Dullmaier v. Xanterra Parks & Resorts

FILED
United States Court of Appeals
Tenth Circuit

February 27, 2018
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

THERESE DULLMAIER, as the
Wrongful Death Representative of
Karl-Heinz Phillip Dullmaier,

Plaintiff - Appellant,
Nos. 16-8017 & 16-8049
v.

XANTERRA PARKS & RESORTS;
JOHN DOES, I-IV,

Defendants - Appellees.

Appeal from the United States District Court
for the District of Wyoming
(D.C. No. 2:14-CV-00181-SWS)

Gerard R. Bosch and Mary Alison Floyd, Law Offices of Jerry Bosch, LLC,
Wilson, Wyoming, for Plaintiff-Appellant.

Aaron P. Bradford, Bradford, Ltd, Denver, Colorado, David R. Fine, and Maxwell
N. Shaffer, Holland & Knight, LLP, Denver, Colorado, for Defendants-Appellees.

Before BRISCOE, HARTZ, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.
 A Wyoming statute provides that “[a]ny person who takes part in any sport

or recreational opportunity assumes the inherent risks in that sport or recreational

opportunity.” W YO . S TAT . A NN . § 1-1-123(a). It also states that “providers” of

such opportunities have no duty “to eliminate, alter or control the inherent risks

within” certain sport or recreational opportunities. Id. § 1-1-123(b).

In 2012, Karl-Heinz Dullmaier was killed during a guided horseback ride in

a wilderness area of Yellowstone National Park. His wife, Therese Dullmaier,

brought a wrongful-death action against the company that provided the ride. The

district court granted summary judgment to the company, and Ms. Dullmaier

appeals.

The main question before us is whether Mr. Dullmaier’s fatal injuries

stemmed from risks that are inherent in the particular sport or recreational activity

in which he elected to participate—that is, a guided horseback trail ride in a

wilderness area. We conclude that his injuries did stem from such risks. We also

determine that Ms. Dullmaier’s other state-law claims—for negligent

misrepresentation and nondisclosure—have no merit. Lastly, we reject Ms.

Dullmaier’s challenge to the district court’s award of costs. We affirm.

I

Xanterra Parks & Resorts, Inc. (“Xanterra”) is a Delaware corporation that

provides guided horseback rides in Yellowstone National Park. Karl-Heinz

Dullmaier was a German citizen who visited Yellowstone in 2012. This case

2
arose after Mr. Dullmaier was killed during one of Xanterra’s tours.

A

The Dullmaiers—along with Karen Donohoo, the family’s au

pair—traveled to Wyoming for a family vacation in July 2012. On the morning of

July 30, Mr. Dullmaier and Ms. Donohoo arrived at Roosevelt Corrals for a one-

hour horseback ride through Yellowstone National Park. They were given an

acknowledgment-of-risk form, which stated that “[h]orses can act unpredictably,”

and that “[c]ertain risks are normally involved in riding,” such as “collisions or

falls.” Aplt.’s App., Vol. 2, at 307. At the bottom of the form, a section stated

that any rider who signed would “assume full responsibility for [him or

her]self, . . . for bodily injury [or] death.” Id. Mr. Dullmaier and Ms. Donohoo

both signed the form.

Each one-hour ride followed the same path, beginning and ending at the

Roosevelt Corrals and tracing a long loop through a wooded wilderness area.

Riders started out on a dirt road and crossed into a meadow. From there, they

rode over a small hill and eventually passed through an area known as Pleasant

Valley. A creek, spanned by a narrow bridge, runs through Pleasant Valley.

Riders must cross the bridge in a single-file line.

Three wranglers were assigned to guide the guests who had signed up for

the one-hour ride. Jeremy Wilson, the lead wrangler, was to ride at the front of

the group. Erin Flynn and Sarah Soltys, the outrider wranglers, were assigned to

3
stay alongside the other riders. Outrider wranglers “kind of just watch over half

the line,” and “mov[e] up [and] down” the line to make sure that the ride goes

smoothly. Id. at 413. Ms. Soltys was assigned to the front half of the group,

while Ms. Flynn took responsibility for the back half.

The ride began normally. There were twenty riders, including a few

children. Mr. Dullmaier, riding a horse named Duke, was at the end of the line of

riders. Ms. Donohoo was immediately in front of Mr. Dullmaier and Duke.

The riders eventually entered Pleasant Valley. Mr. Wilson was at the front

of the line, looking back over the other riders. As they got close to the bridge,

Mr. Wilson’s horse, Bugs, stopped short. Mr. Wilson saw nothing that was

blocking the path, so he kicked Bugs to keep moving. Bugs took a few steps

forward. Suddenly, a few ducks flew out from underneath the bridge. The ducks

surprised Bugs, who reared back, pivoted, and threw Mr. Wilson to the ground.

Bugs then turned and took off in the opposite direction, running away from the

bridge and back down the line of horses.

The commotion spooked Lakota, another horse in the line. He backed away

from the bridge, then turned and began to run after Bugs. Still on the ground, Mr.

Wilson saw that a child was still riding Lakota. He immediately started chasing

the horse, “screaming [for the child to] ‘[p]ull back on the reins’” and slow

Lakota down. Id. at 409. Lakota sped up. The child slid to the side and fell from

the saddle, landing awkwardly on his head and shoulder. Worried that the boy

4
was seriously hurt, Mr. Wilson ran towards him and radioed back to the corrals

for medical aid.

The line of horses started to break apart. From her position at the back of

the line, Ms. Flynn could see that the other horses had “fanned out,” probably to

“get out of the way” when “Bugs and Lakota [had come] barreling through them.”

Id. at 397. Ms. Flynn later testified that the other horses probably did not see the

ducks, “but they saw the other horses were scared, which made them nervous,

too.” Id. at 398. As she put it, “[h]orses do not like to be apart,”—when horses

see another horse “take[] off running,” the other horses usually “want to follow.”

Id. Within a few seconds, “[e]very single horse [had] turned” and started

galloping away from the bridge toward the trail. Id. at 391.

Ms. Flynn and Ms. Soltys tried to regain control of the line. Their aim, Ms.

Flynn said, was to “get control of [each] horse, unless somebody ha[d] come off

of that horse.” Id. Ms. Flynn later testified that they were less worried about

losing riderless horses—those horses eventually make their way back to the corral

on their own—than about the safety of each person riding the spooked horses. As

she put it, runaway horses “are terrified.” Id. at 399. “They just do not stop.” Id.

One of those horses was Mr. Dullmaier’s horse, Duke. Id. As the line

broke apart, Duke ran back down the trail towards the hill. Ms. Flynn guessed

that Duke was about 100 yards ahead of her, galloping at full speed toward the

small hill on the other side of the valley. This alarmed Ms. Flynn. She knew that

5
“it’s very hard to sit” in a saddle when riding downhill at a fast pace, and that

“even the most experienced rider has problems coming downhill at a gallop.” Id.

at 391, 398.

Ms. Flynn felt that she needed to “do everything [she] could to help [Mr.

Dullmaier] stop” before Duke reached the hill, since “Duke wasn’t going to stop”

unless she forced him. Id. So, she tried “to get around [Duke], come out in front

of him, [and] form a T.” Id. This would force Duke to slow down, giving Ms.

Flynn a chance to grab his reins and redirect him until he stopped running. To

reach Duke at the best angle—and to avoid scaring him, which might make him

speed up—she rode after him in a wide curve, rather than chasing him from

behind.

Riding hard, she eventually caught up with Duke and Mr. Dullmaier. She

called out to Mr. Dullmaier, telling him to “[p]ull as hard as [he could] back on

[his] reins.” Id. at 391. She also yelled to Duke, who knows his name and

responds to voice commands, trying to calm him. Id.

Neither tactic worked. Ms. Flynn was about twenty yards away from Duke

when he crested the hill and began galloping down the other side. Mr. Dullmaier

“started bouncing.” Id. at 391. He eventually lost his grip on the saddle horn,

slid to the side of the saddle, and fell to the ground. Ms. Flynn stopped her horse

and immediately radioed for medical help. When she made it over to Mr.

Dullmaier, he was unresponsive and bleeding from his ears, nose, and mouth. Mr.

6
Dullmaier was eventually airlifted to a hospital in Billings, Montana, where he

died from his injuries.

B

Therese Dullmaier filed a complaint in Wyoming state court on July 29,

2014. She brought four state-law tort claims against Xanterra: (1) negligent

misrepresentation; (2) nondisclosure; (3) negligent supervision and training; and

(4) negligence. Xanterra removed the suit to the U.S. District Court for the

District of Wyoming.

Thereafter, Xanterra moved for summary judgment. In support of its

motion, Xanterra first argued that Wyoming law does not recognize a freestanding

claim for negligent nondisclosure. As to the remaining three claims, Xanterra

argued that any risks associated with spooked, runaway horses were inherent in

the activity of horseback riding. And, pursuant to the Wyoming Recreation

Safety Act (“WRSA”), W YO . S TAT . § 1-1-121, it owed no duty to protect Mr.

Dullmaier from the inherent risks of horseback riding. The district court agreed,

granting Xanterra’s summary-judgment motion on all of Ms. Dullmaier’s claims.

Xanterra submitted a bill of costs on February 12, 2016. Ms. Dullmaier

objected to the request. The clerk of court awarded Xanterra its costs and Ms.

Dullmaier moved to review that award. In a six-page order, the district found that

the costs were properly awarded.

7
 Ms. Dullmaier now appeals the district court’s summary-judgment order

and its cost award.

II

We review a district court’s summary-judgment order de novo. See, e.g.,

Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1167 (10th Cir. 2007).

Summary judgment is appropriate when “the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” F ED . R. C IV . P. 56(a).

Thus, not every factual dispute “will properly preclude the entry of

summary judgment”; the dispute must be genuine and relate to material issues of

fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “As to

materiality, the substantive law will identify which facts are material.” Id. When

applying this standard, we “view the evidence and draw reasonable inferences

therefrom in the light most favorable to the nonmoving party.” Simms v.

Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d

1321, 1326 (10th Cir. 1999).

This is a diversity case, so we apply the substantive law of the forum state,

Wyoming. See, e.g., Wood v. Eli Lilly & Co., 38 F.3d 510, 513 (10th Cir. 1994)

(“[W]e must apply the most recent statement of state law by the state’s highest

court.”); see also Stickley v. State Farm Mut. Auto. Ins. Co., 505 F.3d 1070, 1077

(10th Cir. 2007) (“The decision of an intermediate appellate state court ‘is a

8
datum for ascertaining state law which is not to be disregarded by a federal court

unless it is convinced by other persuasive data that the highest court of the state

would decide otherwise.’” (quoting West v. Am. Tel. & Tel. Co., 311 U.S. 223,

237 (1940))). “[W]hen a panel of this Court has rendered a decision interpreting

state law, that interpretation is binding on district courts in this circuit, and on

subsequent panels of this Court, unless an intervening decision of the state’s

highest court has resolved the issue.” Kokins v. Teleflex, Inc., 621 F.3d 1290,

1295 (10th Cir. 2010) (quoting Wankier v. Crown Equip. Corp., 353 F.3d 862,

866 (10th Cir. 2003)).

A

We first address Ms. Dullmaier’s claim for negligent misrepresentation. In

that claim, she alleged that Xanterra “solicited and promoted their horseback

rides,” and “should have known that members of the general public would rely on

the information provided” in choosing to go on one of the rides. Aplt.’s App.,

Vol. 1, at 24. She also alleged that she and Mr. Dullmaier “relied on [Xanterra’s]

information that the horses were trail broke” and that guides “were nearby [and]

prepared to help.” Id. Mr. Dullmaier’s death, she averred, was “a direct result of

these misrepresentations.” Id.

Wyoming has adopted the negligent-misrepresentation standard laid out in

the R ESTATEMENT (S ECOND ) OF T ORTS § 552. That standard requires a plaintiff to

show (1) “[f]alse information supplied in the course of one’s business for the

9
guidance of others in their business,” (2) “failure to exercise reasonable care in

obtaining or relating the information,” and (3) “pecuniary loss resulting from

justifiable reliance thereon.” Verschoor v. Mountain W. Farm Bureau Mut. Ins.

Co., 907 P.2d 1293, 1299 (Wyo. 1995) (quoting R ESTATEMENT (S ECOND ) OF

T ORTS § 552 (1965)).

The district court found that Ms. Dullmaier failed to satisfy these elements.

In particular, it held that Ms. Dullmaier had never “allege[d] that Mr. Dullmaier

relied upon the representations in his business or in a commercial transaction as

required in the first element.” Aplt.’s App., Vol. 5, at 1171.

This is the correct result. The Dullmaiers visited Yellowstone as part of a

family vacation, not a business trip. Nothing in the record suggests that Mr.

Dullmaier sought to do business with Xanterra. Nor does anything imply that the

horseback-riding information that Xanterra provided to Mr. Dullmaier was

somehow related to his commercial interests. Under the standard set out in § 552,

Ms. Dullmaier has no claim for negligent misrepresentation. See, e.g., Meyer v.

Conlon, 162 F.3d 1264, 1272 (10th Cir. 1998) (concluding that no negligent-

misrepresentation claim could be established when the defendants’

representations were not made for “the guidance of [the plaintiff] in his

business”).

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 Ms. Dullmaier argues that we should apply § 311 from the R ESTATEMENT

(S ECOND ) OF T ORTS , which sets out the tort for negligent misrepresentation

involving physical harm. See R ESTATEMENT (S ECOND ) OF T ORTS § 311 (1965).

Ms. Dullmaier argues that § 311 is more appropriate, since it “finds particular

application where it is part of the actor’s business or profession to give

information upon which the safety of the recipient or a third person depends.” Id.

cmt. b.

But this argument has no merit. Wyoming courts have never recognized a

generic negligent-misrepresentation tort like the one set out in § 311. See Willis

v. Bender, 596 F.3d 1244, 1259 n.9 (10th Cir. 2010) (noting that Wyoming “has

not adopted th[e] definition for the generic tort of negligent misrepresentation”

set out in § 311 of the R ESTATEMENT (S ECOND ) OF T ORTS ); Corsi v. Jensen Farm,

No. 2:12-CV-052-SWS, 2013 WL 11330880, at *3 n.5 (D. Wyo. Oct. 11, 2013)

(unpublished) (“Wyoming has not adopted [§ 311’s] definition for the generic tort

of negligent misrepresentation.”).

B

Ms. Dullmaier also appeals from the district court’s summary-judgment

decision on her nondisclosure claim. In that claim, she alleged that Xanterra

“failed to exercise reasonable care in insuring [sic] that [Mr. Dullmaier] was

aware of the risks, hazards, and dangers associated with horseback riding.”

11
Aplt.’s App., Vol. 1, at 25.

But this claim, which sounds in negligence, is not cognizable under

Wyoming law. Wyoming does not recognize a tort for negligent nondisclosure.

See, e.g., Claman v. Popp, 279 P.3d 1003, 1015 n.1 (Wyo. 2012) (“Wyoming does

not recognize a claim for negligent nondisclosure . . . .”). Therefore, Ms.

Dullmaier’s nondisclosure claim was properly dismissed.

C

1

We now turn to Ms. Dullmaier’s remaining claim for negligence. 1 The

relevant law centers around the WRSA, W YO . S TAT . A NN . § 1-1-122, which

applies to negligence claims involving sport or recreational opportunities, such as

horseback riding. “In order to prevail on any negligence action, a plaintiff must

first establish that the defendant owed him or her a duty of care.” Cooperman v.

David, 214 F.3d 1162, 1165 (10th Cir. 2000). “To protect providers of

1
In her complaint, Ms. Dullmaier pleaded a separate claim for
negligent supervision and training. In ruling on summary judgment, the district
court determined that Wyoming treats such “claims as a form of negligence
claim,” and accordingly “consider[ed] [Ms. Dullmaier’s] negligence and negligent
training and supervision claims together.” Aplt.’s App., Vol. 5, at 1172. On
appeal, Ms. Dullmaier does not contend that the district court erred in this
respect, nor does she pursue a separate and discrete challenge with respect to her
negligent supervision and training claims. Therefore, we address here only Ms.
Dullmaier’s challenge with respect to her negligence claim and deem any separate
argument with respect to her negligent supervision and training claim to be
waived. See, e.g., Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007).

12
recreational sports and activities from liability for alpine skiing, equine activities,

and other outdoor pursuits in the state, the Wyoming legislature limited their duty

of care by enacting the [WRSA].” Dunbar v. Jackson Hole Mountain Resort

Corp., 392 F.3d 1145, 1148 (10th Cir. 2004); see Carden v. Kelly, 175 F. Supp.

2d 1318, 1328 (D. Wyo. 2001) (“The [WRSA] limits the duty that a provider of a

recreational activity owes to a participant.”). Two provisions of that statute are

important for our purposes.

The first provision is section 1-1-123 (“Assumption of the Risk”), which

states that a person “who takes part in any sport or recreational opportunity

assumes the inherent risks in that sport or recreational opportunity,” and that “[a]

provider of any sport or recreational opportunity is not required to eliminate, alter

or control the inherent risks within the particular sport or recreational

opportunity.” W YO . S TAT . A NN . § 1-1-123(a)–(b).

The second provision is section 1-1-122, which defines “inherent risk” as

“those dangers or conditions which are characteristic of, intrinsic to, or an

integral part of any sport or recreational opportunity.” Id. § 1-1-122(a)(i). That

provision also defines “provider” in pertinent part to mean “any person . . . [who]

offers or conducts a sport or recreational opportunity.” Id. § 1-1-122(a)(ii). The

term “sport or recreational opportunity” encompasses “horseback riding and any

13
other equine activity,” including “[d]ay use rental riding, [or] riding associated

with a dude ranch.” Id. § 1-1-122(a)(iii), (a)(iv)(G).

The Wyoming legislature amended the WRSA in 1996 to clarify the

meaning of “inherent risk.” See 1996 Wyo. Sess. Laws ch. 78 (S.F. 65). But the

legislature at that time “did not define the meaning of ‘inherent risk’ more

precisely through careful iteration.” Sapone v. Grand Targhee, 308 F.3d 1096,

1101 (10th Cir. 2002). Instead, it “settled on an approach that leaves to the courts

the task of defining what is and what is not an inherent risk within the meaning of

the statute.” Id. And, in undertaking this definitional task, we must acknowledge

that “[w]hat is inherent to a sport or activity . . . is far from self-evident.”

Dunbar, 392 F.3d at 1148.

With this background in mind, we ask whether Mr. Dullmaier’s death was

the result of an “inherent risk” of the guided trail ride through a wilderness area

that Xanterra provided. If it was, then Xanterra owed Mr. Dullmaier no duty to

“eliminate, alter or control” that risk. W YO . S TAT . A NN . § 1-1-123.

2

“The circumstances of each case control whether the question of inherent

risk is to be decided by the court or by a jury.” Kovnat v. Xanterra Parks &

Resorts, 770 F.3d 949, 955 (10th Cir. 2014). “The level of factual specificity

required to establish an inherent risk will often but not always preclude summary

14
judgment on the duty question.” Creel v. L & L, Inc., 287 P.3d 729, 737 (Wyo.

2012); see Cooperman, 214 F.3d at 1166 (noting that the Wyoming Supreme

Court “did concede, however, that in certain instances where no material

questions of fact exist, the district court may decide as a matter of law that a

provider does not owe a duty to the participant under the Safety Act”); see also

Addakai v. Witt, 31 P.3d 70, 75 (Wyo. 2001) (“In close cases, we have expressed

a preference for allowing jurors to decide just what is or is not a risk inherent to a

particular recreational activity[.]”).

As for the requisite level of factual specificity, we opined in Cooperman:

“When attempting to determine whether a risk is inherent to a sport, we can not

look at the risk in a vacuum, apart from the factual setting to which the rider was

exposed. And, we must evaluate the risk at the greatest level of specificity

permitted by the factual record.” 214 F.3d at 1167; accord Madsen v. Wyo. River

Trips, Inc., 31 F. Supp. 2d 1321, 1328 (D. Wyo. 1999) (construing the WRSA);

see also Creel, 287 P.3d at 735 (stating that the WRSA’s inherent-risk analysis

requires courts to “consider[] the specific facts surrounding the claimed injury”).

More specifically, we seek to identify with the greatest degree of specificity

possible the risks that caused the consumer’s alleged harm and, then, inquire

whether those risks were inherent in the sport or recreational opportunity in which

the consumer elected to participate.

15
 A careful examination of three of our cases decided in the horseback-riding

context illuminates this fact-specific inquiry and underscores helpful guideposts

for our resolution of this case:

Cooperman: We begin with Cooperman. That case involved a guided trail

ride in Pinedale, Wyoming. The plaintiff “felt his saddle begin to slide” “around

the belly of the horse.” 214 F.3d at 1163. The plaintiff slid with the saddle, fell

to the ground, and hurt his shoulder. Id. Before the saddle slipped, the plaintiff

“had not had any problems with his horse or his saddle, and had not sensed that

anything was wrong with the saddle.” Id. The plaintiff sued the provider in

district court, and the court granted summary judgment to the provider. Id. at

1163–64.

We affirmed. We pointed out that “[h]orseback riding undoubtedly carries

some inherent risk that the rider will fall off the horse and get injured.” Id. at

1167. For example, “[a] horse . . . stumbl[ing] on an uneven path, or rear[ing], or

simply begin[ning] to gallop for no apparent reason . . . clearly would qualify as

inherent risks of horseback riding.” Id. But “[s]imply because some risks are

inherent in horseback riding . . . does not mean that all risks of falling from a

horse are necessarily inherent.” Id.

The evidence revealed that Mr. Cooperman fell because “the saddle

slipped.” Id. at 1168. And we had no doubt based on the record that “a slipping

16
saddle, with no other facts provided, is an inherent risk of horseback riding.” Id.

But the facts presented to us obliged us to inquire at “a greater degree of

specificity than simply stating that the saddle slipped.” Id. In this regard, we

recognized that “[w]hile slipping saddles under certain fact specific situations

may be inherent, under other facts it may not be inherent.” Id. at 1167 n.5. Here,

the evidence indicated that Mr. Cooperman’s saddle was “loosely cinched” and

that this was a risk to which Mr. Cooperman was exposed along with the risk of

saddle slippage. Id. at 1168. Thus, we held that, “[f]or purposes of summary

judgment, then, the issue is whether a slipping saddle that is loosely cinched is an

inherent risk of horseback riding.” Id.

We concluded that it was. Saddles must be cinched when placing them on

horses, and “because cinching a saddle is done by hand, and not with scientific

precision, a provider must make a judgment call as to how tight or loose to cinch

the saddle.” Id. Consequently, we reasoned that “[t]his imprecision in the

cinching of the saddle” is inherent in “the sport of horseback riding,” which

involves saddles. Id. More specifically, we stated, “When the cinching of a

saddle can be too tight or too loose, and the cinching is not done with scientific

precision, it is inherent in the sport that the provider at times will cinch too

loosely or too tightly.” Id.

17
 Thus, there was a causal connection between Mr. Cooperman’s harm and an

inherent risk of the sport or recreational opportunity that he participated in—a

guided horseback ride through a wilderness area. Put another way, there was a

causal connection between his harm and the inherent risk of slipping in a saddle

that was loosely cinched. This signaled the ultimate demise of Mr. Cooperman’s

negligence claim under the WRSA because the provider had no duty to

ameliorate, mitigate, or eliminate (i.e., “to eliminate, alter or control”) this risk.

Before sounding the death knell on Mr. Cooperman’s claim, however, it is

notable that we acknowledged that the fact-specific inquiry in some instances may

result in us discerning—at a greater level of specificity—atypical or non-inherent

causal factors that may preclude summary judgment. In this regard, we

recognized the need to inquire whether Mr. Cooperman was able to come forward

with “some evidence on summary judgment that would raise a question of fact

that the loosely cinched saddle was caused, not by an inherent risk, but rather by a

risk that was atypical, uncharacteristic, not intrinsic to, and thus not inherent in,

the recreational activity of horseback riding.” Id. at 1169. We declined to opine

“as to what factual proof would take the risk of a slipping saddle outside the

realm of an inherent risk,” finding it sufficient to conclude that Mr. Cooperman

was not able to furnish any such proof. Id.

18
 Kovnat: Litigating over a very similar incident that occurred over a decade

after Cooperman, the plaintiff in Kovnat sought to provide such proof of atypical

risks to which the provider had exposed her—extending beyond the risks inherent

in horseback-riding—that pertained to the cinching of a saddle and uneven

stirrups. 770 F.3d at 958. In the words of Cooperman, the plaintiff endeavored

to provide proof that “would take the risk of a slipping saddle outside the realm of

an inherent risk.” Cooperman, 214 F.3d at 1169. Applying Cooperman’s

teachings, we affirmed the district court’s summary-judgment order in favor of

the provider with respect to the cinching of the saddle but reversed with respect to

the uneven stirrups. See id. at 958–60.

The negligence lawsuit in Kovnat stemmed from injuries that the plaintiff

sustained while participating in an evening horseback trail ride. See id. at

951–52. Her saddle slipped and moved until its seat was underneath the horse,

and the plaintiff moved with the saddle; as a consequence, “she struck her back

on the ground” and suffered fractures to several vertebrae. Id. at 952. The

district court framed the relevant issue for summary-judgment disposition as

whether a saddle slipping due to uneven stirrups and/or an incorrectly-secured

cinch constituted an inherent risk of horseback riding, and answered the question

in the affirmative. See id. at 958. The district court concluded therefore that the

provider had no duty under the WRSA to mitigate, ameliorate, or eliminate these

19
risks and was entitled to judgment against the plaintiff’s negligence claims. See

id. We affirmed the district court’s judgment regarding the cinch but reversed as

to the uneven stirrups, holding that “genuine issues of material fact exist

regarding the issue.” Id.

Unsurprisingly, in the aftermath of Cooperman, the plaintiff did not argue

that a loose cinch in itself was an atypical risk of the kind of horseback-riding

opportunity in which she participated; instead, the plaintiff alleged that the

provider’s negligent conduct in failing “to check the cinch prior to her leaving the

corral . . . exposed [her] to the risk of riding with an unusually loose saddle

cinch.” Id. at 959 (emphasis added). We rejected this contention, concluding that

“the evidence in the record on appeal . . . indicates that [the provider’s]

employees repeatedly checked the cinch tension on her saddle multiple times

before she left the corral.” Id. Having determined that the plaintiff’s purported

proof of an atypical risk associated with cinching was without substance, we

concluded that plaintiff was in essentially the same place as the Cooperman

plaintiff. Specifically, “we agree[ed] with the district court that any risks

associated with the cinching of [the plaintiff’s] saddle were inherent in the sport

of horseback riding,” and thus affirmed the court’s judgment under the WRSA.

Id.

20
 We reached the opposite conclusion, however, with respect to the uneven

stirrups, concluding under the evidence that the plaintiff “would have been

exposed to an atypical risk, rather than a risk inherent in the sport of horseback

riding.” Id. at 960. In doing so, we acknowledged that “the district court was

correct in noting that the evidence in the record establishes that, like saddle

cinching, the task of ensuring that a rider’s stirrups are even is a matter of human

judgment that is not performed ‘with scientific precision.’” Id. (quoting

Cooperman, 214 F.3d at 1168)). But we concluded that a reasonable jury could

find that this was not a situation (like Cooperman) where the plaintiff’s injuries

stemmed from unwanted but inevitable imprecision by human beings in adjusting

the length of stirrups—a risk that was inherent to horseback riding. See id.

(noting “that is not what happened in this case”).

Instead, the record indicated that “after [the plaintiff] was assisted by [the

provider’s] personnel in mounting her horse, her stirrups were noticeably uneven”

and “she immediately said to her husband, loud enough for [the provider’s]

wranglers to hear” that her legs hung unevenly and she was uncomfortable. Id.

Further, the evidence showed that “uneven stirrups are visually noticeable and

necessarily warrant corrective action.” Id. Thus, we reasoned that

a jury could reasonably find that the wrangler who overheard and
commented on [the plaintiff’s] concerns about her stirrups [i.e.,
saying that they were “fine”] was not in a position to see both of
[the plaintiff’s] stirrups and otherwise made no attempt to ensure

21
 that the stirrups were even, or was aware of the unevenness of
[the plaintiff’s] stirrups but made a choice not to adjust them.

Id. “We conclude[d] that, under either of these factual scenarios, [the plaintiff]

would have been exposed to an atypical risk, rather than a risk inherent in the

sport of horseback riding. In turn, [the provider] would not be immune from

liability under the WRSA.” Id.

Sapone: Though the legal steps of our analysis were somewhat less

explicit, we followed a similar path in Sapone, in concluding that the plaintiffs

had raised triable issues of fact regarding the existence of a causal connection

between atypical or non-inherent risks and the harm at issue. That case involved

a young girl (apparently six years old) who was injured after falling from a horse

during a private horseback-riding lesson for the girl and her young brother. 308

F.3d at 1098. Despite the lesson being for young children, the instructor had

placed the children on adult-size horses, given them no instructions on the

handling of the horses, and taken the children on an advanced trail instead of

confining the lesson to a fenced-in corral. Id. We succinctly described the

incident contributing to the girl’s injuries:

During their descent down the mountain trail, [the girl’s] horse
suddenly “bolted” for the stables, and [the girl] fell from her
saddle. With her foot stuck in the stirrup, she landed on her head
and was dragged along the ground for at least several paces
before she could wrench her foot free and roll to her back. In the
process, her head was struck by the horse’s hoof.

22
Id. The girl’s parents sued the company that provided the lesson. The district

court granted the provider’s summary-judgment motion, finding that “falling from

a ‘bolting’ horse is an inherent risk of horseback riding.” Id. at 1100.

We reversed, holding that “genuine questions of material fact remain which

are relevant to the question of whether the plaintiff’s injury was caused by an

inherent risk.” Id. at 1098. We did not question the obvious fact that the girl

“fell from the horse.” Id. at 1103. And we recognized that “it is an inherent risk

that a horse might bolt”; however, citing Cooperman, we underscored that this

was “not the specific question before us.” Id. at 1104. “[W]e disagree[d] with

the district court’s conclusion that falling from this particular bolting horse is an

inherent risk of horseback riding.” Id. (emphasis added). In adopting this

position, we progressed to a greater level of factual specificity, as Cooperman had

instructed, in discerning the risks at issue. In particular, we seemed to take note

that the particular sport or recreational opportunity, in which the parents elected

to have their child participate, was not an adult horseback-riding trail tour, but

rather a private children’s horseback-riding lesson. Specifically, we reasoned that

there were genuine issues of material fact regarding whether the child’s fall from

a horse in this children’s-lesson context, stemmed in significant part from atypical

or non-inherent risks to which the provider exposed the child. See id. (“[The

child] presented evidence to show that the injury may have been caused not by an

23
inherent risk, but rather ‘by a risk that was atypical, uncharacteristic, [and] not

intrinsic to the recreational activity of horseback riding.’” (quoting Cooperman,

214 F.3d at 1169)); see also Dunbar, 392 F.3d at 1149–50 ( “[I]n Sapone, we

concluded that a child sustaining injuries when falling from the saddle during a

trail-riding lesson was not an inherent risk when there was evidence that the horse

was too large, that the instructions were inadequate, that no headgear was

provided, and that the route was too dangerous.”).

We reasoned that in a children’s ride, a provider has certain duties toward

the participants. Such duties include “provid[ing] the children horseback riding

instructions,” “providing adequate headgear,” and “giving the lesson in [a]

practice corral instead of on an advanced trail ride.” Id. at 1104. We held that

the provider’s failure to carry out these duties engendered genuine issues of

material fact regarding whether it “violat[ed] a duty separate and distinct from

those [duties] embedded in the inherent risks of horseback riding.” Id. (emphasis

added). In other words, there were genuine issues of material fact regarding

whether the provider’s conduct exposed the child to risks beyond the inherent

risks associated with a bolting horse. We put it this way: “[W]hen we frame the

question with the requisite specificity, we also conclude that a reasonable jury

might conclude that [the child’s] injuries were the result of negligence that is not

characteristic of, intrinsic to, or an integral part horseback riding.” Id. at 1105.

24
Accordingly, we reversed the district court, holding that “material questions of

disputed facts remain to be decided by a jury.” Id.

***

These three horseback-riding cases underscore three key guideposts that are

embedded in the WRSA caselaw of our circuit and the Wyoming Supreme Court

that are helpful to our resolution of this appeal:

First: We inquire into the nature of the risk at “the greatest level of

specificity permitted by the factual record.” Cooperman, 214 F.3d at 1167. That

is, we seek to determine the specific risks that the consumer was exposed to in

participating in the provider’s sport or recreational opportunity.

Second: We seek to discern whether the specific risks—associated with the

consumer’s injury—fall within the ambit of risks that are inherent in the sport or

recreational opportunity. In doing so, we remain cognizant that

Some risks may occur from the choices a recreation provider
makes on behalf of the participant and from the conditions in
which the recreational opportunity is provided. Thus, atypical or
uncharacteristic risks can arise even in those specific sports the
Wyoming legislature clearly intended to exempt from liability for
inherent risks.

Dunbar, 392 F.3d at 1149; accord Roberts v. Jackson Hole Mountain Resort

Corp., No. 16-CV-24-R, 2017 WL 5247912, at *4 (D. Wyo. Jan. 19, 2017)

(unpublished). Thus, as we saw in Kovnat and Sapone, a provider may deliver the

25
opportunity in a manner that “increase[s] the inherent risks of the sport,” Creel,

287 P.3d at 739, thereby exposing the consumer to atypical, non-inherent risks.

See Kovnat, 770 F.3d at 960; Sapone, 308 F.3d at 1104.

Third: In the endeavor to discern the universe of inherent risks of a sport or

recreational opportunity—as well as those risks that fall “outside of the realm of

an inherent risk,” Cooperman, 214 F.3d at 1169, i.e., atypical risks—a critical

step may be defining with precision the opportunity at issue. As Sapone

illustrates, the unique nature of the opportunity—there, a private horseback-riding

lesson involving only young children—may impact our assessment of what risks

are properly deemed atypical. See 308 F.3d at 1104; see Dunbar, 392 F.3d at

1149, 1151–52 (concluding that “genuine issues of material fact exist[]”

concerning the inherent-risk question and noting that “what sport or activity

characterizes [the plaintiff’s] behavior is a matter of considerable dispute”). We

may find guidance in discerning the precise nature of the sport or recreational

opportunity at issue by focusing, not only on the choices of the provider, but also

the choices of the consumer. See Dunbar, 392 F.3d at 1149 (“To determine what

risk is inherent to [the plaintiff’s] activity, we must go beyond a broad

characterization and inquire into the specific circumstances of both her actions

and those of the recreation provider.”). 2

2
Dunbar involved an alpine skier—the plaintiff—who was injured
(continued...)

26
 3

2
(...continued)
when she fell twelve feet into a snowboard half-pipe. 392 F.3d at 1146. At the
time of the fall, she was trying to leave a specially designated terrain park
“designed for advanced skiers and snowboarders who choose to recreate in a very
challenging risk-filled environment.” Id. The plaintiff was a “self-described
intermediate skier,” and “[t]here [was] no suggestion . . . that [she] intended to
jump any of the terrain jumps or intended to try her hand at stunts as a skier in a
snowboard half-pipe.” Id. at 1146–47. The plaintiff sued the Wyoming ski resort
for negligence. Id. The district court granted summary judgment for the resort
pursuant to the WRSA, finding that her fall was an inherent risk of alpine skiing
in the terrain part. Id. We reversed.

In doing so, we observed a key error in the district court’s analytical focus:

Although the district court emphasized the choices and conduct
of the plaintiff in determining what risks she assumed, the court
makes no distinction between the risks that are inherent to her
actual choices—to ski into the terrain park area, but not to “take”
any of the features—and risks that are inherent to choices one
would make when actually intending to ski over the specific
features.

Id. at 1151 (emphases added). We concluded that “it was error for the district
court to conclude that . . . having assessed the risks and decided not to use the
terrain features, that there is no material issue of fact concerning whether a skier
could leave without accruing those very risks.” Id. (emphasis added); see also
1151 (“[W]e conclude that the district court erred when it found that the risk of
falling twelve feet into a snowboard half-pipe was an inherent risk of [the
plaintiff’s] alpine skiing when she had stopped and observed double diamond
terrain features and had chosen not to ‘take’ those features.”). Thus, in Dunbar,
we highlighted that the inquiry into the particular opportunity at issue—and,
derivatively, the risk inherent in it—must focus, not only on the opportunities that
the provider offered, but also the particular opportunity in which the consumer
agreed to participate. See id. at 1149 (“To determine what risk is inherent to [the
plaintiff’s] activity, we must go beyond a broad characterization and inquire into
the specific circumstances of both her actions and those of the recreation
provider.” (emphasis added)).

27
 Though not exclusively defining the parameters of our analysis, we find the

foregoing three guideposts illuminating. Cognizant of them, we have carefully

considered the relevant caselaw and the factual record. We conclude that Mr.

Dullmaier’s death was the result of specific risks that are inherent in the sport or

recreational opportunity in which he elected to participate—that is, a guided

horseback-riding tour of a wilderness area.

a

It is undisputed that Xanterra offered members of the public a guided

horseback-riding tour of a wilderness area, and Mr. Dullmaier elected to

participate in this tour. We thus proceed to examine the factual record with the

greatest degree of specificity possible to discern the nature of the risks that

Xanterra exposed Mr. Dullmaier to in delivering this opportunity and whether

those risks were inherent in that opportunity.

Mr. Dullmaier fell during a guided trail ride through a wilderness area of

Yellowstone National Park. Notably, unlike Sapone, Xanterra did not offer this

horseback-riding opportunity exclusively to young children; indeed, typically, the

majority of the participants of such rides were adults. See Aplt.’s App., Vol. 2, at

389 (Ms. Flynn testifying that a “full ride” consisted of twenty riders, and that

they usually had only “four to six kids”); id., Vol. 1, at 75 (requiring in

Xanterra’s acknowledgment-of-risk form that children younger than twelve be

28
accompanied by an adult and specifying that no child younger than eight could

participate at all). Therefore, the unique universe of inherent and atypical risks

that would likely be associated with a children-only sport or recreational

opportunity ordinarily would not be present here.

The entire ride took place in a wilderness area where riders ordinarily

would anticipate encountering native wildlife. See Aplt.’s App., Vol. 2, at

449–50 (Dep. of Edward W. Dabney, dated Jan. 5, 2016) (agreeing that on “this

particular trail ride, the one-hour trail ride from Roosevelt,” riders “may

encounter a number of different wildlife on this trail,” including bears, bison, and

birds). This specific ride includes a wetland that offered “a natural habitat

for . . . ducks and other waterfowl.” Id. at 449, 450; see also id. at 306 (noting

that the one-hour ride “traverses a variety of terrain and natural features including

wetlands” that are home to “birds, ducks, and wetland fowl”). It logically follows

that, by signing up for this particular trail ride, a rider would assume the inherent

risk that a wild animal—like a duck—might suddenly appear on the trail.

And if a wild animal appears, there is the inherent risk that a horse will

spook. We pointed out in Cooperman that horses can act unpredictably when

confused or frightened. See 214 F.3d at 1167 (noting that a horse might “simply

begin to gallop for no apparent reason” and concluding that this “clearly would

qualify as inherent risks of horseback riding”). Even Ms. Dullmaier’s experts

29
acknowledged this risk, testifying that a trail horse “may spook as a result of

encountering wildlife” and conceding that Xanterra had “advise[d] . . . guests that

it was a possibility that . . . they might encounter wildlife and that the horse may

react to that encounter.” Aplt.’s App., Vol. 2, at 443.

The wranglers on this ride knew this, too. Mr. Wilson testified that “horses

are prey animals so they are spooky and worried about what is around them,” id.,

at 401, while David Saddler testified that there might be “random things you just

can’t prepare for” on a ride, including when “something jump[s] out and spook[s]

the horses.” Id. at 429 (Dep. of David Saddler, dated Jan. 15, 2016). In fact, they

had seen it happen that very summer. Id., Vol. 4, at 1068 (Aff. of Sarah Soltys,

dated Jan. 29, 2016) (noting that, in the summer of 2012, at least one other rider

had been “thrown off [his horse] when a badger jumped out” onto the trail path).

When one horse spooks, there is a risk that the others will also spook.

Xanterra’s expert Wayne G. Hipsley opined that, “if one horse on the trail ride

goes on alert for a potential threat, other horses will respond in an equal manner.”

Id., Vol. 2, at 306 (Expert Opinion of Wayne G. Hipsley, dated Dec. 14, 2015).

Mr. Hipsley also noted that “[i]f the horse is not controlled by the rider the

horse’s reaction may be escalated.” Id. Ms. Dullmaier’s experts essentially

acknowledged as much. For example, one of them, Mr. Dabney, wrote that “[i]f

the horses in front spook and react . . . by jumping, raring or bucking,” it causes

30
“a chain reaction . . . down the line of horses in which the other horses become

nervous, agitated and begin reacting negatively.” Id., Vol. 1, at 154 (Expert

Opinion of Ed Dabney, dated Nov. 11, 2015).

This “chain reaction” often leads a group of horses to break into a gallop

and run to safety. As Mr. Dabney put it, horses display “the flight response of

herd type prey animals” and may “continue running toward safety” when alarmed.

Id. at 159. And another of Ms. Dullmaier’s experts, Kenneth Laughery, Jr.,

noted that “[a] horse responding to being spooked by a gait change (e.g.,

‘running’) is also a known and foreseeable event encountered often by

wranglers,” as is “[a] horse’s flight response.” Id. at 122 (Expert Opinion of

Kenneth Ronald Laughery, Jr., dated Nov. 15, 2015).

Further, it is an unremarkable consequence of these inherent risks that a

rider might fall from a spooked, runaway horse. As Ms. Flynn explained,

stopping a runaway horse is “very difficult,” since “[a] runaway horse does not

stop” when it is “terrified . . . [or] afraid of something.” Id., Vol. 2, at 395, 399.

The possibility of such falls is greater on a trail ride over varied terrain—like the

ride that Mr. Dullmaier participated in—because, in that environment, a

frightened horse might run down a steep slope, making it harder for a rider to stay

in his or her saddle. Ms. Flynn testified that, when a horse begins running

31
downhill “at a fast[] gait, it’s very hard to sit, especially if you don’t know what

you’re doing.” Id. at 391.

From this, we conclude that this particular opportunity (i.e., guided trail

ride through a wilderness area)—under the specific factual circumstances of this

case—carried at least four relevant inherent risks. Namely, there were inherent

risks that (1) wildlife, including ducks, would be present on the trail ride; (2) a

wild animal might appear suddenly, spooking the lead horse into running away;

(3) the other horses might react similarly and run with the lead horse; and (4) the

runaway horses may travel over downhill portions of the trail at a fast pace when

seeking to escape perceived danger.

b

We ask then whether Mr. Dullmaier’s injuries stemmed from such risks

inherent to the particular opportunity. We answer in the affirmative. Thus, the

district court did not err in ruling that Xanterra was insulated from possible

negligence liability under the WRSA.

As we point out above, the trail ride that Mr. Dullmaier elected to

participate in had inherent risks that quite naturally could have resulted in a

participant falling from a runaway horse spooked by wildlife. And, unfortunately,

those risks are precisely what led to Mr. Dullmaier’s fall and fatal injuries. The

ride followed a trail that wound through the Yellowstone wilderness. When the

32
riders approached the narrow bridge in Pleasant Valley—a wetlands area and

known habitat for waterfowl—a few ducks flew out from underneath the bridge.

The lead horse spooked, turned, and ran through the line of horses. This

frightened Mr. Dullmaier’s horse, who took off after the lead horse and began

running towards a hill at a full gallop. As the horse began galloping down the

other side of the hill, Mr. Dullmaier lost his grip on the saddle and fell. The risks

resulting in Mr. Dullmaier’s fall were clearly inherent in the particular sport or

recreational opportunity that he undertook. And nothing suggests that Mr.

Dullmaier’s fatal injuries stemmed from atypical risks to which Xanterra exposed

him.

c

Ms. Dullmaier’s arguments to the contrary are unavailing. She argues that

Xanterra failed to eliminate the risks that led to Mr. Dullmaier’s death; that

failure itself, she argues, introduced “non-inherent hazards” that were “substantial

factors” in Mr. Dullmaier’s death. Aplt.’s Opening Br. at 45. Specifically, she

argues that Xanterra should have (1) scared the ducks out from under the bridge

before the riders approached it, (2) provided guides who had more skill and

experience, (3) trained its guides to deal with emergency situations, (4) given

instructions on how to stop a horse in an emergency, along with providing a

33
wrangler at the back of the line to help guests in an emergency, and (6) provided

riders with different reins.

But Ms. Dullmaier does not point to anything that Xanterra did to “increase

the inherent risks” of the guided wilderness horseback ride, Creel, 287 P.3d at

739; more specifically, she does not offer proof of atypical risks to which

Xanterra exposed Mr. Dullmaier. Read fairly, the “substantial factors” Ms.

Dullmaier identifies are merely steps that Xanterra might have taken to minimize

the ride’s inherent risks. And, under the WRSA, Xanterra simply did not have

such an obligation: the statute expressly states that “provider[s]” are “not required

to eliminate, alter, or control the inherent risks” within the sport or recreational

opportunity. W YO . S TAT . A NN . § 1-1-123(b); see Kovnat, 770 F.3d at 955

(“Xanterra ‘is not required to eliminate, alter or control the inherent risks’

associated with horseback riding.” (citing W YO . S TAT . A NN . § 1-1-123(b))). As

we advised in Cooperman, “It is important to remember . . . in framing the duty

question, we are not to ask whether the recreational provider could have

controlled or eliminated the risk. . . . [W]e are simply to look at the specific facts

which surround the risk without questioning the provider’s ability to control or

eliminate those risks.” 214 F.3d at 1167 n.4. Consequently, it would be incorrect

for us to conclude that Xanterra had a duty to take the steps Ms. Dullmaier

identified.

34
 Relatedly, Ms. Dullmaier argues that “[w]hether a risk can be eliminated is

a factor in determining if that risk is inherent in the sport.” Aplt.’s Br. at 44; see

also id. at 34–36 (arguing that expert testimony showed that Xanterra’s

employees “knew or should have known where the ducks were located” and

suggesting that the risks posed by the ducks were not inherent). This is incorrect.

As we made clear in Cooperman, Sapone, and Kovnat, supra, a provider’s ability

to eliminate a given risk is irrelevant to determining whether that risk is inherent

in the opportunity. Instead, pursuant to the WRSA, our inquiry focuses on

whether the specific risk at issue was inherent in the particular sport or

recreational opportunity in which the consumer participated; only when the risk is

determined to have been atypical or non-inherent do we consider whether the

provider could have “eliminate[d], alter[ed], or control[led]” the risk.” W YO .

S TAT . A NN . § 1-1-123(b). 3

3
Ms. Dullmaier’s arguments seem to be based on a misunderstanding
of our caselaw. We have previously determined that a reasonable jury could have
inferred that a provider exposed a participant in a sport or recreational
opportunity to atypical risks by not taking certain actions. See Kovnat, 770 F.3d
at 960; Sapone, 308 F.3d at 1104. The principle at work there, however, was that
in failing to act under the factually specific circumstances of those cases, the
provider may actually have “increase[d] the inherent risks of the sport,” Creel,
287 P.3d at 739—viz., we concluded that there were triable issues regarding
whether the providers’ failures to act exposed participants to atypical risks. (Of
course, in other factually specific circumstances, a provider’s affirmative acts
may have precisely the same effect.) These cases patently do not stand for the
proposition that providers may be held liable for their failures to mitigate,
ameliorate, or eliminate inherent risks of a sport or recreational
(continued...)

35
 In sum, we conclude that Mr. Dullmaier’s fatal injuries stemmed from risks

that were inherent in the particular sport or recreational opportunity in which he

elected to participate. Accordingly, under Wyoming law, Xanterra had no duty to

protect against those risks. Therefore, Ms. Dullmaier’s negligence claim must

fail.

III

Ms. Dullmaier argues that the district court erred in finding that costs were

properly awarded to Xanterra. Rule 54(d)(1) provides that costs, other than

attorneys’ fees, should generally “be allowed to the prevailing party.” F ED . R.

C IV . P. 54(d)(1). We have recognized that this rule “creates a presumption that

the district court will award costs to the prevailing party.” Cantrell v. Int’l Bhd.

of Elec. Workers, AFL-CIO, Local 2010, 69 F.3d 456, 458–59 (10th Cir. 1995)

(en banc). We have also held that the “district court possesses ‘broad discretion’

in awarding costs.” In re Williams Sec. Litig.-WCG Subclass, 558 F.3d 1144,

1148 (10th Cir. 2009) (quoting U.S. Indus. v. Touche Ross & Co., 854 F.2d 1223,

1247 (10th Cir. 1988), overruled on other grounds as recognized by Anixter v.

3
(...continued)
opportunity—even if they can easily do so—because the WRSA imposes no such
duty on them. See, e.g., Cooperman, 214 F.3d at 1167 n.4 (“[W]e are simply to
look at the specific facts which surround the risk without questioning the
provider’s ability to control or eliminate those risks. And because at this stage of
the analysis we are focusing only on duty, we do not ask if the defendant was
negligent in any of its actions with regard to the plaintiff.”).

36
Home-Stake Prod. Co., 77 F.3d 1215, 1231 (10th Cir. 1996)). Accordingly, we

review costs awards only for an abuse of discretion. See Touche Ross, 854 F.2d

at 1245. A district court abuses its discretion only where it (1) commits legal

error, (2) relies on clearly erroneous factual findings, or (3) where no rational

basis exists in the evidence to support its ruling. See, e.g., Elephant Butte

Irrigation Dist. v. U.S. Dep’t of the Interior, 538 F.3d 1299, 1301 (10th Cir.

2008).

On appeal, Ms. Dullmaier offers two arguments to support her contention

that the district court’s costs award evinces an abuse of discretion: (1) the court

erred in not enforcing § 1924’s affidavit requirement as to Xanterra; and (2) the

court erred in awarding costs for depositions when they “were not necessary for

purposes of the case.” Aplt.’s Opening Br. at 57. Both arguments fail.

First, the district court did not abuse its discretion in finding that

Xanterra’s costs request complied with the applicable costs statute, 28 U.S.C.

§ 1924, as well as the District of Wyoming’s Local Rules. Section 1924 states

that

[b]efore any bill of costs is taxed, the party claiming any item of
cost or distribution shall attach thereto an affidavit, made by
himself or by his duly authorized attorney or agent having
knowledge of the facts, that such item is correct and has been
necessarily incurred in the case and the services for which fees
have been charged were actually and necessarily performed.

37
28 U.S.C. § 1924.

Particularizing this statutory mandate, the District of Wyoming’s Local

Rules require a party seeking costs to “prepare and file a bill of costs . . . on

[Administrative Office of the U.S. Courts] form 133,” (“AO form 133”) which

should “include an itemized schedule of costs incurred, documentation for all

costs claimed, and a statement that such schedule is correct and that the charges

were actually and necessarily incurred.” D. W YO . C IV . R. 54.2(a). AO form 133

requires a litigant to affirm, under penalty of perjury, that the reported costs

“were actually and necessarily performed.” Aplt.’s App., Vol. 5, at 1185.

Xanterra’s designated agent signed AO form 133 on February 26, 2016.

The district court found that “the declaration in the AO 133 form satisfies 28

U.S.C. § 1924’s [affidavit] requirement,” since the agent “attest[ed] to the

necessity of the charges.” Id. at 1229.

The district court did not abuse its discretion in coming to that conclusion.

The language of AO 133 does not materially differ from that of § 1924. And, as

the district court noted, other courts have reached the same result, finding that a

“[d]eclaration submitted by [the prevailing party] as part of the Bill of Costs

satisfied § 1924.” Ankerson v. Am. Zurich Ins. Co., No. 1:15cv108-LG-RHW,

2016 WL 927225, at * 1 (S.D. Miss. Mar. 11, 2016) (unpublished); Fitbug

38
Limited v. Fitbit, Inc., No. 13-1418 SC, 2015 WL 2251257, at *2 (N.D. Cal. May

13, 2015) (unpublished).

As for Ms. Dullmaier’s second argument regarding the depositions, under

the Local Rules, litigants may seek costs for depositions, “or portions thereof,”

that are “used in support of . . . any dispositive motion.” D. W YO . C IV . R.

54.2(a)(2)(C). Xanterra sought costs for only those depositions associated with

its summary-judgment briefing. Contrary to Ms. Dullmaier’s arguments, the

district court clearly relied in its summary-judgment ruling on Xanterra’s

deposition transcripts—specifically, in recounting the factual background in three

pages of its order, and then later by drawing from those deposition sources in its

legal analysis. And, as the district court put it, “[s]imply because the Court may

have ultimately found certain arguments presented to be irrelevant does not mean

it did not consider them in its decision.” Aplt.’s App., Vol. 5, at 1230. In light of

all of this, we conclude that the district court was within its discretion in finding

that the deposition costs were properly awarded.

IV

For the foregoing reasons, we affirm the district court’s judgment.

39