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Horseback Riding Case (Plaintiff’s side)

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290 Fed.Appx. 537, 2008 WL 3992346 (C.A.4 (W.Va.))

United States Court of Appeals,

Fourth Circuit.
Heather RUTECKI, Plaintiff-Appellant,

v.
CSX HOTELS, INCORPORATED, d/b/a The Greenbrier Resort, Defendant-Appellee.

Heather Rutecki, Plaintiff-Appellant,
v.

CSX Hotels, Incorporated, d/b/a The Greenbrier Resort, Defendant-Appellee.

Nos. 07-1144, 07-1711.
Argued: May 14, 2008.
Decided: Aug. 19, 2008.

Background: Plaintiff brought action against resort to recover damages for personal injuries she
sustained during guided horseback ride, alleging negligence and violations of West Virginia
Equestrian Activities Responsibility Act. The United States District Court for the Southern District
of West Virginia, Thomas E. Johnston, District Judge, granted resort’s summary judgment
motion. Plaintiff appealed.

Holdings: The Court of Appeals held that:
(1) plaintiff failed to demonstrate causal relationship between resort’s alleged failure to make
reasonable efforts to determine plaintiff’s horseback riding ability and plaintiff’s injuries, as
required under Act;
(2) horseback ride guide’s action s in trying to prod horse along trail were insufficient to
demonstrate lack of prudence to point of being shocking; and
(3) Act displaced plaintiff’s action for ordinary negligence.

Affirmed.

Before MOTZ, Circuit Judge, HAMILTON, Senior Circuit Judge, and CLAUDE M. HILTON, Senior
United States District Judge for the Eastern District of Virginia, sitting by designation.

**1 Heather A. Rutecki brought suit against CSX Hotels, Inc., d/b/a The Greenbrier Resort

(Greenbrier) for injuries she sustained during a guided horseback ride at the resort. Rutecki’s
complaint asserts three causes of action. First, Rutecki argues that Greenbrier violated the West
Virginia Equestrian Responsibilities Act (the Act), W. Va.Code § 20-4-1 et seq. Next, Rutecki
argues that Greenbrier committed gross negligence. Finally, Rutecki argues that Greenbrier
committed ordinary negligence. The district court granted Greenbrier’s motion for summary
judgment on all three counts. We affirm.

I.
Rutecki, an attorney from Florida, planned a visit to the Greenbrier with her mother for

September 12, 2004. While making reservations for her stay, she inquired about horseback
riding opportunities and scheduled a guided group ride. She was told by Greenbrier staff that all
necessary equipment would be provided for her and that she did not have to bring her own

newly-purchased equipment. Rutecki had been horseback riding on multiple occasions prior to
her trip to the Greenbrier.

On September 13, Rutecki went to Kate’s Mountain Outfitters, the Greenbrier’s outdoor
activities purveyor. There was no record of Plaintiff’s group ride reservation, so she scheduled a
one-on-one guided trail ride. She was given a riding helmet and presented with a prepared
statement regarding West Virginia’s liability limitations, restrictions, and responsibilities relative
to equestrian activities. Rutecki printed and signed her name on the prepared statement, but
claims she did not read it as she was told that it was a “sign-in sheet.” The prepared statement
also contained a place for the guest to fill in his or her level of riding experience, which Rutecki
did not do.

Karl Diem, a trail guide on the Greenbrier’s equestrian staff, rode to the riding circle on a
horse named “Thunder” leading a horse named “Trump” for Plaintiff to ride. Diem had never
ridden Thunder *539 before. Plaintiff mounted Trump and the ride began.

Diem and Rutecki successfully completed a portion of the ride without incident. After entering
a riding trail through a wooded hillside, Diem’s horse, Thunder, stopped on the trail and refused
to advance. Diem attempted to get Thunder moving by talking, making a “kissing” noise, and
using his heels. He then struck Thunder with a riding crop multiple times. After being struck with
the crop, Thunder turned off the trail and attempted to go up the adjacent hillside. Diem lost his
balance and jumped off Thunder holding the reins. During the Diem-Thunder melee, Rutecki’s
horse, Trump, spun around and ran back down the trail causing Plaintiff to be thrown off and to
sustain severe physical injuries.

Rutecki filed suit on March 16, 2006. Prior to the end of discovery, but after Diem and Rutecki
testified at deposition, Greenbrier filed a motion for summary judgment. While the motion was
pending but not fully briefed, Rutecki’s counsel withdrew and Rutecki filed multiple pro se
responses in opposition to the motion. Rutecki successfully hired new counsel prior to the district
court’s final pretrial conference in December, 2006. At the final pretrial conference, the district
court inquired as to whether Rutecki wished to conduct further discovery, and she replied that
she wanted the case to proceed to trial as scheduled, but requested leave to make supplemental
filings on Greenbrier’s summary judgment motion. The district court permitted both parties to
make supplemental filings and ultimately entered summary judgment in favor of Greenbrier.

II.
**2 This Court reviews de novo the district court’s entry of summary judgment. See Nat’l

City Bank of Ind. v. Turnbaugh, 463 F.3d 325, 329 (4th Cir.2006)(“We review a grant of
summary judgment de novo ”). Summary judgment is appropriate where there is no genuine
issue as to any material fact. See Fed.R.Civ.P. 56(c). Once a motion for summary judgment is
properly made and supported, the opposing party has the burden of showing that a genuine
dispute exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106
S.Ct. 1348, 89 L.Ed.2d 538 (1986). A material fact in dispute appears when its existence or non-
existence could lead a jury to different outcomes. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue exists when there is sufficient
evidence on which a reasonable jury could return a verdict in favor of the non-moving party. See
id. Mere speculation by the non-moving party “cannot create a genuine issue of material fact.”
Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.1985); see also Ash v. United Parcel Serv., Inc., 800
F.2d 409, 411-12 (4th Cir.1986). Summary judgment is appropriate when, after discovery, a
party has failed to make a “showing sufficient to establish the existence of an element essential
to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp.
v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When a motion for
summary judgment is made, the evidence presented must always be taken in the light most
favorable to the non-moving party. See Smith v. Virginia Commonwealth Univ., 84 F.3d 672, 675
(4th Cir.1996) (en banc).

A.

[1] Rutecki first challenges the district court’s decision to grant summary judgment on her
claims under the West Virginia Equestrian Activities Responsibility Act. The West Virginia
Equestrian Activities Responsibility Act, W. Va.Code § 20-4-1 et seq. , states as its purpose “to
define *540 those areas of responsibility and those affirmative acts for which the operators of
equestrian businesses shall be liable … and to further define those risks which the participants
expressly assume” because “there are inherent risks in equestrian activities … which are
essentially impossible for the operators of equestrian businesses to eliminate.” W. Va.Code § 20-
4-1.

The Act provides four duties of horsemen relevant to this case, requiring every horseman to:

(1) Make reasonable and prudent efforts to determine the ability of a participant to safely engage
in equestrian activity, to determine the ability of the horse to behave safely with the participant,
and to determine the ability of the participant to safely manage, care for and control the
particular horse involved;

(2) Make known to any participant any dangerous traits or characteristics or any physical
impairments or conditions related to a particular horse which is involved in equestrian activity of
which the horseman knows or through the exercise of due diligence could know; …

**3 (4) In providing equipment or tack to a participant, make reasonable and prudent efforts to
inspect such equipment or tack to assure that it is in proper working condition and safe for use in
the equestrian activity;

(5) Prepare and present to each participant or prospective participant, for his or her inspection
and signature, a statement which clearly and concisely explains the liability limitations,
restrictions and responsibilities set forth in this article.

W. Va.Code § 20-4-3. In its liability section, the Act provides in relevant part that:

(a) A horseman shall be liable for injury, loss or damage caused by failure to follow the duties
set forth in section three of this article where the violation of duty is causally related to the
injury, loss or damage suffered …

(b) A horseman shall be liable for acts or omissions which constitute gross negligence or willful
and wanton conduct which is the proximate cause of injury to a participant….

W. Va.Code § 20-4-5. With regard to duties of participants, the Act states that:

It is recognized that equestrian activities are hazardous to participants, regardless of all feasible
safety measures which can be taken.

Each participant … expressly assumes the risk of and legal responsibility for any injury … which
results from participation in an equestrian activity. Each participant shall have the sole individual
responsibility for knowing the range of his or her own ability to manage, care for, and control a
particular horse or perform a particular equestrian activity, and it shall be the duty of each
participant to act within the limits of the participant’s own ability, to maintain reasonable control
of the particular horse….

W. Va.Code § 20-4-4.

The district court found that there was a genuine issue of material fact with respect to
Greenbrier’s compliance with the first duty required of horsemen under the Act. The district held
that a jury could find that Greenbrier failed to make a reasonable effort to determine Rutecki’s

riding ability generally and also with respect to her ability to ride Trump. However, in addition to
finding that Greenbrier did not violate any of the other relevant duties under the Act, the district
court found that there was no evidence in the record to establish that Greenbrier’s actions were
“causally related” to Rutecki’s injuries, as required for a horseman to be liable under the Act. We
agree with the district court.

*541 The Act’s first duty required Greenbrier to make a reasonable effort to determine

Rutecki’s riding ability. Greenbrier presented Rutecki with a sheet containing liability limitation
language and a space for Rutecki to fill in her level of horseback riding experience. While Rutecki
signed the liability limitation form, she did not fill out the portion indicating her level of
experience. Consequently, a jury could find that Greenbrier did not make a reasonable effort to
determine Rutecki’s riding ability, as Rutecki testified at deposition that Greenbrier made no
follow-up inquiry to determine her ability. In addition, the Act’s first duty requires horsemen to
match the participant’s ability with the particular horse she will ride. Since a jury could
reasonably conclude that Greenbrier did not reasonably ascertain Rutecki’s riding ability, a jury
could also conclude that Greenbrier failed to determine Rutecki’s ability to manage Trump.

**4 The Act’s second duty requires horsemen to make known to a participant any dangerous

conditions of a particular horse. Rutecki provides no evidence that either Trump or Thunder
possessed any dangerous characteristics at the time of her trail ride. Moreover, the record shows
that Trump was successfully used as a trail horse for ten years and there is no indication that
Greenbrier had experienced any problems with Thunder prior to Rutecki’s injury. Consequently,
no jury could find that Greenbrier breached this duty.

The Act’s third duty requires horsemen to inspect equipment provided to participants to
insure that it is in proper working condition. Rutecki presents no evidence that the equipment
she was provided with was defective in any way. However, she argues that Greenbrier’s failure
to provide her with additional equipment-specifically riding boots and pants-constitutes a
violation of this duty. This argument fails because Rutecki presents no evidence that riding boots
or pants were necessary for the ride she took or that Greenbrier’s failure to provide such
equipment was unreasonable.

The Act’s fourth duty requires horsemen to present participants with a clear statement of the
Act’s liability limitation. A clear and concise statement of the Act’s liability limitation was
presented to and signed by Rutecki on the date of her ride, thus satisfying Greenbrier’s
obligation to comply with this duty. Rutecki argues, however, that because she was told to sign a
“sign-in sheet” she did not realize she was being presented with a liability limitation statement.
However, the document signed by Rutecki is titled “The Greenbrier Notice, Release, and
Indemnification,” and contains a paragraph explaining the various duties of horsemen and riders.
Greenbrier has clearly complied with this duty in this case.

While we conclude Greenbrier’s compliance with the Act’s first duty is a material fact in
dispute, in order to survive summary judgment, Rutecki must also point to a disputed material
fact concerning the causation required by the Act. For Greenbrier to be liable, its failure to
ascertain Rutecki’s riding ability and her ability to control Trump must be “causally related” to
the injuries she sustained. W. Va.Code. § 20-4-5(a). In contrast, to be liable for gross negligence
under the Act, Greenbrier’s actions must have proximately caused the participant’s injuries. Id.
at § 20-4-5(b). Consequently, the “causally related” standard requires a degree of causation
somewhat less than that required by the familiar proximate cause standard.

While the West Virginia legislature has not explicitly defined the “causally related” standard, a
court in West Virginia has had occasion to interpret the standard in the context of another
statute. See *542 Hardin v. Ski Venture, 848 F.Supp. 58 (N.D.W.Va.1994)(interpreting the West
Virginia Ski Responsibility Act, W. Va.Code § 20-3A-1 et seq. , which contains the same “causally
related” standard). In Hardin, the court denied the defendant’s motion for summary judgment
holding that the plaintiff’s expert witness had set forth sufficient evidence to create a material

fact issue by “opin[ing], by deposition and an accompanying report, that the accident resulted
from the making of excessively wet snow which stuck to plaintiff’s goggles and obscured his
vision. In addition, plaintiff’s expert believes that the placement of the snow-making machine …
may have contributed to the accident.” Id. at 59.

**5 Here, Rutecki has not presented any evidence that could lead a jury to conclude that her

injuries were causally related to Greenbrier’s failure to assess her horseback riding ability.
Indeed, had Greenbrier more thoroughly investigated Rutecki’s ability, they would have found
that she had been riding on multiple prior occasions. Without any evidence that Trump or
Thunder could be ridden only by more experienced riders, there is no evidence that Greenbrier
would have had Rutecki ride a different horse or a different route given her level of experience.
Consequently, we agree with the district court that “[r]egardless of what [Greenbrier] may or
may not have done, the intervening event of the inexplicable behavior of the two horses appears
to be the cause of this accident.”

Rutecki argues that the district court erred in granting summary judgment based on a lack of
evidence of causation because Greenbrier did not move for summary judgment on causation
grounds.FN1 See John Deere Co. v. American Nat. Bank, 809 F.2d 1190 (5th Cir.1987)(reversing
summary judgment where, without adequate notice to the plaintiff, the district court granted
defendant’s motion on grounds not urged by defendant). However, “district courts are widely
acknowledged to possess the power to enter summary judgments sua sponte, so long as the
losing party was on notice that she had to come forward with all of her evidence.” Hughes v.
Bedsole, 48 F.3d 1376, 1379 (4th Cir.1995)(quoting Celotex, 477 U.S. at 326, 106 S.Ct. 2548).

FN1. Greenbrier’s initial motion for summary judgment advances the theory that the Act
precludes liability for injuries sustained in a fall from a horse. The district court rejected this
argument and Greenbrier does not pursue it on appeal.

The record indicates that Rutecki received notice that causation was a live issue on summary
judgment. First, Greenbrier moved for summary judgment on Rutecki’s entire complaint, and
success on the merits of Rutecki’s claim under the Act would require proof of causation. Second,
in a supplemental opposition brief, Rutecki specifically argued that her injuries were caused by
Greenbrier’s actions and referenced evidence in the record in an attempt to highlight a material
fact in dispute. Third, in its response to Rutecki’s supplemental finding, Greenbrier explicitly
argued that its actions had not caused Rutecki’s injuries. Consequently, it is clear that Rutecki
had notice that causation was an issue the district court would consider on defendant’s motion
for summary judgment.

B.
West Virginia law “recognizes a distinction between negligence, including gross negligence

and wilful [sic], wanton, and reckless misconduct.” Mandolidis v. Elkins Indus., 161 W.Va. 695,
246 S.E.2d 907, 913 (1978). While the West Virginia Supreme Court of Appeals has never
provided its own definition of gross negligence, it has interpreted Virginia law to *543 define
gross negligence as the “degree of negligence which shows an utter disregard of prudence
amounting to complete neglect of the safety of another.” Dodrill v. Young, 143 W.Va. 429, 102
S.E.2d 724, 730 (1958). Virginia courts have further defined gross negligence as “an utter
disregard of prudence, amounting to complete neglect of the safety of another, such as to be
shocking to reasonable men,” Finney v. Finney, 203 Va. 530, 125 S.E.2d 191, 193 (1962), and
the “absence of slight diligence, or the want of even scant care.” Colby v. Boyden, 241 Va. 125,
400 S.E.2d 184, 189 (1991) (internal quotation omitted).

**6 [2] We agree with the district court that Rutecki has produced “no affidavits, no
deposition testimony, and no expert opinion that Mr. Diem’s conduct even strayed from what
was reasonable under the circumstances, let alone to such a degree as to show an utter

disregard for prudence.” The only evidence Rutecki points to is her own deposition testimony
describing Diem’s struggle with Thunder prior to her injury. No reasonable juror could conclude
from this testimony that Diem’s conduct was without prudence to the point of being shocking.
Moreover there is no evidence in the record to suggest that Greenbrier’s actions were the direct
or proximate cause of Rutecki’s injuries.

C.

[3] We agree with the district court that the West Virginia Equestrian Activities
Responsibility Act displaces actions for ordinary negligence. The Act states that “there are
inherent risks in equestrian activities … which are essentially impossible for the operators of
equestrian businesses to eliminate.” W. Va.Code § 20-4-1. To permit an action for ordinary
negligence against a horseman operating under the Act would contravene its purpose.

III.
For the foregoing reasons, the judgment of the district court is affirmed. FN2

FN2. In No. 07-1711, the Court affirms the district court’s award of costs.

AFFIRMED.

Rutecki v. CSX Hotel, Inc., Not Reported in F.Supp.2d (2007)

2007 WL 192514
Only the Westlaw citation is currently available.
United States District Court, S.D. West Virginia.

Heather RUTECKI, Plaintiff,
v.

CSX HOTELS, INC., dba The
Greenbrier Resort, Defendant.

Civil Action No. 5:05-cv-00226.
|

Jan. 16, 2007.

Attorneys and Law Firms

John K. Bailey, Charleston, WV, John J. Clark, W. Sam
Holland, The Ferraro Law Firm, Miami, FL, for Plaintiff.

Curtis R.A. Capehart, James W. Turner, Wendy Glover
Adkins, Huddleston Bolen, Huntington, WV, Devang
Desai, Mark R. Antonelli, Gaebe Mullen Antonelli Esco
& DiMatteo, Miami, FL, for Defendant.

MEMORANDUM OPINION

THOMAS E. JOHNSTON, United States District Judge.

*1 Pending before the Court is the Motion for
Summary Judgment [Docket 35] of Defendant CSX
Hotels, Inc., d/b/a The Greenbrier Resort (“Greenbrier”).
For the reasons stated below, the Greenbrier’s motion is

GRANTED. 1

I. BACKGROUND

Prior to September 12, 2004, 2 Plaintiff Heather Rutecki,
a Florida citizen, made a reservation to stay at the
Greenbrier in White Sulphur Springs, West Virginia.
Rutecki Dep. at 78. At the same time Plaintiff made her
reservation, she also made a reservation to go horseback

riding at the Greenbrier. 3 Id. at 72. On the morning of
September 13, 2004, Plaintiff arrived at the office of Kate’s
Mountain Outfitters in the lobby of the Greenbrier, where
she informed the employee working behind the counter
that she had a reservation for a “group” horseback

ride. 4 Id. at 84. The employee advised Plaintiff that no
such reservation could be located. Id. However, after the
employee contacted a groom in the Greenbrier’s stable,

Mr. Diem, she was able to arrange for Plaintiff to take a
private ride with Mr. Diem as her guide. Id. at 86. Even
though Plaintiff wanted a group ride because she said she
“would feel safe,” Plaintiff accepted. Id. at 87.

Mr. Diem, having just completed a carriage ride with
another group of individuals, walked over to the riding
circle-where the riding horses were located-and selected a
horse for Plaintiff. Diem Dep. at 39. Mr. Diem was given
his horse, Thunder, by another groom who had recently

completed a private ride. 5 Id. The record is unclear as to
whether, prior to Plaintiff mounting her horse, Mr. Diem

was informed of her riding capability. 6 As Mr. Diem was
preparing for his ride with Plaintiff, she was in the office
and was given a riding helmet and told that her guide
would be waiting for her outside. Rutecki Dep. at 89-90.
According to Plaintiff, she walked outside, greeted Mr.

Diem, and was about to mount her horse, Trump, 7 when
the employee in the office asked her to come back inside
and sign what Plaintiff testified the employee referred
to as a “sign in” sheet. Id. at 93. Plaintiff went back
inside the office and executed “The Greenbrier Notice,

Release and Indemnification.” 8 The Notice, Release and
Indemnification required Plaintiff to print her name and
sign the third page, which she did. Id. at 98-99. However,
the document also had a column for Plaintiff to indicate
her riding ability, which she failed to do. Id. at 98.

After she printed her name and signed the Notice,
Release and Indemnification, Plaintiff went back outside,
mounted her horse, and began her ride. Id. at 112-15.
Shortly after beginning the trail portion of the ride, Mr.
Diem’s horse balked at something it either saw or thought
it saw, and then went up a bank and turned suddenly.
Diem Dep. at 50. Mr. Diem tried to gain control of
Thunder by what Plaintiff described as “wrestling” and
“whipping” his horse. Rutecki Dep. at 135. However, Mr.
Diem was unable to control the horse, lost his balance,
and was forced to jump clear of the animal. Diem Dep.
at 51. Plaintiff’s horse, apparently disturbed by Thunder’s
reaction, turned quickly and ran, causing Plaintiff to fall
and severely injure her back. Rutecki Dep. at 137-38.

*2 On March 17, 2005, Plaintiff filed a three-count
complaint against the Greenbrier alleging negligence,
liability for breach of the duties set forth in the West
Virginia Equestrian Activities Responsibility Act, W.
VA.CODE §§ 20-4-1 to 20-4-7 (“the Act”), and gross

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 1

Rutecki v. CSX Hotel, Inc., Not Reported in F.Supp.2d (2007)

negligence. Specifically with regard to liability under the
Act, Plaintiff alleged that the Greenbrier failed to:

a) Make reasonable and prudent efforts to determine
the ability of [Plaintiff] to safely engage in the
equestrian activity at issue herein;

b) Determine the ability of [Plaintiff] to safely manage,
care for and control the particular horse involved in
this accident;

c) Make known to [Plaintiff] any dangerous traits or
characteristics or physical impairments or conditions
related to any of the horses involved in this accident
which the Greenbrier knew or should have known;

d) Present to [Plaintiff] for her inspection and signature,
a statement which clearly and concisely explained the
liability limitations, restrictions, and responsibilities
set forth in WV Code § 20-4-1, et. seq [sic].

Compl. ¶ 23.

The damages sought by Plaintiff included amounts for
severe physical and emotional injury, pain and suffering,
medical bills and expenses, lost earnings, lost earning
capacity, embarrassment and humiliation, scarring, and
loss of enjoyment of life. Id. ¶ ¶ 21, 25, 28.

On May 26, 2006, the Greenbrier filed a motion for
summary judgment. Plaintiff, at the time proceeding pro

se, 9 filed a response on July 12 and a supplemental
response on July 13. The Greenbrier filed its reply on July
21, and Plaintiff, without the leave of court required by
LR CIV. P. 7.1(c), filed a surreply on July 24. After nearly
three months of proceeding pro se, Plaintiff obtained
counsel on September 14, 2006. The Court held a Status
Conference on December 12, 2006, at which time it
permitted Plaintiff’s counsel to file a supplemental brief
in opposition to the Greenbrier’s motion. The Court also
permitted the Greenbrier to respond.

At the Status Conference, both parties informed the Court
that they wished to proceed to trial set for January
17, 2007. Pursuant to the parties’ representations, the
Court denied Plaintiff’s outstanding Motion to Stay
and to Modify the Second Amended Scheduling Order
[Docket 85], which was filed on September 14, 2006.
According to the Second Amended Scheduling Order,
Plaintiff’s expert disclosures should have been filed by

September 14, 2006. On October 26, the Greenbrier filed
a Motion to Strike Plaintiff’s Expert Witnesses [Docket
132]. Following the Status Conference and the denial of
the Motion to Stay and to Modify the Second Amended
Scheduling Order, Magistrate Judge VanDervort entered
an Order granting the Greenbrier’s Motion to Strike
Plaintiff’s Expert Witnesses [Docket 200]. On January
11, 2007, Plaintiff appealed the Magistrate Judge’s ruling
as to the equine expert and attached a report of her
proposed equine expert to her appeal. On January 12,
2007, the Court affirmed the Magistrate Judge’s exclusion
of this expert. Plaintiff provided the Court with no expert
testimony in response to the Greenbrier’s motion for
summary judgment and now, as a result of the Court’s
affirmance of Magistrate Judge VanDervort, she cannot.

II. APPLICABLE LAW

a. Summary Judgment Standard
*3 Summary judgment is proper where the pleadings,

depositions, and affidavits in the record show that there
is “no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”
FED.R.CIV.P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). “A genuine issue of material fact exists if,
in viewing the record and all reasonable inferences drawn
therefrom in a light most favorable to the non-moving
party, a reasonable fact-finder could return a verdict for
the non-movant.” Am. Safety Indem. Co. v. Stollings
Trucking Co., 450 F.Supp.2d 639, 642 (S.D.W.Va.2006)
(Copenhaver, J.) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). In other words, “[a] party is
entitled to summary judgment if the record as a whole
could not lead a rational trier of fact to find in favor of
the non-moving party.” Id. (citing Williams v. Griffin, 952
F.2d 820, 823 (4th Cir.1991)).

The party requesting summary judgment bears the initial
burden of showing the absence of any genuine issues
of material fact. See Celotex Corp., 477 U.S. at 322-23.
“The burden then shifts to the nonmoving party to come
forward with facts sufficient to create a triable issue of
fact.” Temkin v. Frederick County Comm’rs, 945 F.2d 716,
718 (4th Cir.1991), cert. denied, 502 U.S. 1095 (1992)
(citing Anderson, 477 U.S. at 247-48). “A party opposing
a properly supported motion for summary judgment may
not rest upon the mere allegations or denials of his [or
her] pleading, but … must set forth specific facts showing
that there is a genuine issue for trial.” Anderson, 477 U.S.

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 2

Rutecki v. CSX Hotel, Inc., Not Reported in F.Supp.2d (2007)

at 256. Furthermore, “the plain language of Rule 56(c)
mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who
fails to make a showing sufficient to establish the existence
of an element essential to that party’s case, and on which
that party will bear the burden of proof at trial.” Celotex,
477 U.S. at 322 (emphasis added).

b. The West Virginia Equestrian Activities Responsibility
Act
The West Virginia Equestrian Activities Responsibility
Act “recognize[s] that there are inherent risks in equestrian
activities which should be understood by participants
therein and which are essentially impossible for the
operators of equestrian businesses to eliminate….” W.
VA.CODE § 20-4-1. The purpose of the Act is “to define
those areas of responsibility and those affirmative acts for
which the operators of equestrian businesses shall be liable
for loss, damage or injury suffered by participants, and to
further define those risks which the participants expressly
assume and for which there can be no recovery .” Id. The

duties of horsemen, as the term is defined in § 20-4-2, 10

are to:

(1) Make reasonable and prudent efforts to determine
the ability of a participant to safely engage in the
equestrian activity, to determine the ability of the horse
to behave safely with the participant, and to determine
the ability of the participant to safely manage, care for
and control the particular horse involved;

*4 (2) Make known to any participant any
dangerous traits or characteristics or any physical
impairments or conditions related to a particular
horse which is involved in the equestrian activity of
which the horseman knows or through the exercise of
due diligence could know;

(3) Make known to any participant any dangerous
condition as to land or facilities under the lawful
possession and control of the horseman of which
the horseman knows or through the exercise of due
diligence could know, by advising the participant in
writing or by conspicuously posting warning signs
upon the premises;

(4) In providing equipment or tack to a participant,
make reasonable and prudent efforts to inspect such

equipment or tack to assure that it is in proper
working condition and safe for use in the equestrian
activity;

(5) Prepare and present to each participant or
prospective participant, for his or her inspection and
signature, a statement which clearly and concisely
explains the liability limitations, restrictions and
responsibilities set forth in this article.

W. VA.CODE § 20-4-3.

Similarly, the Act defines the duties of each participant 11

in an equestrian activity. The duties of a participant are
described as follows:

Each participant in an equestrian activity expressly
assumes the risk of and legal responsibility for
any injury, loss or damage to person or property
which results from participation in an equestrian
activity. Each participant shall have the sole individual
responsibility for knowing the range of his or her own
ability to manage, care for, and control a particular
horse or perform a particular equestrian activity, and
it shall be the duty of each participant to act within
the limits of the participant’s own ability, to maintain
reasonable control of the particular horse or horses at
all times while participating in an equestrian activity,
to heed all posted warnings, to perform equestrian
activities only in an area or in facilities designated by
the horseman and to refrain from acting in a manner
which may cause or contribute to the injury of anyone.
If while actually riding in an equestrian event, any
participant collides with any object or person, except an
obviously intoxicated person of whom the horseman is
aware, or if the participant falls from the horse or from
a horse-drawn conveyance, the responsibility for such
collision or fall shall be solely that of the participant or
participants involved and not that of the horseman.

A participant involved in an accident shall not depart
from the area or facility where the equestrian activity
took place without leaving personal identification,
including name and address, or without notifying the
proper authorities, or without obtaining assistance
when that person knows or reasonably should know
that any other person involved in the accident is in
need of medical or other assistance.

W. VA.CODE § 20-4-4.

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Rutecki v. CSX Hotel, Inc., Not Reported in F.Supp.2d (2007)

Under the Act, a horseman will only be liable in three
situations. First, a horseman is liable “for injury, loss or
damage caused by failure to follow the duties set forth in
section three [§ 20-4-3] of this article where the violation
of duty is causally related to the injury, loss or damage
suffered.” W. VA.CODE § 20-4-5(a) (emphasis added).
Second, a horseman is liable “for acts or omissions which
constitute gross negligence or willful and wanton conduct
which is the proximate cause of injury to a participant.” Id.
§ 20-4-5(b) (emphasis added). Finally, a horseman is liable
“for an intentional injury which he or she inflicts upon a

participant.” Id. § 20-4-5(c). 12

*5 The purpose of the Act is to define those areas of
responsibility for which horsemen will be liable, which
the legislature defined by creating affirmative duties and
permitting liability for injury “causally related” to the
breach of those duties. In sum, an injury to a participant
sustained in an equestrian activity is an inherent risk
assumed by the participant, for which a horseman has no
liability, unless the participant can prove that a breach of
the horseman’s duties under the Act was causally related
to the injury or the injury was proximately caused by the
horseman’s gross negligence or intentional acts.

III. ANALYSIS

a. Count One-Negligence
The West Virginia Equestrian Activities Responsibility
Act, and it alone, establishes the tort liability for a
horseman in West Virginia. See discussion set forth
in Section II. b., supra. See also W. VA.CODE §
20-4-1. Cf. Lewis v. Canaan Valley Resorts, 408 S.E.2d
634, 645 (W.Va.1991) (noting that the West Virginia
Skiing Responsibility Act does not provide an alternative
remedy for the repealed common-law cause of action
resulting from the inherent risks of skiing); see also
Murphy v. N. Am. River Runners, 412 S.E.2d 504,
511 (W.Va.1991) (explaining that the West Virginia
Whitewater Responsibilities Act immunizes commercial
whitewater outfitters from tort liability to participants
resulting from the inherent risks). Otherwise, the Act
would be rendered useless because horsemen would still
be sued under the less stringent standards of simple
negligence. Therefore, a claim of common law negligence
by a participant against a horseman for injury during an
equestrian activity is not recognized under West Virginia
law. Accordingly, the Greenbrier is entitled to summary
judgment on Count One of Plaintiff’s complaint.

b. Count Two-Statutory Liability
On the remaining counts, the Greenbrier argues that it
is entitled to summary judgment for two reasons. First,
it argues that because Plaintiff “fell” off the horse, she
is precluded from recovery due to the fact that she
assumed the risk of such a fall by way of § 20-4-4 (duties
of participants). Specifically, the Greenbrier directs the
Court’s attention to the language in the statute that states,
“if the participant falls from the horse …, the responsibility
for such … fall shall be solely that of the participant …
involved and not that of the horseman.” W. VA.CODE
§ 20-4-4. In effect, the Greenbrier asks this Court to
hold that any fall during an equestrian activity is a risk
assumed by the participant and for which there can never
be liability for the horseman. Alternatively, the Greenbrier
argues that even if it could be held liable for a fall, it is not
liable in this case because it: (1) satisfied all the duties set
forth in § 20-4-3; (2) did not cause Plaintiff’s injury; and (3)
did not act in a grossly negligent fashion. The Court rejects
the Greenbrier’s argument that it can never be liable for a
“fall,” but finds that based on the evidence in the record,
any breach of the Greenbrier’s statutory duties was not
causally related to Plaintiff’s injury. Plaintiff’s claim for
gross negligence also fails but will be addressed separately.

*6 With regard to Count Two of Plaintiff’s complaint,
which alleges a violation of the Act, the Court disagrees
with the Greenbrier’s broad interpretation of the risks
assumed by a participant. The mere fact that a participant
falls from a horse does not insulate a horseman from
liability. To hold otherwise would most often prohibit any
recovery under the Act. While the Court can foresee many

injuries that may occur from other causes, 13 the majority
of equestrian related injuries are likely to occur as a result

of a fall. 14

Under the Greenbrier’s interpretation, a participant
would be barred even if the horseman patently failed
to perform his required statutory duties and such a
breach was causally related to the participant’s injury. For
example, if the Court accepts the Greenbrier’s argument, a
horseman could breach the duty to assure that he provides
safe equipment by giving a participant a broken saddle,
and if this causes the participant to fall off the horse,
the horseman would not be liable. The duties set forth in
the Act’s statutory scheme clearly indicate that the West
Virginia Legislature did not intend such a result. The

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Rutecki v. CSX Hotel, Inc., Not Reported in F.Supp.2d (2007)

more logical approach would be to determine first whether
the horseman adequately performed his duties under the
statute. If he did, then the horseman would be protected
from liability for a participant’s fall in the absence of gross
negligence or intentional misconduct.

Next, the Greenbrier argues that it did not breach any of
the duties alleged by Plaintiff. In her complaint, Plaintiff
alleges that the Greenbrier breached its duty to: (1)
determine the ability of the participant and horse involved
in the equestrian activity; (2) make known dangerous
characteristics of any horse involved in the activity; (3)
present her with a statement that explained the liability
limitations, restrictions, and responsibilities of the Act;

and (4) inspect the equipment provided. 15

(1) Determination of the Ability of Participant and Horse
Section 20-4-3 (1) of the Act requires a horseman
to perform three acts in order to be entitled to the
protection of the Act. The horseman must first, “[m]ake
reasonable and prudent efforts to determine the ability of
a participant to safely engage in the equestrian activity.”
W. VA.CODE § 20-4-3(1). Second, the horseman must
“determine the ability of the horse to behave safely with
the participant.” Id. Finally, he must “determine the
ability of the participant to safely manage, care for and
control the particular horse involved.” Id. Because the
language of the statute is conjunctive, the horseman is
required to do all three, and failure to do any one is a
breach of the statutory duty. Contra Clyncke v. Waneka,
134 P.3d 492 (Colo.App.2005), cert. granted, 2006 Colo.

LEXIS 488 (Colo. May 30, 2006). 16

By the plain language of the first duty in this subsection,
the Greenbrier needed to determine Plaintiff’s ability to
safely engage in the trail ride. To do so, Mr. Diem could
have inquired as to her riding ability prior to helping
her mount her horse. According to Plaintiff, he did not.
Alternatively, Mr. Diem could have reviewed the portion
of the Notice, Release and Indemnification that asked
Plaintiff to describe her riding ability. Had he looked, he
would have seen she did not fill it out and could have tried
to gather more information. In order to establish that the
Greenbrier met this duty, the Greenbrier suggests that Mr.
Diem observed Plaintiff’s “initial handling of Trump and
judged her to be capable .” Evidence of this fact alone
does not support a finding that the Greenbrier reasonably

determined Plaintiff’s ability to safely engage in the trail
ride, and a genuine issue of material fact exists.

*7 However, the Court finds that there is no issue of
material fact as to whether the Greenbrier breached its
duty to determine Trump’s ability to behave safely with
Plaintiff. Mr. Diem’s testimony establishes that Trump
had been used at the Greenbrier for guest rides for
approximately ten years without a guest ever being hurt.
Diem Dep. at 46. Moreover, the grooms and guides had an
informal process by which they distinguished guide horses
from guest horses. Id. at 18. Once a horse was purchased,
it would remain a guide horse until it was determined that
the horse had enough experience to be used by guests.
Id. Plaintiff has put forth no evidence to contradict these
facts or create an issue of material fact as to whether the
Greenbrier breached this duty.

Finally, because the Greenbrier did not determine
Plaintiff’s ability to safely engage in the trail ride, the
Court finds that there is also a material issue of fact
as to whether the Greenbrier also failed to determine
Plaintiff’s ability to safely manage or control her horse.
While Trump may have been safe for any individual to
ride, the question of whether Plaintiff could manage or
control it would be for the jury to determine.

Even though the Court concludes that there is a genuine
issue of material fact as to whether the Greenbrier
breached its duty under § 20-4-3(1), there is no evidence in
the record to show that this breach, if any, was “causally
related” to her injury. Under the Act, the legislature
distinguished the causation required for a breach of duty
cause of action and a gross negligence cause of action.
A breach of the statutory duties set forth in § 20-4-3
merely requires that the injury be “causally related.” W.
VA.CODE § 20-4-5(a). In contrast, the level of causation
needed for a gross negligence cause of action is that
of “proximate cause.” Id. § 20-4-5(b). Obviously, the
legislature intended there to be two different standards of
causation, or else it would have used the same language
in both instances. See Evans v. CDX Servs., 2007 U.S.
Dist. LEXIS 361, at *13 (S.D.W.Va. Jan. 4, 2007) (holding
that differing terminology in two subsections of a statute
should be read differently). Therefore, a participant will
not be held to the proximate cause standard when a
horseman breaches one of the statutory duties set forth in
the Act.

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A precise definition of “causally related” is not found
in the West Virginia case law. However, the legislature
has used this same language in the West Virginia
Skiing Responsibility Act. To deny summary judgment
on the causation issue under the Skiing Act, the
court in Hardin v. Ski Venture, 848 F.Supp. 58, 59
(N.D.W.Va.1994), held that a plaintiff had set forth
sufficient evidence where the plaintiff’s expert witness
“opine[d], by deposition and accompanying report, that
the accident resulted from the making of excessively wet
snow which stuck to plaintiff’s goggles and obscured his
vision.” Furthermore, the court considered the plaintiff’s
expert’s opinion that the defendant negligently operated
its snow-making machinery, which the expert believed
“may have contributed to the accident.” Id. at 59, 60.

*8 Unlike the plaintiff in Hardin, Plaintiff in this case has
not produced any evidence, expert testimony or otherwise,
to demonstrate that her injuries were causally related
to the Greenbrier’s failure to determine her ability to
safely engage in the trail ride. In fact, Plaintiff testified
at her deposition that she had ridden before, but with a
different saddle. Rutecki Dep. at 74-75. This fact would
make it difficult for any rational jury to find that the
Greenbrier’s breach caused Plaintiff’s injury without an
expert. Because Plaintiff can put forth no expert testimony
to prove causation, she has failed to make a showing
sufficient to establish the existence of an element essential
to her case. Celotex, 477 U.S. at 322.

(2) Making Known Dangerous Traits of a Particular
Horse Involved in the Equestrian Activity
The Court agrees with Plaintiff that the duty to inform
a participant of the dangerous traits or characteristics
or any physical impairments of the horse extends to
both horses involved in this incident. The Act defines
an “equestrian activity” as “any sporting event or other
activity involving a horse or horses….” W. VA.CODE §
20-4-2(1). According to this definition, the duty to make
Plaintiff known of any dangerous traits or characteristics
or any physical impairments or conditions, extended to
both Plaintiff’s horse and her guide’s. The activity in
question was the trail ride, and that ride “involved”
both horses. Regardless of the Court’s finding that the
duty extended to both horses, however, there is no
evidence of any dangerous trait or characteristic or
physical impairment or condition related to either horse.
In fact, Mr. Diem testified that Trump had been used
for rides with guests for approximately ten years without

any of them being hurt while riding the horse. Diem
Dep. at 46. Also, he testified that he was unaware of
any problems the guides at the Greenbrier had with
Thunder. Id. Specifically, when asked if Thunder “was in
any way an overly skittish horse or high-strung …”, he
responded, “[n]o sir, it looked like to me he was going
to make a dandy.” Id. Plaintiff has not pointed to any
evidence in the record that raises an issue of material fact
as to any relevant characteristic of either horse. Thus,
the Greenbrier had no duty to inform Plaintiff. As the
Greenbrier argued, “silence was no breach”-there was
nothing to tell.

(3) Presenting Plaintiff with a Statement of Liability
Limitations, Restrictions and Responsibilities Set Forth in
the Act
Contrary to Plaintiff’s argument, there is no genuine
issue of material fact as to whether the Greenbrier
fulfilled its duty to present a statement that explained
the liability limitations, restrictions and responsibilities
set forth in the Act. The record reflects testimony of
three Greenbrier employees who each state that it is their
general practice to present customers with the Notice,
Release and Indemnification and ask them to sign it. See
Crews Dep. at 11-12; Deema Dep. at 10; Kershner Dep. at
8. In accordance with this testimony, Plaintiff stated that
before she mounted her horse, the employee from behind
the counter came out and asked her to sign the Notice,
Release and Indemnification. Rutecki Dep. at 93. Even
though Plaintiff claims the employee referred to it as a
sign in sheet, the document explicitly identifies itself as
“The Greenbrier Notice, Release and Indemnification.”
Id. at 93. Plaintiff also claims that she only saw the third
page. Id. at 94. Again, even if this is true, page three of
the Notice, Release and Indemnification identifies itself in
the upper left corner in capital letters and says “PAGE
THREE” in the upper right corner. Def.’s Resp. to Pl.’s
Supplemental Reply to Def.’s Mot. for Summ. J ., at Ex.
D. In an attempt to overcome this fact, Plaintiff says
that the document was on a clipboard, but could not
recall if the top of the page was obscured by the clip. Id.
at 96. Regardless, immediately below Plaintiff’s printed
name and above her signature, is a paragraph that informs
her that by signing, she has read and understands the
Notice, Release and Indemnification. When asked if it was
her signature that appeared on the document, Plaintiff, a
practicing attorney, responded, “[t]hat is my signature.”
Id. at 99. Therefore, the evidence tends to show that
the Notice, Release and Indemnification was provided

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Rutecki v. CSX Hotel, Inc., Not Reported in F.Supp.2d (2007)

to Plaintiff for her signature, and no rational jury could
determine that Plaintiff was not presented with it.

*9 The Act and the circumstances of this case are
distinguishable from the statutes and cases cited by
Plaintiff in her memorandum. For example, in Murphy,
the defendant whitewater outfitter argued that a signed
waiver relieved it from its statutory duties. 412 S.E.2d at
504, 507. The court held that a participant could not waive
the statutory rights provided to him or her under a public
safety statute, and any such attempt is unenforceable
on the grounds of public policy. Id. at 509; see also
Johnson v. New River Scenic Whitewater Tours, Inc.,
313 F.Supp.2d 621, 631 (S.D.W.Va.2004) (Chambers, J.).
Here, a statement of liability limitation, restriction and
responsibility is required by the Act. The Greenbrier is
not suggesting that Plaintiff should not recover simply
because she signed a waiver. Rather, it argues, and the
Court holds, that it did not breach its duty to present her
with the appropriate statement mandated by the Act.

Furthermore, there is no evidence that even if the
Greenbrier breached this duty, the breach was causally
related to Plaintiff’s injuries. In her deposition, Plaintiff
merely stated that she would have “marked up” the
Notice, Release and Indemnification had she read it.
Rutecki Dep. at 109. This would have no effect on the
analysis. The Greenbrier’s duty is to present the statement
to the participant, and Plaintiff did not testify that she
would not have participated had she read it. There is
simply no evidence suggesting any causal relationship
between Plaintiff’s injury and any breach of this duty.

(4) Inspecting Equipment and Assuring it is in Proper
Working Condition and Safe
Although alleged in the negligence count, Plaintiff claims
that the Greenbrier “failed to provide safe and adequate
equipment for riders inexperienced in ‘English’ riding
styles.” Compl. ¶ 19. There is no dispute that Plaintiff
was provided with equipment that was in proper working

condition on the day of her accident. 17 In an attempt to
overcome this fact, Plaintiff argues that the Greenbrier
had a duty to provide her with additional equipment,
such as a pair of riding boots, pants, or gloves. However,
Plaintiff has produced no evidence that such equipment
was necessary for the ride she undertook. The Act only
requires that the horseman take reasonable measures to
assure that the equipment provided is in proper working

condition and safe for use. If the Greenbrier had failed
to provide Plaintiff with a piece of equipment that the
Greenbrier knew or should have known Plaintiff needed
in order to be safe, then there might be some basis for
liability. But Plaintiff has produced no evidence which
would indicate that the she was not adequately equipped
to keep her safe on the horseback ride.

Accordingly, Plaintiff has not put forth sufficient evidence
to establish that any breach of the Greenbrier’s statutory
duties under the Act was causally related to her injury,
and the Greenbrier is entitled to summary judgment with
respect to Count Two of her complaint.

c. Count Three-Gross Negligence
*10 Finally, Plaintiff has put forth no evidence that

the Greenbrier was grossly negligent and that its gross
negligence was the proximate cause of her injuries. West
Virginia law “recognizes a distinction between negligence,
including gross negligence, and wilful [sic], wanton, and
reckless misconduct.” Mandolidis v. Elkins Indus., 246
S.E.2d 907, 913 (W.Va.1970). While “[n]egligence conveys

the idea of heedlessness, inattention, [or] inadvertence,” 18

willful and wanton conduct “imports premeditation or
knowledge and consciousness that injury is likely to
result from the act done or from the omission to act.”
Mandolidis, 246 S.E.2d at 913 (quoting Stone v. Rudolph,
32 S.E.2d 742, 748 (W.Va.1944)). Willful and wanton are
words “used to signify a higher degree of neglect than
gross negligence.” Groves, 158 S.E.2d at 713. Therefore,
gross negligence is behavior somewhere between mere
inattention or inadvertence and conscious disregard that
injury is likely to result from one’s actions. The West
Virginia Supreme Court of Appeals has never explicitly
defined gross negligence, but it has interpreted Virginia
law, which repeatedly defines “gross negligence” as that
degree of negligence which shows “an utter disregard of
prudence, amounting to complete neglect of the safety
of another, such as to be shocking to reasonable men,”
Finney v. Finney, 125 S.E.2d 191, 193 (Va.1962), and the
“absence of slight diligence, or the want of even scant
care.” Colby v. Boyden, 400 S.E.2d 184, 189 (Va.1991).

The language used in Virginia accurately describes
behavior that falls between willful and wanton conduct
and simple negligence as defined by West Virginia law.
The Court’s inquiry therefore becomes whether Plaintiff
has put forth sufficient evidence to create a genuine issue

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Rutecki v. CSX Hotel, Inc., Not Reported in F.Supp.2d (2007)

of material fact as to whether the Greenbrier acted with an
absence of slight diligence or scant care and with an utter
disregard for prudence, amounting to complete neglect for
Plaintiff’s safety. See Finney, 125 S.E.2d at 193; Colby, 400
S.E.2d at 189.

Plaintiff has produced no evidence that what Mr. Diem
did during her trail ride constituted gross negligence. She
produced no affidavits, no deposition testimony, and no
expert opinion that Mr. Diem’s conduct even strayed from
what was reasonable under the circumstances, let alone to
such a degree as to show an utter disregard for prudence.

Further, there is nothing in the record that remotely
suggests that Mr. Diem’s behavior, even if it was gross
negligence, proximately caused Plaintiff’s injuries. What
is apparent when one reviews this case is that no one
seems to know what caused these horses to behave
in such an aberrant fashion. Proximate cause in West
Virginia is defined as the “last negligent act contributing
to the injury and without which the injury would not
have occurred.” Spencer v. McClure, 618 S.E.2d 451,
455 (W.Va.2005) (citations omitted). “ ‘Proximate cause’
must be understood to be that cause which in actual
sequence, unbroken by any independent cause, produced
the wrong complained of, without which the wrong would
not have occurred.” Id. (citations omitted). “The question
of proximate cause is ordinarily a factual one,” and is
usually for the jury to determine “when the evidence
pertaining to such issues is conflicting or where the facts,
even though undisputed, are such that reasonable men
may draw different conclusions from them.” Anderson v.
Moulder, 394 S.E.2d 61, 73-74 (W.Va.1990).

*11 In this case, even if the Court were to conclude
that there was sufficient evidence that the Greenbrier was
grossly negligent, there is no proof whatsoever in the
record that Mr. Diem’s actions or omissions contributed
to Plaintiff’s injuries, and would not have occurred absent
gross negligence. Regardless of what Mr. Diem may
or may not have done, the intervening event of the

inexplicable behavior of the two horses appears to be
the cause of this accident. Because of Plaintiff’s failure to
provide such evidence, reasonable persons would not be
able to “draw different conclusions,” even when viewing
the evidence in a light most favorable to Plaintiff, and
summary judgment is appropriate on the gross negligence
count of Plaintiff’s complaint. See Anderson, 394 S.E.2d
at 74.

IV. CONCLUSION
This Court echoes the words of the court in Hommel
v. Benshoff, 682 N.Y.S.2d 546, 549 (N.Y.Sup.Ct.1998),
“there is no dispute that a horse is a powerful and
sometimes unpredictable animal….” For this reason, the
West Virginia Legislature enacted the West Virginia
Equestrian Activities Responsibility Act with a purpose
to prevent liability for risks that are nearly impossible to
eliminate for those who operate equestrian businesses like
the Greenbrier. To do so, the legislature set forth duties
applicable to these businesses. The Act will protect these
establishments from liability if they adhere to the duties set
forth. However, a breach of the duties that causally relates
to a plaintiff’s injuries will result in liability. In this case,
Plaintiff has not provided the Court with any evidence that
a breach of the Greenbrier’s statutory duties was causally
related to her injury, nor has she made a case for gross
negligence.

For the reasons stated herein, the Greenbrier’s Motion for
Summary Judgment [Docket 35] is GRANTED, and the
trial date scheduled for January 17, 2007 is VACATED.
The Court DIRECTS the Clerk to remove this action
from the Court’s docket. Further, the Court DIRECTS
the Clerk to send a copy of this Memorandum Opinion to
counsel of record and any unrepresented party.

All Citations

Not Reported in F.Supp.2d, 2007 WL 192514

Footnotes
1 Accordingly, the Greenbrier’s motions to dismiss [Docket 197 & 201 ] are DENIED AS MOOT.
2 The exact date is not clear from the record.
3 Plaintiff testified that when she arrived at the Greenbrier, she proceeded to cancel her originally scheduled horse ride for

September 12, but rescheduled her riding reservation for September 13. Rutecki Dep. at 72-73.
4 The types of rides offered at the Greenbrier are carriage rides, group rides, lessons, and private rides. Diem Dep. at 15.

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Rutecki v. CSX Hotel, Inc., Not Reported in F.Supp.2d (2007)

5 Mr. Diem had never ridden Thunder prior to September 13, 2004. Diem Dep. at 29.
6 In Mr. Diem’s deposition, he states that he picked the horse named Trump for Plaintiff “because she said she had ridden.”

Diem Dep. at 40. However, when asked whether he “specifically ask[ed] [Plaintiff] what her level of experience was,
whether she had ridden before …”, Mr. Diem responded, “I feel sure I did, that’s something we do on a regular basis,
you know, that’s one of the first questions.” Id. at 68. Contrary to what Mr. Diem stated, Plaintiff testified to the following
during her deposition:

Q: Had you at any point yet advised [Mr. Diem] whether you did or did not have any experience on a horse?
A: We had no conversation. He just put me up.
Rutecki Dep. at 115.
However, Plaintiff stated that when she originally called for her riding reservation from Florida that it was “possible”
that she told the Greenbrier she had ridden before. Id. at 74. Thus the record is unclear as to whether Mr. Diem knew
Plaintiff had ridden prior to selecting her horse. Of course, the evidence must be taken in the light most favorable to
the non-movant.

7 According to Mr. Diem, “Trump was a horse that [the Greenbrier] normally use[d] for private rides. He was a good all
around horse. If people could ride, that was fine. He responded well if they just wanted to walk. Trump had no problem
with just walking.” Diem Dep. at 40. The Greenbrier also suggests in its memorandum that “Trump has been ridden as
a guest horse without injury for upwards of ten (10) years.” Def.’s Reply in Supp. of its Mot. for Summ. J., at 13 (citing
Diem Dep. at 18, 46).

8 Plaintiff testifies that she only saw the third page of the Notice, Release and Indemnification. Rutecki Dep. at 94. Even
so, she was presented with and signed the page that had the headline “Notice, Release and Indemnification.” This page
also included the following paragraph:

I have read and understand this Notice, Release and Indemnification and I hereby acknowledge that West Virginia
law governs my participation in this activity. In addition and not in limitation of the foregoing, I hereby assume all
the risk of participating in an equestrian activity provided by The Greenbrier and release and will hold harmless
The Greenbrier, its officers, employees and agents, from any and all liability, actions, causes of actions, debts,
claims and demands of every kind and nature whatsoever which I now have or which I may have arising out of or in
connection with my participation in equestrian activities provided by The Greenbrier. My signature hereon shall serve
as a release, indemnification and assumption of the risk on behalf of myself, my heirs, executors and administrators
and for and on behalf of any minors acompanying [sic] me.

Def.’s Resp. to Pl.’s Supplemental Reply to Def.’s Mot. for Summ. J., at Ex. D. It is also worth noting that the page
Plaintiff signed indicated on its face that it was the third page.

9 Plaintiff’s original counsel filed a motion to withdraw on June 8, 2006, which was granted on June 28, 2006. The Court
notes that throughout the course of this litigation, Plaintiff was a practicing attorney in Florida.

10 A horseman is defined:
[A]s any individual, sole proprietorship, partnership, association, public or private corporation, in the United States
or any federal agency, this state or any political subdivision of this state, and any other legal entity which engages,
with or without compensation, in organizing, promoting, presenting or providing equestrian activities or in providing
facilities for equestrian activities.

W. VA.CODE § 20-4-2(2). Neither party contests that the Greenbrier is a “horseman” as defined by the statute.
11 It is undisputed that Plaintiff was a “participant” as defined by the Act. See W. VA.CODE § 20-4-2(4).
12 Plaintiff has neither claimed nor argued that the Greenbrier intentionally injured her.
13 See, e.g., Muller et al. v. English, 472 S.E.2d 448, 450 (Ga.Ct.App.1996) (plaintiff injured when she was kicked by

defendant’s horse); Amburgey v. Sauder, 605 N.W.2d 84, 86 (Mich.Ct.App.1999) (plaintiff injured when bit by defendant’s
horse).

14 See, e.g., Caroline Finch & Graeme Watt, Locking the Stable Door: Preventing Equestrian Injuries, 22 SPORTS
MEDICINE 187-97 (1996), available at http://www.monash.edu.au/muarc//reports/muarc103.pdf (citing studies that
report approximately 75% of the time the “mechanism” for equestrian related injuries is a fall).

15 Plaintiff did not allege in her complaint that the Greenbrier failed to make known any dangerous condition as to land or
facilities in its control that it knew or through the exercise of due diligence could know, by advising her in writing or by
conspicuously posting warning signs upon the premises. See W. VA.CODE § 20-4-3(3). Because of her failure to plead
this breach through amendment or proffering evidence to support such a claim, the Court will not consider Plaintiff’s
argument that the Greenbrier breached this duty. See FED.R.CIV.P. 15. Pursuant to Rule 15, pleadings may be amended

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 9

Rutecki v. CSX Hotel, Inc., Not Reported in F.Supp.2d (2007)

by leave of court or to conform with the evidence presented at trial. Plaintiff has produced no evidence that the Greenbrier
knew or should have known of any dangerous conditions of the land, therefore an amendment is not warranted.

16 The Greenbrier argues that the duties under this subsection only exist prior to the initiation of the equestrian activity.
However, courts in other jurisdictions have noted that these duties are ongoing and do not end after a participant mounts
his or her horse. See Fielder v. Academy Riding Stables, 49 P.3d 349, 352 (Colo.App.2002) (finding that a defendant
breached this duty when it became apparent that while the plaintiff was on the horse, her ability did not enable her to safely
manage it); see also Hendricks v. JAFI, Inc., No. 966038, 1999 WL 1336069, at *1 (Mass .Super.Jan. 20, 1999) (finding
a genuine issue of material fact existed as to whether the defendant failed to make reasonable efforts to determine the
plaintiff’s ability between the time plaintiff mounted her horse and the accident). Although the Court does not expressly
decide this legal point, the Court has considered the events both before and after the ride began.

17 When asked by the Greenbrier to “[a]dmit that the plaintiff experienced no difficulty or trouble with the bridle, saddle,
girth, stirrup and leather and irons during the trail ride at The Greenbrier on September 13, 2004,” Plaintiff admitted, and
added, “[b]y way of further answer, there were no malfunctions with such equipment.” Def.’s Resp. to Pl.’s Supplemental
Reply to Def.’s Mot. for Summ. J., at Ex. B. She also indicated that she was provided with a helmet that did not cause
her any difficulty. Id.

18 Groves v. Groves, 158 S.E.2d 710, 713 (W.Va.1968).

End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works.

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 10

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