In the

United States Court of Appeals

For the Seventh Circuit ____________________

Nos. 17-2485 & 17-2970

JUDY DILLEY,

Plaintiff-Appellant,

v.

HOLIDAY ACRES PROPERTIES, INC.,

and STEVE KRIER,

Defendants-Appellees.

____________________

Appeals 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

ABIGAIL E. BROWN,

Plaintiff-Appellant,

v.

COUNTRY VIEW EQUESTRIAN CENTER, INC.,

Defendant-Appellee.

____________________
2 Nos. 17-2485, 17-2970 & 17-3289

Appeal from the United States District Court 

for the Western District of Wisconsin.

No. 17-cv-342-bbc — Barbara B. Crabb, Judge.

____________________

ARGUED FEBRUARY 23, 2018 — DECIDED SEPTEMBER 25, 2018

____________________

Before FLAUM, SYKES, and HAMILTON, Circuit Judges.

SYKES, 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 western Wisconsin asserting 

claims of negligence. They lost at summary judgment and on 

the pleadings, respectively. Their appeals, which we have 

consolidated for decision, require us to interpret and apply 

Wisconsin’s equine-immunity statute. With certain exceptions, the statute blocks recovery for injuries that result from 

“an inherent risk of equine activities.” WIS. STAT. § 895.481(2).

The courts below held that the equine-immunity statute bars

their claims.

We affirm. Dilley’s claims fall within the scope of the 

statutory immunity because a trail operator’s negligence is 

an “inherent risk of equine activities” as that phrase is 

defined in the statute. And no exception to immunity applies. The 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 

disregard of her safety; and the tack they provided was not 

faulty. Brown concedes that her claim falls within the scope 

of immunity but invokes an exception that applies if the 
Nos. 17-2485, 17-2970 & 17-3289 3

defendant provided a horse for the plaintiff. Because Brown 

rode her own horse, that exception is unavailable. 

I. Background

Dilley’s suit comes to us from a summary judgment, see 

FED. R. CIV. 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 Rhinelander, 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. She 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 was a child. So Krier matched Dilley with Blue, his 

most docile horse and one he typically assigned to small 

children. 

Prior to the ride, Dilley received no instruction from 

Krier or Kremsreiter on how to ride a horse, and neither of 

them adjusted the stirrups to fit her body nor 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 horse 

knows where it wants [to] go,” and never looked back. After 

15 or 20 minutes, Blue attempted to pass Kremsreiter’s horse. 

That horse kicked at Blue, prompting Blue to rear up and, in 
4 Nos. 17-2485, 17-2970 & 17-3289

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

sustained 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 judgment,

arguing that Wisconsin’s equine-immunity statute barred 

Dilley’s claims. The judge agreed. He then invited Dilley to 

explain why her claims against Krier were not also barred. 

Following additional briefing, the judge entered judgment 

for both defendants, holding that the statute blocked Dilley’s 

claims by conferring immunity on the sponsors and participants in equine activities for injuries that result from “an

inherent risk of equine activities,” WIS. STAT. § 895.481(2), 

and defining that risk to include any participant’s negligence, see id. § 895.481(1)(e)4. The 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 pleadings, see FED. R. CIV. P. 12(b)(6), so we take the 

following factual allegations from the complaint, accepting 

them as true for present purposes. Country View Equestrian 

Center owns and operates a horseback-riding stable in 

Monroe, Wisconsin. Brown took a riding lesson from a 

Country View instructor at its indoor riding facility. She 
Nos. 17-2485, 17-2970 & 17-3289 5

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 required a 

very experienced rider. The instructor directed the rider of 

the second horse to jump a fence in the arena. As the rider 

turned the horse toward 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 and sustained multiple leg fractures.

Brown, a citizen of Missouri, sued Country View in federal court in the Western District of Wisconsin, invoking the 

court’s diversity jurisdiction and seeking damages for negligence. Country View moved to dismiss the complaint based 

on the equine-immunity statute. Brown conceded that her 

claim fell within the general scope of the immunity conferred by the statute. She invoked an exception for claims

against a person who “[p]rovides an equine to a person” but 

fails to reasonably assess the person’s ability to “engage 

safely in an equine activity or to safely manage the particular 

equine provided.” WIS. STAT. § 895.481(3)(b). But Brown was 

injured riding her own horse—not one provided by Country 

View—so the judge ruled that the exception was inapplicable and dismissed the complaint.

Dilley and Brown appealed. We scheduled their cases for 

argument on the same day and now consolidate them for 

decision.
6 Nos. 17-2485, 17-2970 & 17-3289

II. Discussion

A. Dilley

We review a summary judgment de novo. See Laborers’

Pension 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 falls outside the scope of 

equine immunity. That argument cannot be squared with the 

statutory text. She next invokes 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 

statute establishes a broad rule of immunity and carves out 

several 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 his 

or 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). The term “[i]nherent risk of equine activities” 

means “a danger or condition that is an integral part of 

equine activities.” WIS. STAT. § 895.481(1)(e). The statute then

provides a nonexclusive list of five risks that fit within that 

broad definition. Relevant here is “[t]he potential for a 

person participating in an equine activity to act in a negligent manner.” § 895.481(1)(e)4.
Nos. 17-2485, 17-2970 & 17-3289 7

Dilley argues that the negligence of a trail 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, the statute’s 

enumeration 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 includes (among other things): “[r]iding, training, or 

driving an equine or being a passenger on an equine” and

“[a]ssisting a person participating” in any of those activities. 

WIS. STAT. § 895.481(1)(b)5, (1)(b)9. Krier plainly assisted 

Dilley in an equine activity when he scheduled the trail ride 

and selected a horse for her to ride, and Kremsreiter did so 

when she led 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 draws our attention to three. She 

first invokes exception (3)(b), which applies when a person

[p]rovides an equine to a person and fails 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). Everyone agrees that Krier and Kremsreiter 

provided a horse to Dilley, but that is where the agreement 

ends. 
8 Nos. 17-2485, 17-2970 & 17-3289

Holiday Acres reads the exception as abrogating immunity when an equine provider fails to make a reasonable 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.

Dilley 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. As Dilley sees it, immunity is abrogated in her case

because Krier and Kremsreiter did not safely manage Blue.

The Wisconsin Supreme Court has not had occasion to 

address exception (3)(b). The state court of appeals has done 

so, but its decisions point in opposite directions. 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 

equine activity, and his or her ability to safely manage the 

particular equine provided.”), 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 to equine immunity applies: did [the defendant] safely manage the horse on the day of the accident in 

light of [the plaintiff’s] ability and experience?”). Without

clear or consistent guidance from the intermediate appellate 

court, we’re on our own in predicting how the Wisconsin

Supreme Court would interpret the statute.

That task is not difficult. Only Holiday Acres’ reading accords with the text and structure of the statute. To begin, the 

general grant of immunity broadly covers injuries resulting 
Nos. 17-2485, 17-2970 & 17-3289 9

from 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 manage”

one, so if Dilley’s proposed interpretation of exception (3)(b)

is correct, it creates significant internal tension within the 

statute.

Moreover, exception (3)(b) plainly centers on the provider’s assessment of the rider’s abilities. The exception lifts

immunity when an equine provider fails 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 negligently fails 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. 2004); Estes v. Stepping Stone 

Farm, LLC, 160 So. 3d 299, 306 (Ala. Civ. App. 2014).

Dilley argues in the alternative that even if Holiday 

Acres’ interpretation is correct, Krier and Kremsreiter failed 

to reasonably assess her ability to engage safely in equine 

activity and to safely manage Blue. The record does not 

support this contention. It’s undisputed that before the trail 

ride began, Krier and Kremsreiter specifically determined 

that Dilley was a beginner. Dilley does not explain what 
10 Nos. 17-2485, 17-2970 & 17-3289

more they should have done to determine her ability to ride 

a horse. She points to Krier’s deposition testimony in which 

he admitted that he does not normally ask riders to demonstrate their riding ability by taking a lap around the paddock 

before the trail ride begins. But exception (3)(b) refers to the 

provider’s assessment of the rider’s horseback-riding ability

“based on the person’s representations of his or her ability”—not an actual demonstration or a test ride.

Beyond that, Dilley merely laments that Krier and 

Kremsreiter failed to give her riding instructions. But exception (3)(b) does not cover claims of negligent failure to 

instruct. It applies only when an equine provider fails to 

make a reasonable effort to determine a rider’s general 

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 reassess her ability to safely manage Blue while the ride was underway, especially after she

told her she did not “have ahold” 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. But nothing in the text suggests that the 

exception applies if the provider fails to periodically reevaluate how the rider is doing. Rather, the exception focuses on 

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 disregard 
Nos. 17-2485, 17-2970 & 17-3289 11

for the safety of the person.” § 895.481(3)(d). This exception 

applies, she contends, because she was a novice horsebackrider in her mid-sixties, and Krier and Kremsreiter allowed 

her to ride without either instructions or a helmet.

The “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 this 

term in other contexts. The phrase comes up in cases involving claims for punitive damages. At one time, if a plaintiff 

proved that the defendant acted in “wanton, willful, or 

reckless disregard of [his] rights or interests,” the 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 the 

plaintiff, 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. 
12 Nos. 17-2485, 17-2970 & 17-3289

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.” Perhaps that was negligent, but it’s not enough to show 

that she disregarded an obvious “strong probability” of 

harm. The 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 does not create

a strong probability that an accident will occur. And no

evidence suggests 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. She does 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 statute blocks Dilley’s 

claims, 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. 17-2485, 17-2970 & 17-3289 13

B. Brown

We review the dismissal of Brown’s complaint de novo. 

Collins v. Village 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 exception applies only if the defendant “provides” 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 instructor exercised control over the lesson 

and accepted Golden Gift into the arena. That’s a far-fetched 

interpretation of the exception. In ordinary English, “provide” means “to supply or make available.” Provide, 

MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (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.” (Emphasis added.) Brown has 

pleaded herself out of the exception.

To bolster her argument, Brown relies on Barritt v. Lowe, 

669 N.W.2d 189, 190 (Wis. Ct. App. 2003), but that case does 

not help her. In Barritt a riding instructor sold the plaintiff a 

horse named Cowboy, and the plaintiff boarded the horse at 

the instructor’s stables. Weeks later when the plaintiff was 

retrieving Cowboy from his pen, another horse attacked 

him, and she sustained injuries in the process. The plaintiff 

sued the instructor, invoking exception (3)(b) and insisting 

that the instructor “provided” Cowboy—one of the two

horses involved in the accident—by selling him to her weeks 
14 Nos. 17-2485, 17-2970 & 17-3289

earlier. The court rejected that strained interpretation, concluding that the phrase “provides an equine” in exception (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 him 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 holds that to “provide an 

equine” for purposes of the exception means that the defendant owned or controlled the equine in question and 

made 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 riding 

instructor provides 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 this line-drawing is irrational. It 

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 

too much in this sphere of recreational activity. Unless the 

statute admits of no rational justification, it’s not our job to 
Nos. 17-2485, 17-2970 & 17-3289 15

second-guess how Wisconsin’s legislature has drawn these 

lines. 

In short, nothing in the statutory text or caselaw supports 

Brown’s reading of exception (3)(b). The judge was right to 

dismiss her complaint.2

AFFIRMED.

 

2 Alternatively, Brown asks us to “remand this matter ... with leave to 

allow her to file an amended 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, that’s an exception 

to the statutory immunity. But if Brown wanted to rely on the exception, 

she could and 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 Cir. 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) (explaining 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).