The HONORABLE STEPHEN M. REASONER, Chief Judge, United States

1

District Court for the Eastern District of Arkansas, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-3253

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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. *

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 Submitted: March 14, 1997

 Filed: May 15, 1997

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

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WOLLMAN, Circuit Judge.

Erin Hallstrom appeals from the judgment entered on the jury’s verdict in her

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 1992, 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, Erin, her mother, and Betsy went to see some horses owned

by Kimberly Ammerman. Ammerman asked Erin and Betsy if they wanted to ride one

of the horses. Ammerman then placed a halter on Lancer, her two-year-old Arabian

stallion. Erin was boosted up onto the horse, whereupon Lancer bent down to graze,

with the result that Erin slid down his neck to the ground. Betsy then had a short,

uneventful ride on Lancer, with Ammerman leading the horse and Ammerman’s father,

Don Wood, walking alongside. Erin was then boosted back up onto Lancer. As Erin

was attempting 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 kicking 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 Ammerman was

negligent 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 
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contributory negligence and assumption of the risk. The jury was instructed that it

could absolve Ammerman of liability if it found that Erin had assumed the risk. The

district court refused to give Erin’s requested jury instruction on concurrent negligence.

The jury returned a general verdict in favor of Ammerman. For reversal, Erin contends

that the 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 that the law of the forum state applies in this diversity action.

See Erie R. Co. v. Tompkins, 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 Bauman v. Auch, 539 N.W.2d 320, 323 (S.D. 1995).

“The trial court should instruct the jury on issues supported by competent evidence in

the record and is not required to instruct on issues that do not find support in the

record.” Id. Alleged errors are reversible 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 must

demonstrate that the plaintiff had actual or constructive knowledge of the risk, had an

appreciation of its character, and voluntarily accepted the risk, having had the time,

knowledge, and experience to make an intelligent choice. Gerlach v. Ethan Coop

Lumber Ass’n, 478 N.W.2d 828, 830 (S.D. 1991). 

As indicated earlier, at the time 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 training horses, and had been on a horse only three times prior to the

date of the accident. There was no evidence that she knew of the dangers of riding a
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two-year-old stallion, of riding a horse without the proper equipment, or of touching a

horse in the flanks, which Ammerman alleges precipitated Lancer's actions. Even

assuming, as Ammerman contends, 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,

sufficient to warn her of the particular risk of being thrown from the horse. To the

contrary, one expert testified 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 testified that young Arabian stallions are unpredictable

and that 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 she had the requisite experience to voluntarily accept that risk,

there was no evidentiary support for the assumption of the risk instruction. Because

this instruction “could well have been read by the jury to inject the question of

plaintiff’s conduct as an issue bearing 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 partly 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 you 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 action, was or may have been partly

responsible. Therefore, if you find the defendant was negligent, and that

but for her negligence the accident would not have happened, she cannot
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be relieved of any liability to the plaintiff by claiming that somebody else,

not a party to this action, was in part at fault.

The district court ruled that the instruction was inapplicable because Marlene

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.