Burdick v. Romano

148 N.E.3d 335

Kathleen BURDICK and Bruce Burdick, Individually, and as Husband and Wife, Appellants-Plaintiffs,

v.Julie ROMANO, Appellee-Defendant.

Court of Appeals Case No. 19A-CT-2739

Court of Appeals of Indiana.

Filed May 5, 2020

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

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:

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 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.

[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 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 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 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 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...