THERESE DULLMAIER, as the Wrongful Death Representative of Karl-Heinz Phillip Dullmaier, Plaintiff - Appellant,
XANTERRA PARKS & RESORTS; JOHN DOES, I-IV, Defendants - Appellees.
from the United States District Court for the District of
Wyoming (D.C. No. 2:14-CV-00181-SWS)
R. Bosch and Mary Alison Floyd, Law Offices of Jerry Bosch,
LLC, Wilson, Wyoming, for Plaintiff-Appellant.
P. Bradford, Bradford, Ltd, Denver, Colorado, David R. Fine,
and Maxwell N. Shaffer, Holland & Knight, LLP, Denver,
Colorado, for Defendants-Appellees.
BRISCOE, HARTZ, and HOLMES, Circuit Judges.
HOLMES, CIRCUIT JUDGE.
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).
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.
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.
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
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
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
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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
Dullmaier now appeals the district court's
summary-judgment order and its cost award.
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."
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).
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)).
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. ...