Affirmed and Opinion filed May 31, 2012.




                                        In The

                         Fourteenth Court of Appeals
                                ___________________

                                 NO. 14-11-00376-CV
                                ___________________

                           BRENDA YOUNG, Appellant,

                                          V.

             TISA MCKIM AND JACQUELINE MCKIM, Appellees.


                      On Appeal from the 270th District Court
                              Harris County, Texas
                        Trial Court Cause No. 2010-24816


                                 O P I N I O N

      This is an appeal from the granting of a traditional motion for summary judgment in
favor of the appellees, Tisa and Jacqueline McKim. We affirm.

                                           I

      In August 2009, Tisa McKim went to the Houston SPCA with a friend who was
interested in adopting a horse. One of the horses at the SPCA was named Jasper. Before
the SPCA acquired Jasper, he had been extremely malnourished. He was still visibly
underweight when McKim first saw him at the SPCA. After leaving the SPCA, McKim
called her daughter Jacqueline, a college student in Nebraska, to ask if she would like to
adopt Jasper. Jacqueline ―who goes by “Jackie”―said she would. So McKim returned
the next day and adopted Jasper.

       During the adoption process, the SPCA revealed little about Jasper’s past. As
McKim acknowledged in her deposition, a horse rescued from mistreatment is “an
unknown entity.” The SPCA did inform McKim that Jasper’s former owner had nearly
starved him on two occasions. But the SPCA also reported that since his rescue, Jasper
had behaved in a “gentlemanly” manner.

       Pursuant to the SPCA’s adoption policy, Jasper was gelded before he was turned
over to Jackie. He then stayed at the SPCA for about a week to recover from the
procedure. Once the SPCA released Jasper, McKim arranged to board him at Ravensway
Stables where McKim already boarded another horse named Butch. At Ravensway,
Jasper occupied a paddock by himself so that he could eat without competing with other
horses for food. Jasper was still 400 to 500 pounds underweight when he arrived at
Ravensway. Once he regained his weight, Jasper was placed in a paddock with other
horses.

       Like McKim, Brenda Young also lived near Ravensway Stables. Young and her
teenage son often cared for horses kept at Ravensway, and had posted a flyer at Ravensway
advertising their availability to assist owners with the care of their horses. Young began
caring for Jasper in November of 2009. At that point, she had worked with about twelve
or thirteen horses over the previous five years.

       Young occasionally cared for both Jasper and Butch. McKim paid Young $2.50
each time she fed the horses and $3.00 each time she cleaned out the horses’ stalls.1
Because Jasper was recovering from malnourishment, McKim provided very precise

       1
         While McKim agreed to use Young to take care of the horses, it was not an exclusive
arrangement. Other folks also sometimes cared for the horses. McKim used a sign-up sheet to keep track
of who was caring for the horses and what they had done.
                                                  2
instructions on what to feed him. But beyond requiring that the horses be fed twice a day,
she did not specify the exact timing of the feedings. It was also understood that it was up
to the person feeding the horses to decide, based on the weather, whether to put the horses
out in the paddock or leave them in the barn.

       The record shows that both Young and McKim believe that horses that have been
mistreated can have “flashbacks” of that mistreatment. According to McKim, these
flashbacks can occur without any warning.          McKim also testified, without further
clarification, that a recently gelded horse’s behavior can be somewhat unpredictable.

       In her deposition, Young testified that when she started caring for Jasper, he did not
appear to have been malnourished. She also testified that aside from the incident made the
basis of this case, Jasper never did anything to cause her concern. Young testified that
McKim never told her that Jasper had been adopted from the SPCA, was a rescue horse,
had been malnourished, or had been recently gelded. According to Young, McKim
should have warned her of these facts. Had she known Jasper had been adopted from the
SPCA, Young testified she would not have agreed to care for him.

       McKim acknowledged in her deposition that she did not “remember having a
face-to-face, one-on-one, sole-content conversation about Jasper with [Young].” She
likewise did not tell Young that Jasper had been recently gelded. But McKim also
testified that it was her “impression everybody knew [Jasper] came from the SPCA.”
McKim recalled telling “everybody [who] was around him that we didn’t know anything
about him and we didn’t know what kind of temperament . . . he had.” McKim also
“figured [Young] knew what she was doing” and remembered telling Young to “be
careful” and “be on your guard around Jasper for a little while.”

       On January 3, 2010, under instructions from McKim, Young went to Ravensway to
feed Jasper and Butch. Young decided to take him out to paddock. Jasper appeared
normal and Young noticed nothing unusual about his behavior. As Young led Jasper, she


                                             3
encountered another boarder at the stable and stopped to talk. While they talked, Jasper
grazed beside Young. Then, suddenly, Jasper turned and kicked Young, injuring her.

       After Young sued the McKims for negligence, they moved for summary judgment.
As their basis, the McKims relied on the version of the Equine Act, chapter 87 of the Texas
Civil Practice and Remedies Code, then in effect. See Act of Sept. 1, 2001, 77th Leg.,
R.S., ch. 1108, 2001 Tex. Gen. Laws 2457–2459 (amended 2011) (current version at Tex.
Civ. Prac. & Rem. Code Ann. § 87.001 et seq (West 2011)). The McKims argued that
under the Equine Act, they were immune from liability because Young’s alleged injuries
arose from risks inherent in an equine activity. The trial court agreed and granted
summary judgment in the McKims’ favor. This appeal followed.

                                             II

       In a single issue Young contends the trial court erred when it granted the McKims’
motion for summary judgment based on the protection from liability found in the Equine
Act. Act of Sept. 1, 2001, 77th Leg., R.S., ch. 1108, 2001 Tex. Gen. Laws 2458 (amended
2011) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 87.003)).

                                             A

       Although the McKims filed both no-evidence and traditional motions for summary
judgment, the trial court specifically granted only the traditional motion. In a traditional
summary-judgment motion, the movant must show there is no genuine issue of material
fact. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). If there is no
genuine issue of material fact, summary judgment should issue as a matter of law. Haase
v. Glazner, 62 S.W.3d 795, 797 (Tex. 2001). Once a defendant establishes its right to
summary judgment, the burden then shifts to the plaintiff to come forward with
summary-judgment evidence raising a fact issue. Centeq Realty, Inc. v. Siegler, 899
S.W.2d 195, 197 (Tex. 1995). On appeal, we review the entire summary-judgment record



                                             4
in the light most favorable to the non-movant. City of Keller v. Wilson, 168 S.W.3d 802,
824–25 (Tex. 2005).

                                                B

        The Equine Act in effect at the time of the incident underlying this appeal was found
where it still resides today―in chapter 87 of the Texas Civil Practice and Remedies Code.
Former section 87.003 of the Equine Act provides, in pertinent part:

                Except as provided by Section 87.004, any person . . . is not liable for
        . . . damages [for personal injury that] results from the dangers or conditions
        that are an inherent risk of an equine activity . . . , including:
                (1) the propensity of an equine . . . animal to behave in ways that may
        result in personal injury or death to a person on or around it;
              (2) the unpredictability of an equine . . . animal’s reaction to sound, a
        sudden movement, or an unfamiliar object, person, or other animal; . . . .

Loftin v. Lee, 341 S.W.3d 352, 355 (Tex. 2011) (quoting Act of Sept. 1, 2001, 77th Leg.,
R.S., ch. 1108, 2001 Tex. Gen. Laws 2458 (amended 2011)). “The statutory text reflects
an expansive view of ‘inherent risk.’” Loftin, 341 S.W.3d at 356.

        The Equine Act also provides exceptions to the limitation of liability found in
former section 87.003. Former section 87.004 of the Equine Act provides, in pertinent
part:

              A person . . . is liable for . . . damage . . . caused by a participant in an
        equine activity if: . . .
                (2) the person provided the equine . . . animal . . . and the person did
        not make a reasonable and prudent effort to determine the ability of the
        participant to engage safely in the equine activity . . . and determine the
        ability of the participant to safely manage the equine animal . . . , taking into
        account the participant’s representations of ability; . . .
                (4) the person committed an act or omission with wilful or wanton
        disregard for the safety of the participant and that act or omission caused the
        injury. . . .



                                                5
Id. (quoting Act of Sept. 1, 2001, 77th Leg., R.S., ch. 1108, 2001 Tex. Gen. Laws
2458–59 (amended 2011) (current version at Tex. Civ. Prac. & Rem. Code Ann. §
87.004)).   Section 87.004(2) applies only when the failure to make the required
determination is itself the cause of the damage. Loftin, 341 S.W.3d at 359. Making a
reasonable and prudent effort to determine the ability of a participant to safely engage in an
equine activity under section 84.004(2) does not require a formal, searching inquiry by the
person providing the equine animal. Id.

                                              C

       Within her single appellate issue, Young raises five sub-points, which we
consolidate into four.

                                              1

       In her first sub-point, Young relies on the statement in Dodge v. Durdin that “[t]he
legislative history . . . suggests that the [l]egislature enacted the Equine Act to limit the
liability of equine sponsors to tourists and other consumers of equine activities.” Dodge v.
Durdin, 187 S.W.3d 523, 529 (Tex. App.—Houston [1st Dist.] 2005, no pet.). Based on
this, Young argues she was not a participant in an equine activity at the time she was kicked
by Jasper because she was not a consumer of equine activities like a tourist engaging in a
recreational equine activity. We disagree that only consumers of equine activities qualify
as participants in equine activities as defined in the Equine Act.

       Resolution of a statutory-construction issue must begin with an analysis of the
statute itself. Fitzgerald v. Advanced Spine Fixation Sys. Inc., 996 S.W.2d 864, 865–66
(Tex. 1999); Cail v. Serv. Motors, Inc., 660 S.W.2d 814, 815 (Tex. 1983). We must
interpret the statute in a manner that gives effect to the plain meaning of the statute’s words
and effectuates the legislature’s intent. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex.
2002). We should read every word, phrase, and expression as if it were deliberately
chosen, and presume words excluded from the statute were excluded purposefully. Ward

                                              6
Cnty. Irrigation Dist. No. 1 v. Red Bluff Water Power Control Dist., 170 S.W.3d 696, 700
(Tex. App.—El Paso 2005, no pet.). Where the language of the statute is clear and
unambiguous, it should be given its common everyday meaning, without resort to rules of
statutory construction or extrinsic aids. Cail, 660 S.W.2d at 815. Rules of construction
and other extrinsic aids may not be used to create an ambiguity in a statute. Fitzgerald,
996 S.W.2d at 866.

       The Equine Act is a comprehensive limitation of liability for equine activities of all
kinds. Loftin, 341 S.W.3d at 355. The Equine Act applies to all “participants.” Id. A
“participant” in an equine activity is defined in the statute as “a person who engages in the
activity, without regard to whether the person is an amateur or professional or whether the
person pays for the activity or participates in the activity for free.” Act of Sept. 1, 2001,
77th Leg., R.S., ch. 1108, 2001 Tex. Gen. Laws 2458 (amended 2011) (current version at
Tex. Civ. Prac. & Rem. Code Ann. § 87.001(9)). Under the statute, “‘engages in an
equine activity’ means riding, handling, training, driving, assisting in the medical
treatment of, being a passenger on, or assisting a participant or sponsor with an equine
animal.” Act of Sept. 1, 2001, 77th Leg., R.S., ch. 1108, 2001 Tex. Gen. Laws 2458
(amended 2011) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 87.001(1)).

       We find nothing in the language of the statute mandating that its limitation of
liability applies only to consumer-oriented equine activities. For example, the statute
specifically includes as a category “assisting in the medical treatment of” an equine animal.
Id. This activity does not involve tourists or other consumers of equine activities. In
addition, the Corpus Christi court of appeals has determined that an independent contractor
leading a horse to a paddock was a participant in an equine activity covered by section
87.003 of the Equine Act. See Johnson v. Smith, 88 S.W.3d 729, 732 (Tex. App.—Corpus
Christi 2002, no pet.) (holding that the plaintiff was a participant as defined in the statute
but also holding that there was a fact issue on whether one of the exceptions found in



                                              7
section 87.004 of the Equine Act applied). Because the coverage of the Equine Act is not
limited to consumers of equine activities, we overrule Young’s first sub-point on appeal.

                                             2

       In her second and third sub-points, Young contends the trial court erred in granting
the McKims’ motion for summary judgment because she was an employee of the McKims,
not an independent contractor, and therefore she was not a participant under the Equine
Act. In support of this contention, Young once again relies on the Dodge opinion. In that
case, the First Court of Appeals held that an employee covered by the Workers’
Compensation Act who was bitten by a horse was not a participant in an equine activity
under the Equine Act. Dodge, 187 S.W.3d at 530. The court reasoned that if an
employee were determined to be a participant in an equine activity, it would abrogate
employer duties delineated in the Workers’ Compensation Act. Id.

       The test to determine whether a worker such as Young is an employee rather than an
independent contractor is whether the employer has the right to control the progress,
details, and methods of operations of the work. Limestone Prods. Distribution, Inc. v.
McNamara, 71 S.W.3d 308, 312 (Tex. 2002). An employer controls not merely the end
sought to be accomplished, but also the means and the details of its accomplishment. Id.
We measure the right to control by considering: (1) the independent nature of the worker’s
business; (2) the worker’s obligation to furnish necessary tools, supplies, and materials to
perform the job; (3) the worker’s right to control the progress of the work except about the
final results; (4) the time for which the worker is employed; and (5) the method of
payment, whether by unit of time or by the job. Id.

       While McKim provided detailed instructions on exactly what to feed Jasper and
how often to feed him each day, the details of how and when Young accomplished that task
were left up to her. The decision of whether to place Jasper into a paddock was also left to
Young. Moreover, Young did not care for Jasper on a daily basis, but only on an
as-needed basis determined by McKim’s schedule. And Young was not the exclusive
                                             8
person McKim paid to feed Jasper. The summary-judgment evidence shows that McKim
paid at least two other people to feed Jasper. Also, the evidence establishes that Young
operated a business independent of McKim. Young advertised her business at Ravensway
and she provided care for other horses stabled there. Finally, the evidence establishes that
McKim paid Young per feeding and stall cleaning, not based on the amount of time Young
spent performing those tasks.           Applying the right-of-control test, we hold that the
summary-judgment evidence conclusively shows that Young was an independent
contractor when Jasper kicked her. See id. (“Although some of these factors may not,
alone, be enough to demonstrate a worker’s independent-contractor status, together they
provide conclusive summary-judgment evidence that Mathis was an independent
contractor and not Limestone’s employee when the accident occurred.”). We overrule
Young’s second and third sub-points.2

                                                    3

        In her fourth sub-point, Young contends the trial court erred when it granted the
McKims’ motion for summary judgment because there are fact issues on the applicability
of two of the exceptions to immunity found in former section 87.004 of the Equine Act.
We address each contention in turn.

        Under former section 87.004(2) of the Equine Act, a person who provides an equine
animal has no immunity under former section 87.003 unless he has made:

        a reasonable and prudent effort to determine the ability of the participant to
        engage safely in the equine activity . . . and determine the ability of the
        participant to safely manage the equine . . . animal, taking into account the
        participant’s representations of ability.
Act of Sept. 1, 2001, 77th Leg., R.S., ch. 1108, 2001 Tex. Gen. Laws 2458 (amended 2011)
(current version at Tex. Civ. Prac. & Rem. Code Ann. § 87.004(2)). Former section
        2
          In her list of the sub-points contained within her issue on appeal, Young states her second
sub-issue as: “None of the cases cited by the [McKims] approved of or involved the granting of a motion for
summary judgment.” Young does not separately brief this sub-point; therefore, she has waived it. See
Tex. R. App. P. 38.1(i).
                                                    9
87.004(2) applies only when the failure to make the required determination is itself the
cause of the damage. Loftin, 341 S.W.3d at 359. Making a reasonable and prudent effort
to determine the ability of a participant to safely engage in an equine activity under former
section 84.004(2) does not require a formal, searching inquiry by the person providing the
equine animal. Id. Young asserts that the McKims failed to conclusively establish that a
reasonable and prudent effort was made to determine whether she could safely engage in
the care of a previously abused or gelded horse.3

        Here, the summary-judgment evidence establishes that Young was self-employed
and operating a part-time business caring for horses stabled at Ravensway. The evidence
also establishes that Young had been conducting this business since 2004 and had cared for
twelve to thirteen horses on a continuing basis during that time period. In addition, Young
posted advertisements at Ravensway that she was available and qualified to assist in the
care of horses. Because Young had advertised her business at Ravensway, and held
herself out as qualified to care for horses, we hold that former section 87.004(2) does not
extinguish the McKims’ immunity under former section 87.003. See Loftin, 341 S.W.3d
at 359 (holding that when the owner of the horse already generally knows the participant’s
experience level in dealing with horses, former section 87.004(2) does not require a formal,
searching inquiry into a participant’s ability to safely manage the equine).

        Next, Young raises the applicability of former section 87.004(4) of the Equine Act.
Under that provision, the act provides no immunity when a defendant commits “an act or
omission with wilful or wanton disregard for the safety of the participant and that act or
omission cause[s] the injury.” Act of Sept. 1, 2001, 77th Leg., R.S., ch. 1108, 2001 Tex.


        3
           The parties disagree as to which party has the burden of proof on this issue. Young asserts the
McKims were required to conclusively prove each element of their Equine Act affirmative defense,
including the inapplicability of any of the exceptions found in former section 87.004. Conversely, the
McKims assert former section 87.004 is an affirmative defense that places the burden on Young to produce
sufficient summary-judgment evidence to raise a fact issue on each element of the defense. Because we
conclude the summary-judgment evidence conclusively establishes that the exceptions found in former
section 87.004 do not apply, we need not resolve this question.
                                                   10
Gen. Laws 2459 (amended 2011) (current version at Tex. Civ. Prac. & Rem. Code Ann. §
87.004(4)). According to Young, this exception was triggered when McKim failed to
inform her that Jasper was a rescue horse that had been mistreated and that he had been
gelded several months before the incident. Under the Equine Act, wilful and wanton
disregard means “that entire want of care which would raise the belief that the act or
omission complained of was the result of a conscious indifference to the right or welfare of
the person or persons to be affected by it.” Little v. Needham, 236 S.W.3d 328, 334 (Tex.
App.—Houston [1st Dist.] 2007, no pet.). It is synonymous with gross negligence. Id.

       Specifically, Young points to the testimony in the summary-judgment record that
horses that have been malnourished in the past can experience “flashbacks” of that
treatment. We conclude this evidence is insufficient to create a fact issue on the fourth
exception. The record contains no explanation as to what exactly a “flashback” is,
particularly as experienced by a horse. Likewise, there is no explanation as to why the
potential for such a flashback obligates McKim to reveal that Jasper had previously been
malnourished to someone who holds herself out as qualified to care for horses.

       Young also argues that McKim should have told her that Jasper had been freshly
gelded when McKim adopted him. As Young points out, McKim testified that freshly
gelded horses’ behavior is sometimes “questionable.”          But the summary-judgment
evidence shows that Jasper was well-behaved both at the SPCA and after McKim adopted
by him.

       We conclude the summary-judgment evidence does not create a genuine issue of
material fact on the exception found in former section 87.004(4). Young has not shown
how the McKims’ alleged failure to disclose Jasper’s previous abuse or that he had been
freshly gelded could amount to wilful or wanton disregard for her safety. We overrule
Young’s fourth sub-point.




                                            11
                                                      4

        In her fifth sub-point, Young asserts the trial court erred when it granted summary
judgment in favor of the McKims because they failed to prove as a matter of law that they
posted the warning signs required by former section 87.005 of the Equine Act. 4 In
response, the McKims contend Young waived this argument on appeal because she did not
present it in her summary-judgment response. We agree with the McKims.

        To preserve an argument against the granting of a motion for summary judgment for
appellate review, the non-movant must expressly present that argument to the trial court
within its written response to the motion. Priddy v. Rawson, 282 S.W.3d 588, 597 (Tex.
App.—Houston [14th Dist.] 2009, pet. denied). Here, Young did not include in her
summary-judgment response any argument that the trial court should deny the McKims’
motion because they failed to post the warnings required by former section 87.005 of the
Equine Act. Young failed to preserve this issue for appellate review. We overrule Young’s
fifth sub-point on appeal.




        4
            Former section 87.005 of the Equine Act provides in pertinent part:
        (a)      An equine professional shall post and maintain a sign that contains the warning
        contained in Subsection (c) if the professional manages or controls a stable, corral, or arena
        where the professional conducts an equine activity. The professional must post the sign in
        a clearly visible location on or near the stable, corral, or arena.

        (b)      An equine professional shall include the warning contained in Subsection (c) in
        every written contract that the professional enters into with a participant for professional
        services, instruction, or the rental of equipment or tack or an equine animal. The warning
        must be included without regard to whether the contract involve equine activities on or off
        the location or site of the business of the equine professional. The warning must be
        clearly readable….

Act of Sept. 1, 2001, 77th Leg., R.S., ch. 1108, 2001 Tex. Gen. Laws 2458 (amended 2011) (current version
at Tex. Civ. Prac. & Rem. Code Ann. § 87.005).
                                                     12
                                            ***

       Having overruled each of Young’s sub-points brought within her single issue on
appeal, we affirm the trial court’s final judgment.




                                          /s/     Jeffrey V. Brown
                                                  Justice



Panel consists of Chief Justice Hedges and Justices Brown and Christopher.




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