COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00288-CV
GREG HILZ, INDIVIDUALLY AND APPELLANTS
AS NEXT FRIEND (AS FATHER
AND SOLE LEGAL GUARDIAN)
FOR CIARRA HILZ, AND CIARRA
HILZ
V.
RICHARD RIEDEL APPELLEE
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FROM THE 141ST DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
This case involves the Texas Equine Limitation of Liability Act (the Act).
See Tex. Civ. Prac. & Rem. Code Ann. §§ 87.001–.005 (West 2011). Appellants
Greg Hilz, individually and as next friend (as father and sole legal guardian) for
1
See Tex. R. App. P. 47.4.
Ciarra Hilz, and Ciarra Hilz appeal the trial court’s grant of summary judgment in
favor of Appellee Richard Riedel. We will reverse and remand.
II. BACKGROUND
Thirteen-year-old Ciarra, Greg’s daughter, and Steven, Richard’s son,
were friends. Sometime in early May 2010, Ciarra went to Steven’s house to
“hang out,” swim, and look at several horses owned by Richard. Ciarra did not
ride any of the horses that day, but she expressed an interest in doing so at a
later date.
Several weeks later, on May 30, 2010, Greg drove Ciarra to Steven’s
house so that Ciarra could ride one of Richard’s horses and then swim. Ciarra
had taken horse-riding lessons when she was younger and had ridden horses at
summer camp the previous two summers, but in Greg’s opinion, Ciarra was not
“even an intermediate-level horse rider.” In light of Ciarra’s “relative lack of
experience with horses,” and wanting to protect her from injury, Greg claims that
when he dropped Ciarra off at Steven’s house, he told Richard that he did not
want Ciarra to ride a horse outside of the roughly forty-foot by sixty-foot round
pen located on Richard’s property. Greg “believed that the pen was a controlled
environment in which the likelihood that Ciarra would be injured would be
significantly diminished.” Richard, on the other hand, claims that Greg did not
say anything about where he wanted Ciarra to ride a horse. According to
Richard, he and Greg briefly discussed Ciarra’s horse-riding experience, and
Greg said that Ciarra was excited to ride a horse. Greg then left.
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Richard rode “Logan,” a five-year-old male quarter horse, in the pen and
questioned Ciarra about her horse-riding experience, including what type of
riding she had done. Ciarra told Richard that she was “better than average” and
that she rode both “English” and “Western.” Richard then allowed Ciarra to ride
Logan in the pen for approximately thirty to forty-five minutes. According to
Richard, during this time he observed how Ciarra “sat” on Logan while he
walked, trotted, and cantered in the pen; how Ciarra controlled Logan; and how
Logan reacted to Ciarra.
Once Ciarra confirmed to Richard that she was comfortable riding Logan,
Ciarra, riding Logan, and Richard, riding “Leta,” a fifteen-year-old female quarter
horse, proceeded out of the pen and over to a pasture owned by Richard’s
neighbors, the Wisniewskis. Ciarra testified in her deposition that instead of
asking Richard if she could ride Logan in the pasture, Richard simply “assumed”
that Ciarra wanted to ride Logan in the pasture and permitted her to do so,
provided that she felt comfortable riding Logan. Richard, however, claims that
Ciarra asked him multiple times that day if she could ride in the pasture and that
he allowed her to do so only after he “assessed that Ciarra had capable riding
skills and abilities and received reassurance from Ciarra that she was
comfortable riding Logan in the pasture.”
At some point after Ciarra had ridden in the middle of the pasture for
approximately thirty minutes (galloping and trotting), Logan turned and started
running as fast as he could—or bolted—towards a tree. Ciarra tried to pull
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Logan’s head to the side to turn him away from the tree, but Logan ran Ciarra
into the tree, and she fell to the ground. In addition to numerous cuts, a tree limb
“impaled” Ciarra’s side and went into her groin, causing a “five-minute bleed,”
according to Greg, and she sustained a broken pelvis. Ciarra was taken to the
hospital, where she stayed for a week and had multiple surgeries performed.
Ciarra later opined that she thought Logan reacted like he did because he
wanted Ciarra off of him—it was hot, Logan was probably tired, and he “didn’t
want to be ridden.”
Appellants sued Richard in September 2010 to recover damages for the
injuries sustained by Ciarra, alleging claims for negligence, negligence per se,
premises liability, and violation of the recreational use statute.2 Richard filed a
traditional and no-evidence motion for summary judgment, arguing that
Appellants’ claims were barred by the Act and that several exceptions to the
Act’s limitation on liability did not apply to permit any liability. Appellants
responded and filed objections to Richard’s motion. Although the trial court
granted Appellants’ objection that Richard’s motion should not be considered a
no-evidence motion for summary judgment, the trial court—considering Richard’s
motion as a traditional motion for summary judgment—granted Richard summary
judgment on all of Appellants’ claims.
III. EXCEPTIONS TO LIMITATION ON LIABILITY
2
Appellants also sued the Wisniewskis, but those claims were later
nonsuited.
4
In their only issue, Appellants argue that the trial court erred by rendering
summary judgment for Richard because (a) the order grants relief on grounds not
presented in Richard’s motion for summary judgment, (b) a genuine issue of
material fact exists regarding Richard’s liability under two exceptions to the Act’s
limitation on liability—civil practice and remedies code sections 87.004(2) and
(4), and (c) the Act is unconstitutional as applied to Appellants for violating the
open courts guarantee of the Texas constitution. We address Appellants’
procedural argument in the context of considering the section 87.004(4)
argument, and in light of our holdings, we do not address Appellants’ open courts
issue. See Tex. R. App. P. 47.1.
In a summary judgment case, the issue on appeal is whether the movant
met the summary judgment burden by establishing that no genuine issue of
material fact exists and that the movant is entitled to judgment as a matter of law.
Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
289 S.W.3d 844, 848 (Tex. 2009). We review a summary judgment de novo.
Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).
We take as true all evidence favorable to the nonmovant, and we indulge
every reasonable inference and resolve any doubts in the nonmovant’s favor.
20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008); Provident Life &
Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). We consider the
evidence presented in the light most favorable to the nonmovant, crediting
evidence favorable to the nonmovant if reasonable jurors could and disregarding
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evidence contrary to the nonmovant unless reasonable jurors could not. Mann
Frankfort, 289 S.W.3d at 848. We must consider whether reasonable and fair-
minded jurors could differ in their conclusions in light of all of the evidence
presented. See Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex.
2006); City of Keller v. Wilson, 168 S.W.3d 802, 822–24 (Tex. 2005).
Section 87.003 of the Act states that “[e]xcept as provided by Section
87.004, any person . . . is not liable for . . . damages arising from the personal
injury or death of a participant in an equine activity . . . if the . . . injury . . . results
from the dangers or conditions that are an inherent risk of an equine activity.”
Tex. Civ. Prac. & Rem. Code Ann. § 87.003.3 Richard spends a considerable
amount of effort explaining why his liability is limited by section 87.003, but
Appellants unambiguously conceded in their summary judgment response that
Ciarra was injured while participating in an “equine activity” and that her injuries
resulted from dangers that were an “inherent risk” of an equine activity. Thus,
Appellants acknowledge that section 87.003 limits Richard’s liability. They argue,
however, that two exceptions to the Act’s limitation on liability contained in
sections 87.004(2) and (4) apply to establish Richard’s liability for Ciarra’s
3
The legislature amended the Act in 2011 to substitute the term “farm
animal” for “equine.” See Act of May 23, 2011, 82nd Leg., R.S., ch. 896, §§ 2–5,
2011 Tex. Sess. Law Serv. 2287, 2289 (West). The changes apply only to a
cause of action that accrues on or after the effective date of the statute, June 17,
2011. Id. § 6. Because Appellants’ claim accrued before the effective date of the
amended Act, we refer to the prior version of the Act.
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injuries. Under section 87.004, a person is liable for damages arising from
personal injury or death caused by a participant in an equine activity if:
(2) the person provided the equine or livestock animal and the
person did not make a reasonable and prudent effort to determine
the ability of the participant to engage safely in the equine activity or
livestock show and determine the ability of the participant to safely
manage the equine or livestock animal, taking into account the
participant’s representations of ability; [or]
....
(4) the person committed an act or omission with willful or wanton
disregard for the safety of the participant and that act or omission
caused the injury.
Id. § 87.004(2), (4).
A. Section 87.004(2)
In Loftin v. Lee, Lee fell to the ground and was injured when the horse that
she was riding through a low-lying, muddy area bolted. 341 S.W.3d 352, 354–55
(Tex. 2011). Lee argued that Loftin should have done more to determine Lee’s
ability to ride trail, pointing out that Loftin asked her no questions, but Loftin
responded that she already knew all there was to know about Lee’s ability and
that she had observed that Lee had no trouble mounting her horse. Id. at 359.
The supreme court held that the court of appeals erred by determining that a fact
issue existed regarding whether Loftin made the required ability determinations
under section 87.004(2). Id. at 359–60. It reasoned that “section 87.004(2)
applies only when the failure to make the required determination is itself the
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cause of the damage” and determined that “section 87.004(2) does not require a
formal, searching inquiry.” Id.
Compared to the determination made by Loftin of Lee’s riding ability in
Loftin, in this case, Richard’s inquiry into Ciarra’s ability to safely ride and
manage Logan would, at first glance, appear to be adequate to demonstrate
section 87.004(2)’s inapplicability—Richard spoke to Greg and Ciarra about
Ciarra’s horse-riding experience and observed Ciarra ride Logan in the pen for
approximately thirty to forty-five minutes. See id. But this assessment would be
incorrect because unlike Lee in Loftin, Greg produced additional summary
judgment evidence that raised a fact issue as to section 87.004(2)’s applicability.
First, Greg is Ciarra’s father and sole legal guardian. He stated in his
affidavit that he specifically told Richard that he did not want thirteen-year-old
Ciarra to ride a horse outside of the pen. Unlike Richard, who based his decision
to allow Ciarra to ride outside of the pen upon information that he gathered the
same day of the incident, Greg based his instruction prohibiting Ciarra from riding
outside of the pen upon his knowledge of Ciarra’s riding experience that he had
gathered over the course of years as her father. Despite Greg’s alleged express
directive, Richard (a) opted to perform an independent evaluation of Ciarra’s
ability to safely ride outside of the pen, (b) substituted his opinion of Ciarra’s
abilities for Greg’s opinion about Greg’s own daughter’s ability to safely ride
outside of the pen, and (c) countermanded Greg’s instruction to limit Ciarra’s
riding to inside of the pen. We hold that under these facts—where Richard
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purportedly acted directly contrary to Greg’s express instruction that Ciarra was
not permitted to ride outside of the pen—Appellants raised a genuine issue of
material fact regarding whether Richard made a reasonable and prudent effort to
determine Ciarra’s ability to safely ride and manage Logan. See Tex. Civ. Prac.
& Rem. Code Ann. § 87.004(2).
Richard argues that section 87.004(2) does not apply because there is no
causal nexus between Ciarra’s injuries and Richard’s alleged failure to make the
required determination of Ciarra’s ability to safely ride and manage Logan. He
contends that the Act “would be meaningless if the rule is that when a participant
sustains an injury, the determination of the participant’s riding ability was per se
unreasonable or not prudent.” We agree that section 87.004(2) does not impose
strict liability for an inadequate determination. See Loftin, 341 S.W.3d at 359
(explaining that section 87.004(2) could not be construed to impose strict liability
for an inadequate determination of a participant’s ability). But here, Ciarra would
not have sustained her injuries in the pasture had Richard not countermanded
Greg’s instruction that Ciarra was prohibited from riding outside of the pen.
Further, unlike in Loftin, where Lee did not “contend that any further inquiry by
Loftin into [Lee’s] ability to ride could have prevented the accident,” Greg argues
that Richard—who was armed with conflicting information about Ciarra’s riding
ability—should have made further inquiry with Greg to determine whether he still
opined that riding outside of the pen was inappropriate for Ciarra’s skill level.
See id.
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Taking as true all evidence favorable to Appellants and indulging every
reasonable inference and resolving any doubts in their favor, we hold that
Appellants produced summary judgment evidence raising a genuine issue of
material fact about whether Richard made a “faulty assessment” under section
87.004(2) of Ciarra’s abilities to safely ride and manage Logan. See Tex. Civ.
Prac. & Rem. Code Ann. § 87.004(2); Loftin, 341 S.W.3d at 356. We sustain this
part of Appellants’ issue.
B. Section 87.004(4)
Appellants argue under another part of their only issue that the trial court
erroneously granted Richard summary judgment on Appellants’ claim under civil
practice and remedies code section 87.004(4) because Richard did not move for
summary judgment on that ground. Richard responds that he did move for
summary judgment on Appellants’ section-87.004(4) claim and that any error in
granting summary judgment on that ground was harmless.
Unaddressed issues or claims cannot be a basis for summary judgment.
Chessher v. Sw. Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983). When a
plaintiff amends its pleadings after a defendant has moved for summary
judgment, the defendant must ordinarily file an amended motion for summary
judgment to be entitled to prevail on the entirety of the plaintiff’s case. Blancett v.
Lagniappe Ventures, Inc., 177 S.W.3d 584, 592 (Tex. App.—Houston [1st Dist.]
2005, no pet.). An amended or supplemental motion for summary judgment is
not required, however, when the amended petition essentially reiterates
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previously pleaded causes of action, when a ground asserted in a motion for
summary judgment conclusively negates a common element of the newly and
previously pleaded claims, or when the original motion is broad enough to
encompass the newly asserted claims. Rotating Servs. Indus., Inc. v. Harris, 245
S.W.3d 476, 487 (Tex. App.—Houston [1st Dist.] 2007, pet. denied).
Here, Appellants did not allege in their original petition that section
87.004(4) was applicable. They argued for the first time in their first amended
original petition that Richard was liable under section 87.004(4), and they alleged
the same claim in their second amended original petition, which they filed just
before filing their summary judgment response. Richard did not move for
summary judgment on the claims alleged by Appellants in their first amended
original petition, which had been on file, nor did Richard amend or supplement
his motion for summary judgment after Appellants filed their second amended
original petition. Instead, Richard moved for summary judgment on the claims
alleged by Appellants in their original petition. This is apparent because Richard
observed in his motion that “there have been no allegations in this suit
that . . . this accident was the result of any willful or intentional acts” and that
“[t]he only two exceptions that have been alleged are” sections 87.004(2) and
(3).4 These contentions are clearly accurate as to Appellants’ original petition,
not their amended petitions. Richard’s motion then argued in detail—with
4
Also, Richard attached Appellants’ original petition to his motion for
summary judgment.
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extensive references to his attached summary judgment evidence—why he is
entitled to summary judgment on Appellants’ claims under sections 87.004(2)
and (3).5 Richard’s motion did not include any argument as to section 87.004(4).
Accordingly, Richard did not move for summary judgment on Appellants’ claim
under section 87.004(4).
Richard argues that he did move for summary judgment on Appellants’
section 87.004(4) claim because he stated in his motion, “As to the exceptions
enumerated above, there has been no evidence presented or pleading made by
Plaintiff that exceptions (1), (4), (5), or (6) are applicable to this case.” [Emphasis
added.] While this statement may have been sufficient under a no-evidence
motion for summary judgment, the trial court granted Appellants’ objection to
Richard’s no-evidence motion for summary judgment and expressly granted
Richard’s traditional motion for summary judgment. Richard made no effort in his
motion to show that he was entitled to summary judgment on traditional grounds
on Appellants’ section-87.004(4) claim, nor was his motion broad enough to
encompass Appellants’ later-asserted claim under section 87.004(4).
Richard additionally argues that any error in granting summary judgment
on Appellants’ section-87.004(4) claim was harmless because the trial court
properly granted Richard summary judgment on Appellants’ section-87.004(2)
5
Appellants did not allege in their second amended original petition that the
exception contained in section 87.004(3) was applicable, nor do they make any
such argument on appeal.
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claim, and “the finding [that] the Act applies to [Richard] and that the reasonable
and prudent inquiry exception does not apply as a matter of law, necessarily
subsumes and precludes a finding [that] the willful and wanton exception
applies.” This argument is unpersuasive because we concluded above that the
trial court erred by granting summary judgment on Appellants’ section-87.004(2)
claim.
We hold that the trial court erred by granting Richard summary judgment
on Appellants’ section-87.004(4) claim. We sustain this part of Appellants’ only
issue. We need not address Appellants’ open courts argument.
IV. CONCLUSION
Having held that the trial court erred by granting summary judgment for
Richard on Appellants’ claims under civil practice and remedies code sections
87.004(2) and (4), we reverse the trial court’s order granting Richard summary
judgment and remand the case to the trial court.
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.
DELIVERED: June 14, 2012
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