The Indiana Supreme Court has split over the denial of transfer in a case involving a horseback riding injury, with Justice Steven David publishing a dissent expressing concern that the “pendulum has swung too far” in sports injury cases.
Chief Justice Loretta Rush and Justices Mark Massa and Geoffrey Slaughter each voted to deny transfer in Kathleen Burdick; Bruce Burdick v. Julia Romano, 19A-CT-02739, while Justice Christopher Goff joined David’s dissent.
The Lake County case involves a private horse training arena in Lowell known as Serenity Farms. Kathleen Burdick was riding her horse, Chip, at the arena when Julie Romano dismounted her horse, Sheza, without tying her up.
Romano returned with a barrel for Sheza to use in a trick, but according to Burdick, the horse spooked. Then, Burdick said, Sheza — who was allegedly known for being aggressive — kicked Burdick under the chin, resulting in a broken shoulder and a brain injury.
At the ensuing negligence trial, the Lake Circuit Court declined to read Burdick’s final instructions on premises liability, negligence, duty and reasonable care. Instead, relying on Pfenning v. Lineman, 947, N.E.2d 392 (Ind. 2011), the trial court read Romano’s instruction on sporting event injuries, as well as instructions on incurred risk and inherent risks of equine activities.
The Indiana Court of Appeals in May affirmed the trial court’s decision on the jury instructions, agreeing with Romano the case involved a “sporting activity” requiring a showing of recklessness, not just negligence. The three majority justices likewise upheld the trial court’s instructions ruling on Thursday, letting those rulings stand.
In his dissent, however, David wrote that Burdick’s allegations did not arise from a sporting activity considered under Pfenning. Instead, he likened the instant case to a classic “dog bite” case.
“In those cases, we presume dogs are harmless, but that presumption may be overcome by ‘evidence of a known vicious or dangerous propensity,’” David wrote, citing Cook v. Whitsell-Sherman, 796 N.E.2d 271, 275 (Ind. 2003). “Under the common law, dog owners that are aware of these propensities are required to use reasonable care under the circumstances to prevent the animal from causing harm. Unless the legislature has applied a different standard to a class of victims … courts have consistently applied an ordinary negligence standard in this context.”
Like dogs, horses are considered domestic animals, David continued. Thus, he would hold that the “reasonable care to prevent injury” standard applies here, not the “sporting events” standard.
“To be sure, I take no issue with the precedent established by Pfenning and its progeny. These opinions are well-reasoned and present no need of reconsideration at this time. But none of them involved domestic animals,” he wrote.
“My ultimate concern is that (the) pendulum has swung too far: The ‘sports activity’ standard has started to encompass activities that should remain outside its parameters. I believe this case is a prime example,” David, joined by Goff, concluded. “Again, the parties were riding horses — a domestic animal – in a private arena. There were no sponsored events taking place and there were no classes being taught.
“To me, these factors indicate the Burdicks’ remedy lies in ordinary negligence similar to a dog bite case and not a heightened sports activity standard. Therefore, I believe the trial court erred when it refused to give the Burdicks’ tendered instruction on reasonable care.”
The dissenting justices would grant transfer and remand for a new jury trial.