced rider such as Erin would not know the difference between appropriate and inappropriate movements to make while on the horse’s back. A second expert testif ied that young Arabian stallions are unpredictable and t hat an inexperienced rider such as Erin would not know the risk of riding such a horse. Because there was no showing that Erin either knew or appreciated the risk of riding the horse or that sh e had the requisite experience to voluntarily accept that risk, there was no evidentiary support for the assumption of the risk instruction. Becaus e this instruction “could well have been read by the jury to inject the question o f plaintiff’s conduct as an issue be aring upon the question of liability,” Sears v. McKee , 298 N.W.2d 521, 522 (S.D. 1980), giving the instruction was prejudicial error. B. Concurrent Negligence
Erin alleges that Ammerman attempted to demonstrate that Marlene Hallstrom was at least par

tly responsible for Erin's injuries. Accordingly, Erin contends that the court erred in refusing to give her requested instruction on concurrent negligence:
More than one person may be responsible for causing injury to another. If y ou find that the defendant was negligent and that her negligence was a proximate cause of the accident involved herein, it is not a defense that some third person, not a party to this act ion, was or may have been partly responsible. Therefore, if you find the defendant was negligent, and that but for her negligence th e accident would not have happened, she cannot-5-

be relieved of any liability to the plaintiff b y claiming that somebody else, not a party to this action, was in part at fault.
Th e district court ruled that the instruction was inapplicable because Marlen e Hallstrom was in fact a party to the action. We conclude that the court did not err in so ruling. The judgment is reversed, and the case is remanded to the district court for new trial. A true copy.

Attest: CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.