### In the 

# United States Court of Appeals For the Seventh Circuit

____________________

No s

. 17

- 2 485 & 17

- 2970 J UDY D ILLEY , Plaintiff

- Appellant ,

v.

H OLIDAY A CRES P ROPERTIES , I NC ., and S TEVE K RIER , Defendant s

- Appellee s

.

____________________ Appeal s from the United States District Court for the Western District of Wisconsin. No. 16

- cv

- 91

- jdp

— James D. Peterson , Chief Judge

.

____________________
No. 17

- 3289
A BIGAIL E. B ROWN , Plaintiff

- Appellant ,

v.

C OUNTRY V IEW E QUESTRIAN C ENTER , I NC ., Defendant

- Appellee

.

____________________2 Nos. 17

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Appeal from the United States District Court for the Western District of Wisconsin

. No. 17

- cv

- 342

- bbc

— Barbara B. Crabb , Judge

.

____________________
A RGUED F EBRUARY 23, 2018

— D ECIDED S EPTEMBER 25, 2018

____________________

Before F LAUM , S YKES , and H AMILTON , Circuit Judges

. S YKES , Circuit Judge . Judy Dilley and Abigail Brown were injured while horseback riding in Wisconsin

. Both women are citizens of other states, so they sued the trail and stable operators in federal court in w estern Wisconsin a ssert ing claims of negligence

. They lost at summary judgment and on the pleadings, respectively

. Their appeals, which we have consolidated for decision, requir e us to interpret and apply Wisconsin ’s e qui ne

- immunity statute . With certain exceptions, t he statute blocks recovery for injuries that result from “an inherent risk of equine activities. ” W IS

. S TAT

. § 895.481 (2)

. The courts below held that the equine

- immunity statute bar s their claims.
We affirm. Dilley’s claim s fall within the scope of the statutory immunity because a trail operator’s negligence is

an “ inherent risk of equine activi ties ” as that phrase is defined in the statute . And no excepti on to immunity appl ies . Th e trail operators reasonably assessed Dilley’s ability to ride a horse and to safely manage the particular horse they assigned to her ; they did not act in willful or wanton disr egard of her safety; and the tack they provided was n ot faulty. Brown concedes that her claim falls within the scope of immunity but invokes an exception that applies if theNos. 17

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defendant provided a horse for the plaintiff

. B ecause Brown rode her own horse , that exception is unavailable.
I. Background Dilley’s suit comes to us from a summary judgment, see F ED

. R. C IV

. P. 56, so we construe the facts in the light most favorable to her and draw all reasonable inferences in her favor. Steve Krier operates Holiday Stables, a trail

- riding facility in Rhinela nder, Wisconsin

. Holiday Acres Properties, Inc., which owns and operates an adjacent vacation resort, owns the property on which Holiday Stables operates. Judy Dilley reserved a ride at Holiday Stables on July 17, 2015. S he informed Krier when she made the reservation that she had no horseback

- riding experience. On the day of the ride, Krier’s employee Nicole Kremsreiter asked Dilley if she had ridden a horse before

. Dilley , who was then in her mid

- sixties, told Krier and Kremsreiter that she had no recollection of riding a horse, though she may have done so when she w as a child. So Krier matched Dilley with Blue, his most docile horse and one he typically assign ed to small children. Prior to the ride, Dille y received no instruction from Krier or Kremsreiter on how to ride a horse, and neither of them adjusted the stirrups to fit her body n or provided her with a helmet

. Kremsreiter rode in front of Dilley during the trail ride. Partway through the ride Dilley told Kremsreiter that she did not “have ahold of this rope” (meaning the reins ) . Kremsreiter responded, “Don’t worry; this h orse knows where it wants [ to ] go, ” and never looked back. After 15 or 20 minutes , Blue attempted to pass Kremsreiter’s ho r se. That horse kicked at Blue, prompting Blue to rear up and, in4 Nos. 17

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turn, causing Dilley to fall backward to the ground . She

s ustain ed a head injury, fractured ribs and vertebra, and a punctured lung

. Dilley , a citizen of Illinois, sued Holiday Acres and Krier in federal court in the Western District of Wisconsin , invoking the court’s diversity jurisdiction and seeking damages for negligence, negligence per se, and willful and wanton conduct

. Holiday Acres moved for summary j udgment , arguing that Wisconsin’s equine

- immunity statute barred Dilley’s cl aims. T he judge agreed . He then invited Dilley to explain why her claims against Krier were not also barred

. F ollowing additional briefing, the judge entered judgment for both defendants, holding that the statute blocked Dilley’s cla ims by conferring immunity on the sponsors and participants in equine activities for injuries that result from “ an inherent risk of equine activities,” W IS

. S TAT

. § 895.481(2),and defining that risk to include any participant’s negligence, se e id

. § 895.481(1)(e)4. T he judge also ruled that no exception to immunity applied because Krier and Kremsreiter reasonably assessed Dilley’s ability to engage in horseback riding in general and to safely manage Blue in particular, and Dilley offered no evidence of willful or wanton conduct or faulty tack. Abigail Brown also sustained injuries while horseback riding in Wisconsin

. Her case comes to us from a dismissal on the pleadin gs, see F ED

. R. C IV

. P. 12(b)(6), so we take the following factual allegations from the complaint, accepting them as true for present purposes. Country View Equestrian Cente r owns and operates a horseback

- riding stable in Monroe, Wisconsin. Brown took a ri ding lesson from a Countr y View instructor at its indoor riding facility. SheNos. 17

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brought Golden Gift, her own horse, to the facility and rode him during the lesson. As the lesson proceeded , the instructor allowed a second horse and rider to enter the arena

. The instructor was aware that the second horse was “high spirited” and requ ired a very experienced rider. The instructor directed the rider of the second horse to jump a fence in the arena . A s th e rider turned the horse t oward the fence to perform the jump , the horse sped off, bucking and leaping out of control until it collided with Golden Gift. Brown was thrown from her horse a nd sustained multiple leg fractures

. Brown , a citizen of Missouri , s ued Country View in federal court in the Western District of W isconsin , invoking the court’s diversity jurisdiction and seeking damages for ne gligence. Country View moved to dismiss the complaint based on the equine

- immunity statute . Brown conceded t hat her claim fell within the general scope of the immunity conferre d by the statute

. S he invoked a n exception for claim s against a person who “[p ]rovide s an equine to a person ” but fail s to reasonab ly assess the person’s ability to “engage safely in an equine activity or to safely manage the particular equine provided

. ” W IS

. S TAT

. § 895.481(3)(b). But Brown was injured riding her own horse

— not one provided by Country View

— so t he judge ruled that the exception was inapplicable and dismissed the complaint. Dilley and Brown appealed . W e s cheduled the ir cases for argu ment on the same day and now consolidate them for decision

.6 Nos. 17

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II. Discussion
A. Dilley

We review a summary judgment de novo. See Laborers’ P ension Fund v. W.R. Weis Co. , 879 F.3d 760, 766 (7th Cir. 2018). Dilley contends that the equine

- immunity statute does not bar her claims . She first argues that an injury caused by the negligence of a trail operator fall s outside the scope of equine immunity. T hat argument cannot be squared with the statutory text

. She next in vokes three exceptions to immunity; however, none applies.

1. Scope of Immunity Wisconsin’s equine

- immunity statute blocks recovery for certain injuries sustained during equine activities. The
statu t e establishes a broad rule of immunity and carves out

se veral exceptions. Here is the general immunity rule : [A] person, including an equine activity sponsor or an equine professional, is immune from civil liability for acts or omissions related to hisor her participation in equine activities if a person participating in the equine activity is injured or killed as the result of an inherent risk of equine activities. § 895.481(2). T he term “[i]nheren t risk of equine activities”

means “a danger or condition that is an int egral part of equine activities

. ” W IS

. S TAT

. § 895.481(1)(e) . The statute then provides a nonexclusive list of five risks t hat fit within that broad definition . Relevant here is “[t]he potential for a person participating in an equine activ ity to act in a n egligent manner

. ” § 895.481(1)(e) 4

.Nos. 17

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Dilley argues that the negligence of a tr ail operator (like Krier and Kremsreiter) is not an inherent risk of horseback riding because it is avoidable and therefore not an “integral part” of the activity. § 895.481(1)(e). The statutory text forecloses that argument. As we’ve just noted, t he statu te’s enumerat ion of immunized risks includes the “ potential for

a person participating in an equine activity to act in a negligent manner

. ” § 895.481(1)(e)4. The term “equine activity” broadly includ e s (among other things) : “[r]iding , training, or driving a n equine or being a passenger on an equine ” and “[a]ssisting a person participating” in any of those activit ies

. W IS

. S TAT

. § 895.481(1)(b)5, (1)(b) 9. Krier plainly assisted Dilley in an equine activity when he scheduled t he trail ride and selected a hors e for her to ride , and Kremsreiter did so when she le d the ride. Dilley’s claim fits squarely within the scope of the statutory immunity.

2. Exceptions to Immunity
After demarcating the scope of immunity, the statute lists various exceptions

. Dilley draw s our attention to three

. She f irst invokes exception (3)( b), which applies when a person [ p ] rovides an equine to a person and fails tomake a reasonable effort to determine the ability of the person to engage safely in an equine activity or to safely mana ge the particular equine provided based on the person’s representations of his or her ability. § 895.481(3) (b)

. Everyone agrees that Krier and Kremsreiter provided a horse to Dilley , but that is where the agreement ends.8 Nos. 17

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Holiday Acres reads the exception as abrogating immunity when an equine provider fails to make a reasonabl e effort
to assess the rider ’s ability to do two things: (1) “engage safely in an equine activity” as a general matter and (2) safely “manage the particular equine provided.” Id. Dille y proposes a different interpretation. In her view the exception applies when the provider of a horse fails to reasonably assess the rider ’s ability to engage safely in an equine activity and the provider fails to safely manage the horse

. A s Dilley sees it , immunity is abrogated in her case because Krier an d Kremsreiter did not safely manage Blue

. T he Wisconsin Supreme Court has not had occasion to address exception (3)(b) . T he state court of appeals has done

so , but its decision s point in opposite directi ons

. Compare Hellen v. Hellen , 831 N.W.2d 430, 436 n.8 (Wis. Ct. App. 2013) (“[T]he statute speaks in terms of a reasonable effort to make two related but different determinations: the ability of the person provided with an equine to engage safely in an eq uine activity, and his or her ability to safely manage the particular equine prov ided.”), with Mettler ex rel. Burnett v. Nellis , 695 N.W.2d 861, 863

– 64 (Wis. Ct. App. 2005) (“Whether [the defendant] is entitled to immunity turns on whether the exception t o equine immunity applies: did [ t he defendant ] safely manage the horse on the day of the accident in light of [the plaintiff’s] ability and experience?” )

. W ith out clear or consistent guidance from the intermediate appellate court, we’re on our own in predict ing how the Wisconsin Supreme Court would interpret the statute

. T hat task is not difficult

. O nly Holiday Acres’ reading accords with the text and structure of the statute

. To begin, the general grant of immunity broadly covers injuries resultingNos. 17

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f rom the “[i]nherent risk of equine activities , ” which specifically includes “[t]he potential for a person participating in an equine activity ... to fail to control the equine

. ” § 895.481(1)(e) 4

. We see no meaningful difference between failing to “control” a horse and failing to “ safely manag e”
one, so if Dilley’s proposed interpretation of exception (3)(b) is correct, it creates significant internal tension with in the
statute

. Moreover, exception (3)(b) plainly centers on the provider’s assessment of the rider’s abilit ies. The exception lifts immunity when an equine provider fail s to make a “reasonable effort to determine the ability of the person to engage safely in an equine activity or to safely manage the particular equine provided based on the person’ s representations of his or her ability .” § 895.481(3)(b) (emphases added). Exception (3)(b) is thus textually limited to cases in which an equine provider negligent ly fail s to ascertain the rider ’s ability
to ride a horse or to safely manage the specific horse provided based on the rider’s representations of his ability

. It does not abrogate immunity for a provider’s negligent management of a horse. Courts in other states have understood similarly worded exceptions in this way

. See Taylor v. Howren , 606 S.E.2d 74, 76 (Ga. Ct. App. 2 004) ; Estes v. Stepping Stone Farm, LLC , 160 So. 3d 299, 306 (Ala. Civ. App. 201 4 ). Dilley argues in the alternative that even if Holiday Acres’ interpretation is correct, Krier and Kremsreiter failed to reasonably as sess her ability to engage safely in equine activity and to safely manage Blue. T he record does not support this contention

. It’s undisputed that b efore the trail ride began , Krier and Kremsreiter specifically determi ned that Dilley was a beginner. Dilley does not explain what10 Nos. 17

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more they should have done to determine her ability to ride a horse. She points to Kr ier’s deposition testimony in which he admit t ed that he does not normally ask riders to demonstrate their riding abilit y by taking a lap around the paddock before the tra i l ride begins

. But exception (3)(b) refe rs to the provider’s assessment of the rider’s horse back

- riding ability“based on the person’s representations of his or her ability”

— not a n actual demonstration or a test ride

. Beyond that, Dilley mer ely laments that Krier and Kremsreiter fail ed to give her riding instruct ions. B ut exception (3)(b) does not cover claims of negligent failure to instruct

. It applies only when an equine provider fai ls to make a reasonable effort to determine a rider ’s gen eral experience level and assign a horse commensurate with that experience

. Nothing like that happened here. There’s no dispute that Krier and Kremsreiter asked Dilley about her experience, learned that she had none, and accordingly paired her with Blue , the most docile horse in their stable and the one usually assigned to small children

. Dilley argues that Kremsreiter failed to re assess he r ability to safely manage Blue while the ride was underway, especially after she told her she did not “ have a hold ” of the reins. This argument assumes that exception (3)(b) covers a provider’s negligent failure to continuously assess a rider’s ability for the entire duration of the ride. B ut nothing in the text suggests that the exception applies if the provider fails to periodically re evaluate how the rider is doing

. Rather, t h e exception focuses o n the moment when the equine provider matches the rider with a particular horse.

Next , Dilley invokes an exception that removes immunity if the defendant “ [a]cts in a willful or wanton disregardNos. 17

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for the safety of the person.” § 895.481(3)(d ). Th is exception applies, she contends, because she was a novice horseback

rider in her mid

- sixties, and Krier and Kremsreiter allowed her to ride without either instru ction s or a helmet

. Th e “willful or wanton” exception has not been the subject of any published state appellate decision, so we ’re left to draw on how the Wisconsin Supreme Court has defined th is term in other context s

. The phrase comes up in cases involving claims for punitive damage s. At one time, i f a plaintiff prove d that the defendant acted in “wanton, willful, or reckless disregard of [his] rights or interests,” t he jury could award punitive damages. Loveridge v. Chartier , 468 N.W.2d 146, 159 (Wis. 1991). Two types of conduct satisfied that standard : The first type is that in which the defendant desires to cause the harm sustained by theplaintiff, or believes that the harm is substantially certain to follow his conduct. With the second type of conduct the defendant knows, or should have reason to know, not only that his conduct creates an unreasonable risk of harm, but also that there is a strong probability, although not a substantial certainty, that the harm will result but , nevertheless, he proceeds with his conduct in reckless or conscious disregard of the consequences.
Id. (quotation marks omitted). The immunity statute’s exception for “willful or wanton” disregard of safety does not include recklessness , so it is more demanding than the standard described in Loveridge

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But the conduct at issue here does not satisfy even Loveridge ’s less exacting standard. Nothing in the record supports a finding that Krier or Kremsreiter were aware ( or should have been aware ) of a “strong probability” that Dilley would be harmed

. Dilley ’s argument rests largely on her deposition testimony that she alerted Kremsreiter partway through the ride that she could not reach the horse’s reins and Kremsreiter replied, “Don’t worry; this horse knows where it wants [ to ] go.” P erhaps that was negligen t , but it’s not enough to show that she disregarded a n obvious “ strong probability ” of harm. T he failure to provide a helmet likewise does not meet the “willful or wanton” standard. It may affect the severity of an injury in the event of an accident , but it doe s not create

a strong probability that an accident will occur . And no evidence sug gests that Dilley’s age should have alerted Krier and Kremsreiter to a strong probability of harm.
Last, Dilley relies on an exception that applies when the defendant “[p]rovides equipment or tack that he or she knew or should have known was faulty and the faulty equipment or tack causes the injury or death.” § 895.481(3)(a). Dilley complains only that no one adjusted her stirrups . S he do es not claim that her stirrups

— or any other equipment or tack

— were defective in any way

. This exception plainly does not apply. Because the equine

- immunity sta tute blocks Dilley’s claim s , the judge correctly entered judgment for Holiday Acres and Krier

. 1

1 Our holding makes it unnecessary to address Dilley’s arguments about apparent agency and the judge’s ruling striking her expert’s report.Nos. 17

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B. Brown We review the dismissal of Brown’s complaint de novo. Collins v. Vill age of Palatine , 875 F.3d 839, 842 (7th Cir. 2017). Like Dilley, Brown argues that her claim fits within exception (3)(b) , but in her case the argument is a complete nonstarter. The e xception ap pl ies only if the defendant “ p rovide s ” a horse to a rider

. § 895.481(3)(b). Brown brought her own horse, Golden Gift, to Country View and rode him during the lesson. Brown argues that Country View “ provided ” Golden Gift because its instruc tor exercised control over the lesson and accept ed Golden Gift into the arena

. That’s a far

- fetched interpretation of the exception . In ordinary English, “ p rovide” means “to supply or make available.” Provide , M ERRIAM

- W EBSTER ’ S C OLLEGIATE D ICTIONARY (11th ed. 2003). A horseback

- riding student who brings his own horse for a lesson supplies the horse ; the instructor does not

. Indeed, Brown ’s complaint betrays just how bizarre her argument is: she affirmatively alleged that she “ provided her own horse to be used in the private lesson.” ( E mphasis added

. ) Brown has pleaded herself out of the exception

. To bolster her argument , Brown relies on Barritt v. Lowe , 66 9 N.W.2d 189, 190 (Wis. Ct. App. 2003), but that case does not help her . In Bar ritt a riding instructo r sold the pla intiff a horse named Cowboy , and the plaintiff boarded the horse at the instructor’s stables. W eeks later wh en the pl aintiff was retrieving Cowboy from his pen, another horse attacked him , and she sustained injuri es in the process. The plaintiff sued the instructor, invoking exception (3)(b) and insisting that the instructor “provided” Cowboy

— one of the two ho rses involved in the accident

— by selling him to her weeks14 Nos. 17

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earlier

. T he court rejected that strained interpret ation, concluding that the phrase “provides an equine ” in exce ption (3)(b) means “to make available for use an equine that the provider either owns or controls.” Id. at 193. Because the instructor gave up all ownership and control of Cowboy when she sold h im to the plaintiff, the exception did not apply. Seizing on the phrase “owns or controls,” Brown reads Barritt as support for her claim that exception (3)(b) applies here because Country View’s instructor “ controlled ” the riding lesson. Not so. Barritt h olds that to “provide an equine” for purposes of the exception means that the defendant own ed or control led the equine in question and mad e it available for the plaintiff’s use. A riding instructor does not “ provide ” a horse owned by the riding student merely by exercising control over the riding lesson

. Brown argues unpersuasively that reading the exception to exclude her situation is “irrational and illogical.” In her view it’ s irrational to abrogate immunity when a r iding instructor provid es a horse to a student without a reasonable effort to match the horse to the student’s ability but to leave immunity intact when the student rides his own horse. She does not explain why t his line

- drawing is irrational. I t strikes us as entirely reasonable that a rider who owns his own horse should bear the risk of a mismatch between his riding ability and his horse’s temperament. As importantly , the immunity statute and its exceptions necessarily entail policy judgments about how much exposure to liability is to o much in this sphere of recreational activity

. Unless the statute admits of no rational justification, i t’s not our job toNos. 17

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second

- guess how Wisconsin’s legislature has drawn these lines. In short, nothing in the statut ory te x t or c ase law support s Brown’s reading of exception (3)(b). The judge was right to d ismiss her complaint

. 2
A FFIRMED

.

2 Alternatively, Brown asks us to “remand this matter

... with leave to allow her to file an amend ed complaint. ” On appeal she proposes to add a conclusory allegation that the defendant acted with “willful and wanton disregard” for her safety. As we’ve explained, t hat ’s an exception
to the statutory immunity. But i f Brown wanted to rely on the exception, she could an d should have raised it in the district court . She did not seek leave to amend or otherwise alert the judge to the substance of a proposed amendment, so her request for a remand for this purpose is improper. See Hagan v. Quinn , 867 F.3d 816, 829 n.6 (7th C ir. 2017) (affirming dismissal with prejudice; the plaintiffs’ request for leave to amend the complaint did not explain the proposed revisions or offer a proposed amended complaint); Wagner v. Teva Pharm. USA, Inc. , 840 F.3d 355, 359 (7th Cir. 2016) ( expla ining that the district court did not err by failing to order, sua sponte, an amendment of the complaint that the plaintiff did not seek); James Cape & Sons Co. v. PCC Const. Co. , 453 F.3d 396, 400

– 01 (7th Cir. 2006).