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Dullmaier v. Xanterra Parks & Resorts

United States Court of Appeals, Tenth Circuit

February 27, 2018

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


         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." Wyo. Stat. Ann. § 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.


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


         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 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 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 "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. Dullmaier was eventually airlifted to a hospital in Billings, Montana, where he died from his injuries.


         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"), Wyo. Stat. § 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.

         Ms. Dullmaier now appeals the district court's summary-judgment order and its cost award.


         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." Fed.R.Civ.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 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)).


         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. ...

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