Court of Appeals of Indiana | Opinion 19A-CT-2739 | May 5, 2020 Page 1 of 18

ATTORNEYS FOR APPELLANTS

Duke T. Escue

Hilary Ruth Hall

Walter J. Alvarez

Walter J. Alvarez, P.C.

Crown Point, Indiana

ATTORNEY FOR APPELLEE

Robert F. Ahlgrim, Jr.

State Auto Insurance House 

Counsel

Carmel, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Kathleen Burdick and Bruce 

Burdick, Individually, and as 

Husband and Wife,

Appellants-Plaintiffs,

v.

Julie Romano,

Appellee-Defendant.

May 5, 2020

Court of Appeals Case No.

19A-CT-2739

Appeal from the

Lake Circuit Court

The Honorable

Marissa J. McDermott, Judge

Trial Court Cause No.

45C01-1310-CT-152

Kirsch, Judge.

[1] Kathleen Burdick (“Burdick”) and Julie Romano (“Romano”) were riding their 

horses in a horse arena when Burdick fell and suffered serious injuries. Burdick 

and her husband Bruce Burdick sued Romano, and the jury returned a verdict 

for Romano. Burdick raises four issues, which we consolidate and restate as:
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I. Whether the trial court abused its discretion by refusing to read 

jury instructions on negligence; 

II. Whether the trial court abused its discretion by reading a jury

instruction on inherent risks of equine activities; and

III. Whether the trial court abused its discretion by reading a jury

instruction on incurred risk.

[2] We affirm.

Facts and Procedural History

[3] Romano was renting and living on a property in Lowell, Indiana, which she 

called “Serenity Farms.” Tr. Vol. 2 at 111. On October 31, 2011, Burdick, and 

her friend, Kathy Jacobsma (“Jacobsma”), took Burdick’s horse Chip to 

Serenity Farms for boarding and training. Tr. Vol. 3 at 228-32. Burdick is an 

expert in horse training and riding. Id. at 219-20; Tr. Vol. 4 at 59, 61. Burdick 

came to Serenity Farms almost every day to train Chip in the horse arena. Tr. 

Vol. 3 at 231. The arena was specifically and exclusively designed for horse 

riding and training. Tr. Vol. 4 at 66. It was not designed or used for any other 

purpose, such as providing a venue for cattle shows. Id. 

[4] Chip was a gelded, laid back, and lazy horse. Tr. Vol. 3 at 223. Romano’s 

horse Sheza was aggressive and known for kicking other horses. Id. at 239. 

Burdick was aware that Sheza had a history of kicking other horses and had 

witnessed Sheza kick other horses. Id. Romano acknowledged that Sheza was 

aggressive, posting a picture of Sheza on Facebook and stating: “[I] love love
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love this pic! It’s a classic Sheza pic! Ears pinned back and everything. My 

pretty moody bitch! Haha! Gotta love her!” Tr. Vol. 2 at 132-33.

[5] On November 5, 2011, Burdick and Jacobsma went to Serenity Farms to ride 

horses in a pasture with Romano. Id. 241-42; Tr. Vol. 3 at 235-36. Romano 

warned Burdick and Jacobsma several times to stay away from Sheza because 

Sheza tended to back up and kick other horses. Tr. Vol. 2 at 247; Tr. Vol. 3 at 

239.

[6] Three days later, on November 8, 2011, Burdick returned to Serenity Farms 

and began to ride Chip in the arena. Tr. Vol. 3 at 240-41. Soon thereafter, 

Romano entered the arena with Sheza and set up poles, and Burdick and 

Romano began to ride their horses around the poles. Id. at 241-43. Burdick 

then demonstrated to Romano how desensitized and laid-back Chip was by 

dismounting Chip, taking off her hoodie, and placing her hoodie over Chip’s 

head. Id. at 243. Chip remained calm. Id. Burdick then got back on Chip, and 

she and Romano began riding their horses around the perimeter of the arena. 

Id. at 244. About two minutes later, Romano stopped and dismounted Sheza. 

Id. Burdick was approximately twelve feet behind Sheza and still sitting on 

Chip. Id. Burdick assumed that Romano was just going to tighten Sheza’s 

saddle, but Romano dropped Sheza’s reins and walked away from Sheza 

without tying her up. Romano headed to the southwest corner of the arena, 

where there was a barrel that she intended to retrieve to show Burdick a trick in 

which Sheza would push the barrel with her nose as Romano was riding her. 

Tr. Vol. 2 at 137; Tr. Vol. 3 at 244-45. 
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[7] Burdick testified that as Romano returned with the barrel, Sheza spooked and 

suddenly started to back up, with Sheza’s rear end coming directly towards 

Burdick and Chip. Tr. Vol. 3 at 245. Burdick testified that she “saw two feet 

hit, felt a blow under her chin, and then everything went black.” Id. Burdick 

testified that this happened so quickly that she did not have time to react or take 

evasive maneuvers. Tr. Vol. 4 at 69-70.

[8] At trial, Romano provided a different account. She testified that she walked 

Sheza to the location of the barrel and continued to hold Sheza’s reins. Tr. Vol.

2 at 142-43. Burdick was located approximately forty feet away, when Chip

executed a right turn, and then abruptly stopped, causing Burdick to lose her 

balance and fall off Chip. Id. at 143-45. 

[9] Burdick was in the hospital almost one month to recover from her injuries, 

which included a broken shoulder and a brain injury. Tr. Vol. 3 at 248; Tr. Vol. 

4 at 24-26, 70-71. Once released from the hospital, Burdick went through 

outpatient therapy for eight months. Tr. Vol. 3 at 248; Tr. Vol. 4 at 5. 

Eventually, Burdick was awarded Social Security Disability due to her injuries 

from the incident. Tr. Vol. 4 at 28.

[10] On February 24, 2014, Burdick filed an amended complaint, alleging that 

Romano was negligent, grossly negligent, and reckless in her care and control 
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of Sheza. Appellant’s App. Vol. II at 24-29.1 Romano filed two motions for 

summary judgment, and the trial court denied both motions, finding in its 

denial of Romano’s second motion for summary judgment that the “present 

case alleges a personal injury arising out of a horse-related sports activity.” 

Appellee’s Appendix Vol. 2 at 2 (emphasis added). Burdick later filed a motion in 

limine to exclude testimony that Burdick and Romano were sports participants 

engaged in a sporting event at the time of the incident or that Burdick had 

incurred any risk of injury. Appellant’s App. Vol. II at 54-66. On October 18, 

2019, the trial court denied Burdick’s motion in limine. Id. at 113.

[11] Meanwhile, on October 17, 2019, Burdick had tendered proposed final jury 

instructions, which included instructions on premises liability, duty, negligence, 

and reasonable care. Appellant’s App. Vol. II at 87-90. That same day, Burdick 

tendered the following proposed final instruction:

Horses are domestic animals. The owner of a domestic animal is 

not liable for injuries caused by the animal unless the animal had 

dangerous propensities known, or which should have been 

known, to the owner. A dangerous propensity is a propensity or 

predictable tendency of an animal to do any act which might 

endanger the safety of person or property in a given situation. 

An owner must exercise reasonable care to guard against a 

1 The amended complaint also named Joseph R. Verbeek (“Verbeek”) and Christy L. Marcotte (“Marcotte”) 

as defendants. Appellant’s App. Vol. II at 24. The amended complaint alleged that Verbeek and Marcotte 

operated Serenity Farms, a business that boarded, managed, and trained horses, and that Romano was an 

employee of Serenity Farms. Id. at 24-25. On June 22, 2017, Verbeek and Marcotte were dismissed from the 

case with prejudice. Id. at 7. 
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known dangerous propensity or a known predictable tendency, 

and to prevent injuries reasonably anticipated from them.

Id. at 91.

[12] On October 20, 2019, Romano tendered a proposed instruction that alleged 

Burdick was required to prove that Romano was reckless. Appellant’s App. Vol. 

II at 131-33. Romano also tendered other proposed final jury instructions, 

which included a modification of the “sporting event injury” pattern 

instruction, that also required Burdick to show that Romano was reckless. Id.

at 115, 117-18. On October 21, 2019, Burdick filed a proposed preliminary 

instruction that the jury needed to find that Romano knew, or should have 

known, that Romano’s own Sheza had known dangerous propensities, and a 

known tendency to kick other horses, and that Romano had failed to use 

reasonable care to protect Burdick from Sheza. Id. at 140-42.

[13] The case proceeded to jury trial on October 28, 2019. Id. at 18-23. The trial 

court refused to read Burdick’s final instructions on premises liability, 

negligence, duty, and reasonable care. Tr. Vol. 4 at 138-44, 200. The trial court 

then read Romano’s proposed instructions on incurred risk, inherent risks of

equine activities, and sporting event injuries. Id. at 199-200. The jury returned 
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a verdict in favor of Romano.2 Appellant’s App. Vol. II at 23. Final judgment 

was entered on October 31, 2019. Id. at 21. Burdick now appeals.

Discussion and Decision

[14] Burdick argues that the trial court abused its discretion when it instructed the 

jury. First, she argues the trial court should have read her proposed instructions 

on negligence to the jury. Second, she contends the trial court should not have 

read Romano’s instructions on the inherent risks of equine activities, sporting 

event injuries, and incurred risk.

[15] The manner of instructing a jury is left to the trial court’s discretion. Kimbrough 

v. Anderson, 55 N.E.3d 325, 339 (Ind. Ct. App. 2016), trans. denied. We consider

whether: (1) the instruction correctly states the law; (2) the record contains

evidence to support the instruction; and (3) the substance of the tendered 

instruction is covered by the other instructions that are given. Id. An 

instruction is properly rejected if it could mislead or confuse the jury. Miller v. 

Ryan, 706 N.E.2d 244, 248 (Ind. Ct. App. 1999), trans. denied.

[16] To determine whether sufficient evidence exists to support an instruction given 

by the trial court, we look only at the evidence most favorable to the appellee 

and any reasonable inferences to be drawn therefrom. Foddrill v. Crane, 894 

N.E.2d 1070, 1078 (Ind. Ct. App. 2008), trans. denied. When a jury is given an 

2 The jury assigned fault for Burdick’s injuries as follows: Burdick, 65%, and Romano, 35%. Appellant’s App. 

Vol. II at 23.
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incorrect instruction, we will not reverse the judgment unless the party seeking 

a new trial shows a reasonable probability that its substantial rights were 

adversely affected. Kimbrough, 55 N.E.3d at 339.

I. Negligence Instructions

[17] Burdick argues the trial court abused its discretion in refusing to read her 

instructions on negligence, duty, and reasonable care because, she claims, this is 

a simple negligence case. She likens her law suit to a “dog bite” case, where 

“the owner of a dog, with known dangerous propensities, has a duty of 

reasonable care to warn others, and to keep the dog on a leash and/or to tie the 

dog up and/or to lock the dog up.” Appellants’ Amended Br. at 12. See, e.g., Ross 

v. Lowe, 619 N.E.2d 911, 914 (Ind. 1993) (“[T]he owner of a dog is bound to 

know the natural propensities of dogs, and if these propensities are the kind 

which reasonably might be expected to cause injury, the owner must use 

reasonable care to prevent such injuries from occurring.”). Because the 

evidence shows that Romano knew that Sheza had exhibited dangerous 

propensities, i.e., Sheza’s history of kicking other horses, and that Romano

failed to exercise reasonable care by failing to tie up Sheza once she dismounted 

Sheza, Burdick claims the evidence supported instructing the jury on 

negligence. 

[18] Burdick draws our attention to two cases involving injuries caused by a horse, 

Einhorn v. Johnson, 996 N.E.2d 823 (Ind. Ct. App. 2013), trans. denied, and Heald 

v. Cox, 480 S.W.2d 107 (Mo. Ct. App. 1972), a Missouri case discussed by 
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Einhorn. In Einhorn, a volunteer at the Marshall County 4-H Fairgrounds got 

out of a vehicle to stop a runaway horse but was trampled by the horse. 

Einhorn, 996 N.E.2d at 825-26. In Heald, a party guest sued the party host for 

injuries the guest sustained when he was thrown from a horse the party host 

had provided to the guest. Heald, 480 S.W.2d at 110. Both cases stand for the 

proposition that a person who owns a horse that has known dangerous 

propensities must exercise reasonable care to prevent injuries reasonably 

anticipated from those dangerous propensities. Einhorn, 996 N.E.2d at 831; 

Heald, 480 S.W.2d at 111. Because Einhorn and Heald addressed these horsecaused injuries within the context of negligence, Burdick contends that her case 

against Romano for injuries caused by Sheza is also a negligence case, so the 

trial court abused its discretion by not instructed the jury accordingly.

[19] The trial court rejected this reasoning even before this case went to trial. Even 

though the trial court denied Romano’s second motion for summary judgment, 

it nonetheless ruled that Einhorn did not apply, stating, “The court declines to 

find Einhorn . . . applicable here. While [Burdick] relies upon that case, it does 

not involve a sports participant or spectator but, instead, a bystander attempting to 

corral a loose horse.” Appellee’s App. Vol. 2 at 6 n.2 (emphasis added). At trial, 

the trial court reaffirmed its conclusion that this was a sports-activity case. Tr. 

Vol. 2 at 74; Tr. Vol. 4 at 141.

[20] A person need not participate in a competitive sport to be engaged in a sporting 

activity. Gyuriak v. Millice, 775 N.E.2d 391, 395 (Ind. Ct. App. 2002),

disapproved on other grounds by Pfenning v. Lineman, 947 N.E.2d 392, 400-01 (Ind. 
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2011), trans. denied. Thus, activities our courts have categorized as sporting 

activities include non-competitive golf,3 a person riding a mountain bike while 

alone on a bike trail,4 and practicing karate kicks during a karate class.

5

 

[21] Burdick contends that she and Romano were not engaged in a sporting event. 

Burdick raises this argument as a separate, stand-alone issue, claiming that the 

trial court abused its instruction by reading the “sporting event pattern jury 

instruction.” Appellants’ Amended Br. at 39-44. However, the crux of Burdick’s 

argument about the sporting event instruction is that Burdick and Romano were 

not engaged in a sporting event under the terms of the equine activity statutes,

see Indiana Code chapter 34-31-5, et. seq., and specifically under the statute that 

defines “equine activity,” Indiana Code section 34-6-2-41. Therefore, we will 

address Burdick’s argument within the context of those statutes. 

[22] Indiana Code section 34-6-2-41 defines “equine activity” as follows:

(a) “Equine activity,” for purposes of IC 34-31-5, includes the 

following:

(1) Equine shows, fairs, competitions, performances, or parades 

that involve equines and any of the equine disciplines, including 

dressage, hunter and jumper horse shows, grand prix jumping, 

three (3) day events, combined training, rodeos, driving, pulling, 

3

See Pfenning v. Lineman, 947 N.E.2d 392, 406 (Ind. 2011) and Gyruiak v. Millice, 775 N.E.2d 391, 395 (Ind. 

Ct. App. 2002), disapproved on other grounds by Pfenning, 947 N.E.2d at 404), trans. denied.

4

See Hoosier Mountain Bike Ass’n, Inc. v. Kaler, 73 N.E.3d 712, 714-15 (Ind. Ct. App. 2017).

5

See Megenity v. Dunn, 68 N.E.3d 1080, 1082 (Ind. 2017).
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cutting, polo, steeplechasing, English and western performance 

riding, endurance trail riding and western games, and hunting.

(2) Equine training or teaching activities.

(3) Boarding equines.

(4) Riding, driving, inspecting, or evaluating an equine, whether 

or not monetary consideration or anything of value is exchanged.

(5) Rides, trips, hunts, or other equine activities of any type (even 

if informal or impromptu) that are sponsored by an equine 

activity sponsor.

(6) Placing or replacing horseshoes on an equine.

(b) The term does not include being a spectator at an equine 

activity.

Id. (emphasis added). Burdick argues that because this statute does not use the 

words “sports” or “sports participants,” Burdick and Romano could not have 

been engaged in a sporting activity, so the trial court should have instructed the 

jury on negligence. Appellants’ Amended Br. at 43. 

[23] We agree with Romano that the statutory definition of equine activity does not 

preclude sporting activities. The activities listed by the statute as equine 

activities is not exhaustive, evinced by the words, “‘Equine activity,’ for 

purposes of IC 34-31-5, includes the following.” Ind. Code § 34-6-2-41

(emphasis added). See Med. & Prof'l Collection Servs., Inc. v. Bush, 734 N.E.2d 
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626, 629 n.4 (Ind. Ct. App. 2000) (“We note that ‘includes,’ rather than being a 

limiting term, implies a non-exhaustive list[.]”). Moreover, the illustrative list

in the statute identifies several sports, including grand prix jumping, polo, 

western performance riding, and steeplechasing as constituting equine activities. 

Ind. Code § 34-6-2-41(a)(1). 

[24] Therefore, the trial court did not abuse its discretion in finding that Burdick and 

Romano were engaged in a sporting activity. Burdick and Romano were not 

riding their horses in a pasture or other country terrain but within an arena 

specifically and exclusively designed for horse training. Tr. Vol. 4 at 66. Both 

Burdick and Romano described their activities in the arena as tricks and 

training related to the sport of horse-back riding, where, for instance, Burdick 

testified that she was going through her training routine in the arena. Id. at 61. 

As part of the routine, Burdick was “loping” Chip as part of a cool-down after 

she completed her training routine with Chip. Id. When Burdick completed 

her training routine, she accepted Romano’s invitation to join her and Sheza to 

ride in a zig zag pattern through the poles erected in the arena. Id. at 61-62.

Burdick and Romano also engaged in other behavior to demonstrate tricks and 

training techniques associated with the sport. Id. at 56-57, 61-63. For instance, 

Burdick characterized putting her hoodie over Chip’s eyes as a trick that was a 

training technique. Id. at 56. She also testified that without proper training, a 

horse would “spook” if its head was covered by an object. Id. Burdick stated 

that demonstrating to another person how the horse would respond to training 

is part of the sport. Id. at 57. Burdick also acknowledged that when Romano 
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was going to demonstrate that Sheza could push a barrel with her nose, it was 

to show a technique that Romano had used to train Sheza. Id. Also, in 

explaining the “ground tie” that Romano used after she dismounted Sheza (in 

Burdick’s version of the events), Burdick and Romano testified that a ground tie 

is a trick or training technique where the rider dismounts the horse, drops the 

reins to the ground, and the horse stands as if the horse was tied to the ground. 

Tr. Vol. 2 at 163; Tr. Vol. 3 at 244; Tr. Vol. 4 at 58. Training a horse to stand still 

during a ground tie is important because if an emergency arises, it may be 

important for a horse to stay put. Tr. Vol. 2 at 163. Romano testified that 

ground training is “definitely part of the equine world.” Id. at 164. Finally, 

both Burdick and Romano agreed that Romano was in the process of retrieving 

a barrel to demonstrate a trick and training technique associated with the sport. 

Id. at 142-43, Tr. Vol. 3 at 244-45; Tr. Vol. 4 at 58. Thus, contrary to Burdick’s 

argument, this is not a simple “dog bite” case but instead is a sporting activity 

case. See Appellants’ Amended Br. at 12. Our courts have ruled that noncompetitive golf, practicing karate kicks, and riding a mountain bike on a trial 

are sporting activities. Accordingly, we cannot state that the trial court abused

its discretion in determining that Burdick’s injuries occurred during a sporting 

event. See Megenity v. Dunn, 68 N.E.3d 1080, 1082 (Ind. 2017); Pfenning, 947 

N.E.2d at 406; Hoosier Mountain Bike Ass’n, Inc. v. Kaler, 73 N.E.3d 712, 714-15 

(Ind. Ct. App. 2017); and Gyruiak, 775 N.E.2d at 395.

[25] Because Burdick and Romano were engaged in a sporting activity, Burdick was 

required to show that Romano was reckless, not merely negligent. Megenity, 68 
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N.E.3d at 1084-85; Pfenning, 947 N.E.2d at 404. Stated differently, a 

participant’s conduct in a sporting activity is unreasonable only if the injured 

party shows that the co-participant engaged in reckless conduct. Megenity, 68 

N.E.3d at 1084-85; Pfenning, 947 N.E.2d at 404. This burden of proof is 

supported by public policy. 

[S]trong public policy considerations favor the encouragement of 

participation in athletic activities and the discouragement of 

excessive litigation of claims by persons who suffer injuries from 

participants’ conduct. Sound policy reasons support affording 

enhanced protection against liability to co-participants in sports 

events. Athletic activity by its nature involves strenuous and 

often inexact and imprecise physical activity that may somewhat 

increase the normal risks attendant to the activities of ordinary 

life outside the sports arena, but this does not render 

unreasonable the ordinary conduct involved in such sporting 

activities.

Id. at 403.

[26] Because the undisputed evidence shows that Burdick and Romano were 

engaged in a sporting activity, the trial court did not abuse its discretion in 

refusing to instruct the jury on negligence for two reasons: First, the evidence 

did not support an instruction for negligence. See Kimbrough, 55 N.E.3d at 339. 

Second, an instruction on negligence could have confused and misled the jury 

about Burdick’s burden of proof. See Miller, 706 N.E.2d at 248. Acordingly, we

affirm the trial court’s decision to refuse Burdick’s tendered instructions on 

negligence. 
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II. Instruction on Inherent Risk of Equine Activities

[27] Burdick also argues that the trial court abused its discretion by instructing the 

jury on the inherent risks of equine activity. The instruction stated:

Inherent risks of equine activities include the following: the 

propensity of an equine to behave in ways that may result in 

injury, harm or death to persons on or around the equine. The 

unpredictability of an equine’s reaction to such things as sound, 

sudden movement, unfamiliar objects, people or other animals. 

The potential of a participant to act in a way that may contribute 

to injury to the participant or others, such as failing to maintain 

control over the animal or not acting within the participant’s 

ability.

Tr. Vol. 4 at 200.

[28] In contending that reading this instruction was an abuse of discretion, Burdick 

advances the arguments that we addressed in the previous section of this 

decision about Burdick’s claim that the trial court abused its discretion in 

refusing to instruct the jury on negligence. Accordingly, she has waived this 

claim for failure to make a cogent argument. Maggert v. Call, 817 N.E.2d 649, 

651 (Ind. Ct. App. 2004). 

[29] Waiver aside, the instruction is an accurate statement of the law as it comes 

from the statute that defines inherent risks from equine activities. See Indiana 

Code section 34-6-2-69. Although the instruction omitted language from the 

statue about inherent risks arising from hazards such as surface and subsurface 

conditions and collisions with other equines or objects, it is otherwise identical 
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to the language in the statute. This omission was appropriate to make the 

instruction conform to the facts of the case. 

[30] The instruction also omitted the word “negligent” from the statute. This 

omission was also appropriate because leaving the word “negligent” in the 

instruction would have confused the jury about Burdick’s burden of proof, that 

is, to show that Romano acted reckless. See Miller, 706 N.E.2d at 248 (an 

instruction or language in an instruction should be rejected if it will mislead or 

confuse the jury).

[31] Finally, the evidence supported giving the instruction. Burdick testified that, as 

an expert, she knew the risks associated with horse training and tricks before 

she walked into the arena. Tr. Vol. 4 at 61. She admitted that being kicked by a 

horse was a risk of the sport and testified that a horse getting “spooked” was a 

risk of the equine activities. Id. at 59. She also admitted that horseback riding 

was dangerous. Id. at 99. The evidence supported the instruction on the 

inherent risks of equine activity, and the trial court did not abuse its discretion 

in reading the instruction to the jury.

III. Instruction on Incurred Risk

[32] Burdick also contends the trial court abused its discretion in instructing the jury 

on incurred risk because the evidence did not support the instruction. The 

instruction stated:

[Romano] claims [Burdick] knew of a specific danger, 

understood the risk she faced, and voluntarily exposed herself to
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the danger. In other words, [Romano] claims [Burdick] 

voluntarily incurred the risk. To prove [Burdick] incurred the 

risk, [Romano] must prove by the greater weight of the evidence 

that [Burdick] knew and appreciated the specific risk, and

[Burdick] voluntarily accepted the risk. If you decide that 

[Burdick] incurred the risk, then that conduct is fault that you 

should assess against [Burdick].

Tr. Vol. 4 at 200.

[33] Burdick claims the evidence did not support this instruction because there was 

no evidence that she was aware that Romano might stop Sheza, dismount her, 

leave her unattended, and walk away to retrieve a barrel to demonstrate a trick. 

In support, Burdick cites Colaw v. Nicholson for the proposition that “[i]ncurred 

risk contemplates acceptance of a specific risk of which the plaintiff has actual 

knowledge.” 450 N.E.2d 1023, 1029 (Ind. Ct. App. 1983). She also points us 

to Forrest v. Gilley and Hardin v. Christy for the same principle. Forrest, 570 

N.E.2d 934, 935 (Ind. Ct. App. 1991) (person injured after falling off horse), 

trans. denied; Hardin, 462 N.E.2d 256, 263 (Ind. Ct. App. 1984) (person injured 

by horse when exercising the horse).

[34] Contrary to Burdick’s claim, the evidence supported the incurred risk 

instruction. Burdick is mistaken that the incurred risk at issue was Romano’s 

decision to dismount Sheza and leave Sheza untied and unattended. Instead, 

the risk at issue was Sheza’s tendency to kick other horses. Sometime before 

the incident, Burdick had asked Romano several times to show Burdick the 

trick where Sheza would push the barrel with her nose. Tr. Vol. 2 at 140-41. 
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Burdick was aware of Sheza’s history of kicking other horses because Romano 

told Burdick several times that Sheza was a kicker. Tr. Vol. 3 at 239; Tr. Vol. 4

at 61. Burdick also testified that before the incident she had observed Sheza act 

aggressively toward other horses and attempt to kick other horses. Tr. Vol. 3 at 

239. She also admitted that being kicked by a horse was a risk of the sport and 

conceded that as a horse expert she knew all the risks associated with horserelated sporting activities. Tr. Vol. 4 at 59, 61. Therefore, because the evidence 

supported the incurred risk instruction, the trial court did not abuse its 

discretion by reading the instruction to the jury.6

[35] Affirmed.

Bailey, J., and Mathias, J., concur.

6 Additionally, in muddled arguments related to the burden of proof, Burdick first appears to contend that 

when the trial court instructed the jury about Romano’s claim that Burdick was partly at fault for her injuries, 

the trial court misstated Romano’s burden of proof. This argument is unclear, unsupported by citation to 

authority, and Burdick does not develop the argument. Therefore, she has waived the issue for failure to 

make cogent argument. See Maggert v. Call, 817 N.E.2d 649, 651 (Ind. Ct. App. 2004). Second, Burdick 

complains that “the clear and convincing evidence burden of proof standard applicable to recklessness was 

never read to the jury – only the preponderance of evidence burden of proof standard applicable to negligence 

[] was read to the jury.” Appellants’ Amended Br. at 40-41. This argument is equally confusing, so it too is 

waived for lack of cogent argument. See Maggert, 817 N.E.2d at 651. Burdick also does not demonstrate 

how she was prejudiced by an instruction that advised the jury that Burdick was only required to prove her 

case by a preponderance of evidence instead of clear and convincing evidence.