`                               NO. 12-07-00143-CV

                          IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

JANICE LEE AND BOB LEE,                          §   APPEAL FROM THE 159TH
APPELLANTS

V.                                               §   JUDICIAL DISTRICT COURT OF

TERRY LOFTIN,
APPELLEE                                         §   ANGELINA COUNTY, TEXAS


                                            OPINION
       Janice Lee and her husband, Bob Lee, appeal the trial court’s order granting summary
judgment in a lawsuit brought by the Lees against Terry Loftin. The Lees raise six issues on appeal.
We reverse and remand.

                                          BACKGROUND
       The Lees filed a lawsuit against Loftin for injuries Janice Lee sustained while riding one of
Loftin’s horses on a trail ride with Loftin. Loftin filed a traditional motion for summary judgment,
arguing that chapter 87 of the Texas Civil Practice and Remedies Code barred the Lees’ lawsuit. The
trial court granted Loftin’s motion by written order. This appeal followed.

                                      SUMMARY JUDGMENT
       In their first issue, the Lees assert that the summary judgment evidence did not warrant the
trial court’s grant of summary judgment under chapter 87. Loftin asserts, as she did at summary
judgment, that section 87.003 of chapter 87 precludes liability for the damages incurred as a result
of Janice Lee’s injury.
Standard of Review
        Rule 166a(c) governs traditional motions for summary judgment and provides as follows:

        M otion and Proceedings Thereon. The motion for summary judgment shall state the specific
        grounds therefor. . . . The judgment sought shall be rendered forthwith if (i) the deposition transcripts,
        interrogatory answers, and other discovery responses referenced or set forth in the motion or response,
        and (ii) the pleadings, admissions, affidavits, stipulations of the parties, and authenticated or certified
        public records, if any, on file at the time of the hearing, or filed thereafter and before judgment with
        permission of the court, show that, except as to the amount of damages, there is no genuine issue as
        to any material fact and the moving party is entitled to judgment as a matter of law on the issues
        expressly set out in the motion or in an answer or any other response. . . .


TEX . R. CIV . P. 166a(c).
        We review a trial court’s grant of summary judgment de novo. Mid-Century Ins. Co. of Tex.
v. Ademaj, 243 S.W.3d 618, 621 (Tex. 2007). Generally, when conducting a de novo review, a
reviewing court exercises its own judgment and redetermines each issue of fact and law. Quick v.
City of Austin, 7 S.W.3d 109, 116 (Tex. 1998). However, in the context of a summary judgment,
we must examine the entire summary judgment record in the light most favorable to the nonmovant,
indulging every reasonable inference and resolving any doubts against the motion. Yancy v. United
Surgical Partners Int'l, Inc., 236 S.W.3d 778, 782 (Tex. 2007).
        For a party to prevail on a traditional motion for summary judgment, it must conclusively
establish the absence of any genuine issue of material fact and that it is entitled to judgment as a
matter of law. TEX . R. CIV . P. 166a(c). A fact is “material” if it affects the ultimate outcome of the
lawsuit under the governing law. Pierce v. Wash. Mut. Bank, 226 S.W.3d 711, 714 (Tex.
App.–Tyler 2007, pet. denied). A material fact issue is “genuine” if the evidence is such that a
reasonable jury could find the fact in favor of the nonmoving party. Pierce, 226 S.W.3d at 714; see
Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006) (per curiam) (appellate court
reviewing a summary judgment must consider whether reasonable and fair minded jurors could differ
in their conclusions). Evidence is conclusive only if reasonable and fair minded jurors could not
differ in their conclusions. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755-56
(Tex. 2007) (per curiam) (citing Spates, 186 S.W.3d at 568). Once the movant has established a
right to summary judgment, the nonmovant has the burden to respond to the motion for summary
judgment and present to the trial court any issues that would preclude summary judgment. Pierce,


                                                            2
226 S.W.3d at 714 (citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79
(Tex. 1979)).
         In an appeal of a summary judgment proceeding, our review is a limited one. “Issues not
expressly presented to the trial court by written motion, answer or other response shall not be
considered on appeal as grounds for reversal.” TEX . R. CIV . P. 166a(c) (emphasis added). When
reviewing a summary judgment, courts of appeals should consider all summary judgment grounds
ruled on by the trial court and preserved for appellate review that are necessary for final disposition
of the appeal. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996). However, an
appellate court may, in the interest of judicial economy, consider other grounds that the movant
preserved for review, despite the fact that the trial court did not rule on them. Id.
         The construction of a statute is a question of law. In re Canales, 52 S.W.3d 698, 701 (Tex.
2001) (orig. proceeding). Therefore, we review a trial court’s interpretation of a statute de novo.
Canal Ins. Co. v. Hopkins, 238 S.W.3d 549, 561 (Tex. App.–Tyler 2007, pet. denied). In our
construction of the applicable statutes in this case, we must apply the relevant rules of statutory
construction found within the Texas Code Construction Act (chapter 311 of the Texas Government
Code) and the common law. Compare TEX . GOV ’T CODE ANN . § 311.002(1) (Vernon 2005) with
TEX . CIV . PRAC. & REM . CODE ANN . § 1.001 (Vernon 2002) and TEX . CIV . PRAC. & REM . CODE
ANN . § 1.002 (Vernon 2002). In following the common law, “[w]e must construe statutes as written
and, if possible, ascertain legislative intent from the statute’s language.” Helena Chem. Co. v.
Wilkins, 47 S.W.3d 486, 493 (Tex. 2001).
Equine Activity Act
         The portions of chapter 87 relevant to our review are sections 87.001 through 87.005, now
referred to as the “Equine Activity Act.”1 See, e.g., Robert Fugate, Survey of Texas Animal Torts,


         1
           The available legislative history materials provide insight into what legislators may have perceived as the
objective of the Equine Activity Act and the circumstances under which it was enacted. The Texas House Civil
Practices Committee produced a bill analysis stating that,

         [a]s a result of increased tort liability and insurance costs, equine activities in the [S]tate of Texas
         have suffered greatly. Twenty-eight states have adopted similar legislation and fourteen others are
         considering limiting equine liability. The tourism industry in Texas has been adversely affected by
         the expansion of liability as well as charitable, philanthropic and educational organizations.



                                                            3
48 S. TEX . L. REV . 427, 460 (2006) (referring to these sections as the “Equine Activity Act”).
Section 87.003 of the Act reads as follows:

         Limitation on Liability

                  Except as provided by Section 87.004, any person, including an equine activity sponsor,
         equine professional, livestock show participant, or livestock show sponsor, is not liable for property
         damage or damages arising from the personal injury or death of a participant in an equine activity or
         livestock show if the property damage, injury, or death results from the dangers or conditions that are
         an inherent risk of an equine activity or the showing of an animal on a competitive basis in a livestock
         show, including:

                  (1)      the propensity of an equine or livestock 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 or livestock animal’s reaction to sound, a sudden
                           movement, or an unfamiliar object, person, or other animal;

                  (3)      with respect to equine activities, certain land conditions and hazards, including
                           surface and subsurface conditions;

                  (4)      a collision with another animal or an object; or

                  (5)      the potential of a participant to act in a negligent manner that may contribute to
                           injury to the participant or another, including failing to maintain control over the
                           equine or livestock animal or not acting within the participant’s ability.


TEX . CIV . PRAC. & REM . CODE ANN . § 87.003 (Vernon 2005).2
         The legislature’s enactment of section 87.003, as part of the Equine Activity Act, altered the
existing common law to provide for the application of the “inherent risk” doctrine, a version of the




House Comm. on Civil Practices, Bill Analysis, Tex. H.B. 280, 74th Leg., R.S. (1995); see House Research Org.,
Bill Analysis, Tex. H.B. 280, 74th Leg., R.S. (1995); Dodge v. Durdin, 187 S.W .3d 523, 528-29 (Tex.
App.–Houston [1st Dist.] 2005, no pet.); see also Lawson v. Dutch Heritage Farm s, Inc., 502 F. Supp. 2d 698, 700
(N.D. Ohio 2007); Loren Speziale, Comment, Walking Through the New Jersey Equine Activity Statute: A Look at
Judicial Statutory Interpretation in Jurisdictions with Similar Limited Liability Laws, 12 S ETO N H ALL J. S PO RT L.
65, 68 (2002). To date, forty-four states have adopted similar statutes. See University of Vermont: Equine Activity
Statutes, http://asci.uvm.edu/equine/law/equine/equ_menu.htm (last visited Jan. 29, 2009).

         2
           For a general understanding of the relevant controlling law at the time the Equine Activity Act was passed,
see Pearson v. Jones Co., Ltd., 898 S.W .2d 329, 332 (Tex. App.–Eastland 1994, no writ). See also Bushnell v.
Mott, 254 S.W .3d 451, 452-53 (Tex. 2008) (per curiam); R ESTATEM ENT (S ECO N D ) O F T O RTS §§ 506-18 (1977). For
a general understanding of the relevant competing legal theories that also might have applied, see Griffin T.
Pivateau, Tackling the Competitive Sports Doctrine: A New Proposal for Sports Injuries in Texas, 9 T EX . R EV . E N T .
& S PO RTS L. 85 (2007).

                                                            4
“assumption of the risk” doctrine, to matters set forth within section 87.003’s purview.3 See
Chrismon v. Brown, 246 S.W.3d 102, 115 n.15 (Tex. App.–Houston [14th Dist.] 2007, no pet.); see
also Chrismon, 246 S.W.3d at 119 n.9 (Edelman, S.J., dissenting). Generally, the inherent risk
doctrine is understood to provide that “co-participant and nonparticipant defendants owe no duty to
protect a participant from risks inherent in the sport or activity in which he has chosen to take part.”
Sw. Key Program, Inc. v. Gil-Perez, 81 S.W.3d 269, 272 (Tex. 2002) (citing Phi Delta Theta Co.
v. Moore, 10 S.W.3d 658, 663 (Tex. 1999) (Enoch, J., dissenting from decision to deny petition for
review)).
         Applying this doctrine in the context of section 87.003, an equine activity sponsor does not
owe a duty to protect a participant from risks inherent to the activity in which the participant has
chosen to take part.4 See Sw. Key, 81 S.W.3d at 272; Chrismon, 246 S.W.3d at 111. Therefore, if


         3
            This construction of the Equine Activity Act is informed by a comparison of the statutory language found
within section 87.003 with earlier cases addressing what has come to be known as the inherent risk doctrine.
Compare, e.g., T EX . C IV . P RAC . & R EM . C O D E A N N . § 87.003 with Knight v. Jewett, 834 P.2d 696, 707 (Cal. 1992),
and Turcotte v. Fell, 502 N.E.2d 964, 970 (N.Y. 1986). Likewise, this construction is consistent with the available
legislative history materials related to the passage of the Equine Activity Act. See, e.g., Sen. Comm. on Natural
Resources, Bill Analysis, Tex. H.B. 280, 74th Leg., R.S. (1995); House Comm. on Civil Practices, Bill Analysis,
Tex. H.B. 280, 74th Leg., R.S. (1995); House Research Org., Bill Analysis, Tex. H.B. 280, 74th Leg., R.S. (1995);
see also Jennifer D. Merryman, Comment, Bucking the Trend: Why Maryland Does Not Need an Equine Activity
Statute and Why it May be Time to Put All of These Statutes Out to Pasture, 36 U. B ALT . L.F. 133, 143 (2006)
(“These statutes are modeled after the common law . . . .”). This construction is also consistent with that of another
Texas court. See Chrism on v. Brown, 246 S.W .3d 102, 115 n.15 (Tex. App.–Houston [14th Dist.] 2007, no pet.);
see also Chrism on, 246 S.W .3d at 119 n.9 (Edelman, S.J., dissenting). But see Fugate, Survey of Texas Animal
Torts, 48 S. T EX . L. R EV . at 460. Finally, courts in other states have reached similar conclusions regarding equine
statutes of like wording. See, e.g., Lawson, 502 F. Supp. 2d at 707; Frank v. Mathews, 136 S.W .3d 196, 202 (Mo.
Ct. App. 2004); see also Merryman, Bucking the Trend, 36 U. B ALT . L.F. at 134; Krystyna M. Carmel, The Equine
Activity Liability Acts: A Discussion of Those in Existence and Suggestions for a Model Act, 83 K Y . L.J. 157, 166-68
(1995). But see Sharlene A. McEvoy, The Rise of Equine Activity Liability Acts, 3 A N IM AL L. 201, 215 (1997).
Since the Act’s passage, jurists and commentators have continued to define the inherent risk doctrine using language
similar to that found within the text of section 87.003. See, e.g., Phi Delta Theta Co. v. Moore, 10 S.W .3d 658, 662
(Tex. 1999) (Enoch, J., dissenting from decision to deny petition for review); Chrism on, 246 S.W .3d at 111-12;
Geiersbach v. Frieje, 807 N.E.2d 114, 119-20 (Ind. Ct. App. 2004); Matthew G. Cole, Comment, No Blood No
Foul: The Standard of Care in Texas Owed by Participants to One Another in Athletic Contests, 59 B AYLOR L. R EV .
435, 461-62 (2007).

         4
            The inherent risk doctrine is sometimes referred to as “primary assumption of the risk.” See, e.g., Knight,
834 P.2d at 707; Turcotte, 502 N.E.2d at 968. The inherent risk doctrine addresses the issue of a defendant’s duty to
a plaintiff. Phi Delta Theta, 10 S.W .3d at 661-62; Chrism on, 246 S.W .3d at 111-12. Therefore, this doctrine does
not conflict with the causation principles of proportionate fault. See Knight, 834 P.2d at 704, 707-08; Turcotte, 502
N.E.2d at 967-68; see also T EX . C IV . P RAC . & R EM . C O D E A N N . §§ 33.001-.017 (Vernon 2008). But see Pivateau,
Tackling the Competitive Sports Doctrine, 9 T EX . R EV . E N T . & S PO RTS L. at 115-16. For the same reasons, the
inherent risk doctrine does not, in the context of the case before us, conflict with the Texas Supreme Court’s

                                                             5
a plaintiff’s injury is caused in a manner consistent with the risks inherent to the particular equine
activity in which the plaintiff chose to participate, the defendant will be deemed to have owed the
plaintiff no duty. See Phi Delta Theta, 10 S.W.3d at 662; Chrismon, 246 S.W.3d at 111. While it
may be necessary to first submit various disputed questions of fact to a jury, the question of whether
a duty was owed to the plaintiff by the defendant is a question of law for the trial court to decide. See
St. John v. Pope, 901 S.W.2d 420, 424 (Tex. 1995); see also Steeg v. Baskin Family Camps, Inc.,
124 S.W.3d 633, 640 (Tex. App.–Austin 2003, pet. dism’d); cf. Chrismon, 246 S.W.3d at 112; Kolb
v. Tex. Employers’ Ins. Ass’n, 585 S.W.2d 870, 873 (Tex. Civ. App.–Texarkana 1979, writ ref’d
n.r.e.); Griffin T. Pivateau, Tackling the Competitive Sports Doctrine: A New Proposal for Sports
Injuries in Texas, 9 TEX . REV . ENT . & SPORTS L. 85, 119-20 (2007).
         The risk of injury, in varying degrees, is inherent in every sport or recreational activity. Phi
Delta Theta, 10 S.W.3d at 662; see Pivateau, Tackling the Competitive Sports Doctrine, 9 TEX . REV .
ENT . & SPORTS L. at 119. This is true regardless of whether the sport or activity is organized or
unorganized, contact or noncontact, and regardless of the ages of the participants. Phi Delta Theta,
10 S.W.3d at 662. In determining what risks are inherent, courts should focus on the relevant risk
of injury, not on the injury itself. Id.

         For instance, a court might properly consider whether getting hit by an errant golf ball is a risk
         inherent in the sport of golf, but not whether broken teeth that result from getting hit by a golf ball is
         an injury inherent in golf. Or, a court might properly consider whether injury from being tackled in
         a football game is a risk inherent in the sport of football, but not whether a broken neck that results
         from a tackle is an injury inherent in football. Indeed, an injury common to a particular sport or
         activity (e.g., a pulled back muscle in golf) could result from a risk not inherent in that sport (e.g., the
         risk of being tackled by another golfer).


Id.




abrogation of the “implied assumption of the risk” doctrine, an affirmative defense related to causation. See
Chrism on, 246 S.W .3d at 111 n.9; see also Phi Delta Theta, 10 S.W .3d at 659-60; Knight, 834 P.2d at 704, 707-08;
Turcotte, 502 N.E.2d at 967-68; Cole, No Blood No Foul, 59 B AYLOR L. R EV . at 462; cf. Farley v. M M Cattle Co.,
529 S.W .2d 751, 758 (Tex. 1975) (abolishing the defense now referred to as implied assumption of the risk). But
see Chrism on, 246 S.W .3d at 119 n.9 (Edelman, S.J., dissenting); Pivateau, Tackling the Competitive Sports
Doctrine, 9 T EX . R EV . E N T . & S PO RTS L. at 115-16. However, in the context of the case before us, this doctrine
conflicts with the Texas Supreme Court’s abrogation of the Texas “no duty” doctrine. See Parker v. Highland Park,
Inc., 565 S.W .2d 512, 516-21 (Tex. 1978). Therefore, legislative action was necessary to make it applicable.

                                                              6
         Under the inherent risk doctrine, “there are no inherent injuries, only inherent risks.” Id. Not
every injury that occurs during a sporting event or recreational activity is related to an inherent risk.
Id. “For example, a sink hole in a public playing field is not a risk that arises from the nature of
participation in some sport or activity.” Id.; see Pivateau, Tackling the Competitive Sports Doctrine,
9 TEX . REV . ENT . & SPORTS L. at 119.
Discussion
         As a movant for traditional summary judgment, it was Loftin’s burden to conclusively
establish the absence of any genuine issue of material fact and that she was entitled to judgment as
a matter of law. See TEX . R. CIV . P. 166a(c). In their “First Amended Original Petition,” the Lees
alleged as follows:

                   On or about February 27, 2006, Plaintiff JANICE LEE[] was invited by Defendant TERRI
         LOFTIN to go trail riding by horseback at Defendant’s residence . . . . Upon the Plaintiff’s arrival at
         the Defendant’s residence that day, the Plaintiff was provided with a saddled horse by the Defendant
         and the two of them then began to ride the horses on some nearby trails through the forest. The
         Plaintiff was unfamiliar with the area and the choices for riding trails and the Plaintiff had to rely and
         depend upon the Defendant’s judgment concerning the selection of riding trails that would be
         reasonably safe and appropriate under the existing circumstances. The Plaintiff was following behind
         the Defendant and[,] as they proceeded with their trail ride along the particular path chosen by the
         Defendant, it became very thick and overgrown with trees and bushes. At this point in the trail, the
         Defendant changed places so that the Plaintiff was riding in front of her. As the Plaintiff then
         proceeded forward she came upon a wet, boggy area in the woods and her riding horse became uneasy
         and anxious. Suddenly, the Defendant’s horse being ridden by the Plaintiff bolted forcefully away
         from the boggy area[,] causing the Plaintiff to be thrown off the horse, striking a nearby tree and
         causing serious bodily injury to the Plaintiff.


The Lees further alleged the ways in which they claimed Loftin “fail[ed] to exercise ordinary care,”
proximately causing the “incident and the resulting injuries and damages incurred.”5 More
specifically, the Lees contended that Loftin was negligent because she

         1.       failed to make a reasonable and prudent effort to determine Janice Lee’s ability to engage safely in the
                  equine activity and to safely manage the equine;

         2.       failed to warn Lee that the land they rode through was overgrown and boggy;

         3.       failed to select a safe riding trail;


         5
            In the text quoted, the injuries and damages referred to are those of Janice Lee. However, a later portion
of the petition alleged that Bob Lee also incurred damages “as a direct result of the negligence of [Loftin], as
described above. . . .”

                                                             7
        4.       selected an unsafe trail;

        5.       selected an unsafe horse for Lee to ride;

        6.       failed to investigate the safety of the selected trail in advance of the ride; and

        7.       failed to lead the way during the ride.


        It is undisputed that Loftin and Janice Lee were participants engaged in equine activity at the
time of Lee’s injury. See TEX . CIV . PRAC. & REM . CODE ANN . § 87.001(1), (3), (9) (Vernon 2005)
(defining “engages in equine activity,” “equine activity,” and “participant”). Further, it is undisputed
that Loftin was an equine activity sponsor. See TEX . CIV . PRAC. & REM . CODE ANN . § 87.001(4)
(Vernon 2005) (defining “equine activity sponsor”). We must therefore determine whether Loftin
presented the trial court with sufficient evidence to conclusively establish that no material issues of
fact existed so that the trial court could determine, as a matter of law, that the inherent risk doctrine
precluded the Lees’ negligence claim. See TEX . R. CIV . P. 166a(c); Steeg, 124 S.W.3d at 639-40.
        To reach the legal question of whether the Lees’ lawsuit was precluded by section 87.003 and
the inherent risk doctrine, it was Loftin’s burden to conclusively establish the facts necessary to
determine that Janice Lee’s injuries were caused in a manner consistent with the risks inherent to the
particular equine activity in question, here, a trail ride. See TEX . CIV . PRAC. & REM . CODE ANN .
§ 87.003; Sw. Key, 81 S.W.3d at 272, Phi Delta Theta, 10 S.W.3d at 662; Chrismon, 246 S.W.3d
at 111. Therefore, as part of Loftin’s traditional summary judgment burden, she had to present
evidence sufficient to conclusively establish facts by which the trial court could determine, as a
matter of law, that a “risk” existed and that the “risk” was “inherent.” See id. Aware of this burden,
Loftin alleged in her motion for summary judgment as follows:


                  [At her deposition, Plaintiff admitted that she] didn’t know what happened to cause the horse
        to bolt, but understood that the Defendant had seen a vine wrap around the horse’s leg just before the
        horse bolted, and testified she would not dispute that [observation] given what she had seen.
                  ....
                  Plaintiff testified [that] she had enough experience with horses to realize that if they get
        something wrapped around their flank they are going to jump. She admitted that appears to be what
        happened in this accident. She admitted that would be something she would expect to happen in a
        horse’s normal conduct. She admitted that was one of the dangers that happens when you ride a horse.




                                                             8
                  ....
                  Plaintiff further testified as follows: At no time before the accident did Plaintiff express any
        concern to the D efendant about the path they were on. At no point in time before the accident did
        Plaintiff feel like they needed to turn back. She realized that things like this could happen with horses
        even before this accident, and that that was something that’s just kind of inherent in the risk of riding
        a horse. (Plaintiff’s Deposition [p]age 41, lines 21 though 23).
                  ....
                  It is undisputed that Plaintiff fell off the horse when it bolted as a result of a vine wrapping
        around its rear flank. Plaintiff admitted that is normal behavior for a horse, and one of the dangers that
        happens when you ride a horse. Plaintiff admitted that that was an inherent risk of riding a horse. This
        is precisely the type of case for which immunity was designed by the legislature in [section] 87.003,
        wherein it addresses the unpredictability of an equine to an unfamiliar object or certain land conditions
        and hazards . . . . As summary judgment evidence[,] Defendant attaches to this Motion as Exhibit B
        selected excerpts of the deposition of the Plaintiff.


        According to the Lees, Janice Lee’s horse “bolted” after it was exposed to a riding trail “that
was too thick and overgrown for safe trail riding,” and which included a “boggy, wet, low area.”
Loftin’s summary judgment evidence, excerpts from the deposition of Janice Lee, established
conclusively that, while in the boggy area, the horse provided by Loftin panicked after a vine
wrapped around its flank. The evidence further established that it is not unusual for a horse to react
in such a way to a vine. Therefore, Loftin established that no genuine issue of fact existed as to the
material issue of whether the vine was dangerous, conclusively proving it to be so. See TEX . R. CIV .
P. 166a(c). Likewise, Loftin conclusively established that the horse in question reacted in a normal
manner to the vine, thus also conclusively establishing that the horse in question had a common, but
dangerous, propensity. See id. Therefore, Loftin established the facts necessary for the trial court
to determine that the vine, as well as the nature of the horse, were “risks,” a key step to establishing
immunity. See TEX . CIV . PRAC. & REM . CODE ANN . § 87.003; Sw. Key, 81 S.W.3d at 272; Phi Delta
Theta, 10 S.W.3d at 662; Chrismon, 246 S.W.3d at 111.6
        Nonetheless, it was likewise Loftin’s burden to establish that no genuine issue of fact existed
as to the material facts necessary for the trial court to determine that these “risks” were “inherent”
to the activity in question, trail riding. See TEX . R. CIV. P. 166a(c); see also TEX . CIV . PRAC. & REM .
CODE ANN . § 87.003; Sw. Key, 81 S.W.3d at 272; Phi Delta Theta, 10 S.W.3d at 662; Chrismon,
246 S.W.3d at 111. Without question, Loftin conclusively established that this horse’s propensities


         6
          This opinion does not address the question of whether Loftin was also required to prove facts necessary to
conclude the bog to be a “risk.”

                                                            9
were normal for a horse. However, to establish facts relating to inherency, it was incumbent on
Loftin to further prove facts relating to whether exposure to Loftin’s alleged “risks” was common
to a trail ride activity. See Phi Delta Theta, 10 S.W.3d at 662 (“For example, a sink hole in a public
playing field is not a risk that arises from the nature of participation in some sport or activity.”);
Pivateau, Tackling the Competitive Sports Doctrine, 9 TEX . REV . ENT . & SPORTS L. at 119; see also
TEX . CIV . PRAC. & REM . CODE ANN . § 87.003; Sw. Key, 81 S.W.3d at 272; Chrismon, 246 S.W.3d
at 111.
          The operative petition of the plaintiffs alleged that the trail taken was unsafe. Likewise,
Loftin’s own summary judgment evidence shows that Janice Lee testified at her deposition as
follows:


          Q               Okay. Tell me what happened then.

          A                 I got there, you know how you do small talk, and then [Loftin] and I took off
                 riding. . . . W hen we first started out, where we started out riding, it wasn’t heavily wooded
                 at all. I mean it was, you know, it was enough open that you could see.
                            W e rode down to the end by the arena and then we made a turn, turned back to the
                 left and then we kind of zigzagged and was just riding . . . . It was through the woods but it
                 wasn’t very heavily wooded, it was an open area. . . . W e . . . turned and went . . . into a more
                 wooded area . . . . There was a trail and we were just winding around through the trail.

          Q               Okay. Did the accident happen on a trail?

          A               Yes, sir.

          Q               Okay. About how many minutes elapsed between when you first started the ride and
                 the accident?

          A.              [W ]e had been riding for at least an hour, probably, when it happened. . . .

          ....

          Q               Now tell me about the location where the accident happened. W as it an open area?

          A               No, sir.

          Q               W hat was in the area where the accident happened?

          A               Okay. When we turned and . . . went into the woods, it was pretty overgrown. I
                 mean there was a lot of bushes. You know how the trees will hang down and the trees are
                 close together? W hen I was riding, there was trees that were brushing the sides of my legs
                 on both sides when we rode.
                          W e got to one point and it had rained like the week before. . . . [W ]e had already
                 gone across some wet areas . . . but it wasn’t real boggy or anything. Then we reached this
                 one area and [Loftin] moved over . . . . [A]nd I kept going, my horse just kept going.


                                                           10
                 It was really boggy. [The horse] started sinking in the mud and, you know, I could
       feel him getting nervous underneath me and all I could think of was - - I knew I couldn’t get
       off, I didn’t feel like I could get off. All I could think of was I’ve got to get him turned and
       get him out of this so maybe it will calm him down and he won’t be so upset, so that’s when
       I turned the horse.
                 . . . I don’t know what happened after that but he bolted . . . .

....

Q               And you could see the mud before the horse went in it, right?

A                W ell, it was soft. You could see it but you didn’t - - there was really nowhere else
       to go. It was so heavily wooded, there was nowhere else to go.

....

Q               At any time did you try to turn the horse before he went into the soft ground?

A               No, sir. There was nowhere else to go.

Q               You couldn’t back the horse around and go back out?

A               It was pretty heavily wooded. It would have been difficult.

....

Q               Did you feel like if the horse was able to handle it, you would be able to handle it?

A               Right.

Q               Do you understand that at least from [Loftin’s] point of view, what she saw was a
       vine had wrapped around the horse’s leg?

A               Yes, sir.

Q               . . . [W ]ould you dispute that . . . ?

A               No, sir. . . .

Q               Right. Did you notice any vines hanging down from the trees before you got there?

A               Yes, sir.

....

Q              You have enough experience with horses to realize that if they get something
       wrapped around their flank, they’re gonna jump?

A               Yes.

....

Q               That would be something you would expect in a horse’s normal conduct; would it
       not?

                                                  11
        A                 Right.

        Q                 That’s one of the dangers that happens when you ride a horse, isn’t it?


        A                 Right.7

        ....

        Q                  And at no time before the accident did you express any concerns to [Loftin] about
                 the path that you were on?

        A                 No, sir.

        Q                 At any point in time before the accident did you feel like you needed to turn back?

        A                 No, sir.

        ....

        Q                 Okay. So what do you claim that [Loftin] did wrong in this case? W hy are you
                 suing her?


        A                . . . Probably the biggest thing is the poor choice of riding. I look back and we
                 shouldn’t have been riding on the trail.

        Q                 But at no time before the accident had you said to [Loftin] [w]e need to turn back?

        A                 No, sir.

        Q                 Or had you felt like you needed to turn back, right?

                          No, sir.


(emphasis added).
        “[T]he inherent risk standard turn[s] on an analysis of the nature of the sport in question and
a determination of what risks are normally created by the nature of the sport.” See Phi Delta Theta,
10 S.W.3d at 663. Here, Lee’s deposition testimony presented conflicting inferences regarding the
normalcy of the alleged risks present on the trail selected. For example, Lee admitted that horses
normally react poorly to vines contacting their flanks and that she never complained to Loftin about
the condition of the trail or attempted to avoid the boggy area where contact with the vine was made.

        7
            This question, despite being asked and answered in broad fashion, only addresses that a horse commonly
reacts in this manner to contact with vines. It does not address whether vines would be common to an area
designated for trail rides.

                                                        12
However, Lee also asserted that, approximately one hour into the trail, when they approached the
bog, her horse “just kept going,” walking into the bog. She stated that, although she saw a
combination of hanging vines and bog before her horse entered into the bog, she did not try to turn
her horse to prevent it from going in because “there was nowhere else to go.” When asked why she
didn’t “back the horse around and go back out [in the direction she had come,]” she stated that,
because “it was pretty heavily wooded,” it would have been “difficult” to do so. Finally, Lee
testified at the end of her deposition that she faulted Loftin because of “the poor choice of riding,”
further stating that “I look back and we shouldn’t have been riding on the trail.”
        In reviewing the trial court’s summary judgment, we must examine the entire summary
judgment record in the light most favorable to the nonmovant, indulging every reasonable inference
and resolving any doubts against the motion. See Yancy, 236 S.W.3d at 782. Factual conflicts in
the nonmovant’s own deposition must be resolved in the nonmovant’s favor where that deposition
is considered as summary judgment evidence. See Randall v. Dallas Power & Light Co., 752
S.W.2d 4, 5 (Tex. 1988); Gaines v. Hamman, 163 Tex. 618, 626, 358 S.W.2d 557, 562 (1962);
Pierce, 226 S.W.3d at 716-17; Hassell v. Mo. Pac. R.R. Co., 880 S.W.2d 39, 41 n.1 (Tex.
App.–Tyler 1994, writ denied). When the summary judgment record is viewed in this light, Janice
Lee’s deposition testimony, which included these conflicting inferences regarding the normalcy of
alleged risks present on the selected trail, fails to conclusively establish the facts necessary to support
a legal determination that the “risks” alleged by Loftin were “inherent.” See Steeg, 124 S.W.3d at
639-40. Therefore, Loftin failed to meet her summary judgment burden, see TEX . R. CIV . P. 166a(c),
and the trial court reversibly erred by granting summary judgment. See id.
        However, even had Loftin met her initial summary judgment burden, the result would not
change. Section 87.004 of the Equine Activity Act provides an exception to the limitation on
liability set forth in section 87.003.8 See Little v. Needham, 236 S.W.3d 328, 333 (Tex.
App.–Houston [1st Dist.] 2007, no pet.) (interpreting section 87.004 as providing exceptions to



        8
           This opinion does not address the question of which party must assert and put forth evidence relating to
the exceptions found with section 87.004. Compare Little v. Needham, 236 S.W .3d 328, 333-34 (Tex.
App.–Houston [1st Dist.] 2007, no pet.) (placing that burden on the nonmovant), with Johnson v. Sm ith, 88 S.W .3d
729, 730-33 (Tex. App.–Corpus Christi 2002, no pet.) (implicitly placing that burden on the movant).

                                                        13
section 87.003); Johnson v. Smith, 88 S.W.3d 729, 732 (Tex. App.–Corpus Christi 2002, no pet.)
(same).9 Section 87.004 reads, in pertinent part, as follows:


         Exceptions to Limitation on Liability

                  A person, including an equine activity sponsor, equine professional, livestock show
         participant, or livestock show sponsor, is liable for property damage or damages arising from the
         personal injury or death caused by a participant in an equine activity or livestock show if:

                   ....

                   (2)       the person provided the equine or livestock animal and the person did not make a
                             reasonable and prudent effort to determine the ability of [a] participant to engage
                             safely in the equine activity or livestock show and determine the ability of [that]
                             participant to safely manage the equine or livestock animal, taking into account
                             [that] participant's representations of ability[.]

                   ....




TEX . CIV . PRAC. & REM . CODE ANN . § 87.004 (Vernon 2005).10 In their response to Loftin’s motion
for traditional summary judgment, the Lees asserted that the above exception applied to their
negligence cause of action against Loftin. The Lees asserted that


         [Loftin] only knew that Janice Lee wanted to start riding and otherwise made no inquiries. [Because
         this horse] dislike[d] . . . mud and water, he was the wrong horse, on the wrong trail . . . with a mud


         9
              This construction of section 87.004 is informed by the plain language of the text, including its title,
“Exceptions to Limitation on Liability.” See T EX . C IV . P RAC . & R EM . C O D E A N N . § 87.004 (Vernon 2005); see also
T EX . G O V 'T C O D E A N N . § 311.023 (Vernon 2005) (permitting courts to consider the title or caption of a statute).
Likewise, this construction is consistent with the available legislative history, see, e.g., Sen. Comm. on Natural
Resources, Bill Analysis, Tex. H.B. 280, 74th Leg., R.S. (1995); House Comm. on Civil Practices, Bill Analysis,
Tex. H.B. 280, 74th Leg., R.S. (1995); House Research Org., Bill Analysis, Tex. H.B. 280, 74th Leg., R.S. (1995),
other Texas courts, see, e.g., Little, 236 S.W .3d at 333; Johnson, 88 S.W .3d at 732, and commentators, see Fugate,
Survey of Texas Animal Torts, 48 S. T EX . L. R EV . at 461.

         10
               In this construction of section 87.004, it has been determined that subsection 2, containing the exception
in question, must be read as modified above. To do otherwise would create a severe conflict in regard to the
meaning of “the participant” in subsection 4, rendering that subsection nonsensical. See T EX . C IV . P RAC . & R EM .
C O D E A N N . § 87.004; see also Helena Chem. Co., 47 S.W.3d at 493 (“[W ]e must always consider the statute as a
whole rather than its isolated provisions.”). Likewise, this construction is consistent with the available legislative
history. See, e.g., Sen. Comm. on Natural Resources, Bill Analysis, Tex. H.B. 280, 74th Leg., R.S. (1995) (“Sec.
87.004 . . . [p]rovides that a person is liable for property damages, injury, or death resulting from that person’s
negligence under specific conditions.”). This construction is also consistent with that found in available commentary
on the statute. See Fugate, Survey of Texas Animal Torts, 48 S. T EX . L. R EV . at 461.

                                                             14
       hole and a novice rider. Such a combination of factors foreseeably led to the severe injuries that
       occurred.


       The Lees cited to the above deposition evidence in support of their position that Loftin’s
negligence in matching rider with trail caused the injury and damages in question. As such, they
focused on Janice Lee’s testimony that the horse became “anxious” while in the bog, which they
asserted was a relevant factor in addition to the vine. They also focused on Janice Lee’s other
deposition testimony indicating that her riding experience was limited. Likewise, the Lees attached
an affidavit from Janice Lee. The affidavit read as follows:


                About two weeks before the horse riding accident of February 27, 2006, while my husband
       and I were visiting the home of Terry Loftin about our horse that they were training, I mentioned that
       I would enjoy horse riding with them sometime in the future. They agreed that I could do that and
       Terry Loftin said that I could ride her mother’s horse. . . .
                At no time prior to my riding accident did Terry Loftin ask me any questions regarding my
       horse riding experience.



       Loftin offered evidence that Janice Lee did have a limited amount of experience riding horses
and extensive experience breeding horses. Loftin offered no summary judgment evidence to
contradict Janice Lee’s claim in her affidavit that “[a]t no time prior to my riding accident did Terry
Loftin ask me any questions regarding my horse riding experience.” Instead, Loftin simply stated,
without evidentiary support, as follows:


                [I]t should be noted that it is undisputed that [Loftin] was well aware of [Janice Lee’s]
       knowledge of horses, and[,] in fact[,] her friendship with [Janice Lee] began by [Janice Lee] bringing
       one of [her] horses to [Loftin’s] husband to break.


Nonetheless, viewed in its entirety, the summary judgment evidence contained proof that Janice Lee
owned a number of horses for breeding and sale. It also contained proof that she seldom attempted
to ride these horses (so attempting less than once per year in the aggregate). Additional evidence
presented by the Lees, excerpts from Loftin’s deposition, included testimony that Janice Lee told
Loftin’s husband that she wanted to “start riding” and that Lee “didn’t really have anything to ride.”
(emphasis added). Therefore, while it was “undisputed” that Loftin was “well aware” of Janice
Lee’s knowledge of horse breeding, it was not “undisputed” that Loftin was “well aware” of Janice

                                                        15
Lee’s knowledge of horse riding. There was no evidence directly supporting that proposition, and
the Lees’ evidence supported the contrary.
         After examining the entire summary judgment record in the light most favorable to the
nonmovant, indulging every reasonable inference and resolving any doubts against the motion, we
must hold that a fact issue was presented by the Lees as to whether the exception found within
subsection 2 of section 87.004 controlled. As such, summary judgment was not appropriate. See
Johnson, 88 S.W.3d at 733 (holding that a fact issue of this type precluded summary judgment).
We sustain the Lees’ first issue.


                                                     DISPOSITION
         Because we have sustained the Lees’ first issue, we reverse the trial court’s summary
judgment order and remand the case for further proceedings.11



                                                                                JAMES T. WORTHEN
                                                                                    Chief Justice

Opinion delivered January __, 2009.
Hoyle, B., Justice, concurring.
Griffith, S., Justice dissenting.


BRIAN HOYLE, Justice
         Because the summary judgment proof raises a fact issue as to whether the exception to the
limitation on liability contained in section 87.004(2) applies, I agree that the trial court’s summary
judgment in favor of Loftin should be reversed and the case remanded for further proceedings.
Because the summary judgment proof fails to raise a fact issue as to whether the limitation on
liability contained in section 87.003 applies, I concur in the court’s judgment by separate opinion.
Limitation on Liability
         In construing a statute, our primary objective is to determine and give effect to the
legislature’s intent in enacting it. McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003). In
determining legislative intent, we examine the entire act, not just isolated portions. City of San
Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). We start with the plain and common
meaning of the statute’s words. McIntyre, 109 S.W.3d at 745. Unless the statute is ambiguous, we

         11
            In their remaining five issues, the Lees’ assert that “an equine sponsor’s personal negligence” falls
outside the liability limitations of the Act and that the Act is unconstitutional because it violates article I of the Texas
Constitution and the Fourteenth Amendment to the United States Constitution. Because resolution of these issues is
unnecessary to the final disposition of this appeal, this opinion does not address them. See T EX . R. A PP . P. 47.1.

                                                            16
determine the legislature’s intent from the language of the statute itself. Cont’l Cas. Co. v. Downs,
81 S.W.3d 803, 805 (Tex. 2002). We must presume that every word of the statute has been used for
a purpose and that every word excluded from the statute has been excluded for a purpose. Laidlaw
Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995). We should not insert
words into the statute except to give effect to clear legislative intent. Id. We presume that the
legislature enacted the statute with complete knowledge of existing law and with reference to it.
Acker v. Tex. Water Comm’n, 790 S.W.2d 299, 301 (Tex. 1990).
         Here, Loftin asserts that section 87.003 limits her liability for inherent risks of equine activity
and therefore she is not liable for the Lees’ injuries. Thus, the initial step in determining whether
the trial court’s summary judgment was proper is to decide whether the activity that is the subject
of the Lees’ claims involves an inherent risk of equine activity. Specifically, we must determine
whether a horse’s bolting when a vine touches the horse while it is in wet, boggy soil is an inherent
risk of equine activity. The statute itself points us to the correct answer.
         Section 87.003 provides the following nonexclusive list of inherent risks of equine activity:


        (1)     the propensity of an equine or livestock 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 or livestock animal’s reaction to sound, a sudden movement,
                or an unfamiliar object, person, or other animal;

        (3)     with respect to equine activities, certain land conditions and hazards, including surface and
                subsurface conditions;

        (4)     a collision with another animal or an object; or

        (5)     the potential of a participant to act in a negligent manner that may contribute to injury to the
                participant or another, including failing to maintain control over the equine or livestock
                animal or not acting within the participant’s ability.



TEX . CIV . PRAC. & REM . CODE ANN . § 87.003 (Vernon 2005). Because section 87.003 controls here
and contains a nonexclusive list of inherent risks, we may compare the facts of this case to the listed
risks to decide whether, as a matter of law, the Lees’ injuries resulted from an inherent risk. See
Little v. Needham, 236 S.W.3d 328, 332 (Tex. App.–Houston [1st Dist.] 2007, no pet.).
         Summary judgment is proper when an activity falls within only one of the statutorily defined
inherent risks, or within an inherent risk of equine activity not listed in the statute. See TEX . CIV .
PRAC. & REM . CODE ANN . § 87.003. But in this case, the activity in question falls within all five of
the listed inherent risks of equine activity. Id.; see also Little, 236 S.W.3d at 332 (When a jumpy
and free spirited horse that was not fully trained veered off the track causing the plaintiff to collide
with a tree, the facts fell “squarely within the statutorily defined dangers or conditions that are an
inherent risk of equine activity” because the facts involved both the propensity of an equine to
behave in ways that may result in injury or death and a collision with an object.). Therefore, I would
hold that Loftin established she was entitled to the limitation on liability provided by section 87.003,
and the trial court did not err by so finding. See Little, 236 S.W.3d at 332 (quoting Jorst v.

                                                         17
D’Ambrosio Bros. Invest. Co., No. C 00-03646 CRB, 2001 WL 969039, at *8 (N.D.Cal. Aug. 13,
2001)(not designated for publication) (Where the object with which a rider collides is a foreseeable
part of riding, such as a tree branch when riding outside, the risk that a rider would brush against the
object and fall is an inherent risk.).
Exceptions to Limitations on Liability
         Determining the applicability of section 87.003 is only the first step, however. Section
87.004 creates exceptions to the limitations on liability, one of which applies when

          (2) the person provided the equine or livestock 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 or
         livestock show and determine the ability of the participant to safely manage the equine or livestock
         animal, taking into account the participant’s representations of ability[.]


TEX . CIV . PRAC. & REM . CODE ANN . § 87.004 (Vernon 2005).12
        Viewed in the light most favorable to the Lees, the evidence establishes that Loftin never
inquired of Janice Lee’s riding ability. While Lee was a horse breeder, she was not actually a horse
rider. Although she previously had ridden horses on a few occasions, she presented evidence that
she was a novice rider and that she told Loftin she wanted to “start” riding. I understand the trial
court’s reluctance to find that the Lees raised a fact issue on this exception based on their theory that
a horse breeder lacked the ability to negotiate a trail ride. And the Lees’ proof was certainly not
overwhelming. Nevertheless, I agree that the Lees’ summary judgment evidence was sufficient to
create a fact issue. Therefore, the summary judgment in favor of Loftin should be reversed and the
case remanded to the trial court for further proceedings.

                                                                            BRIAN HOYLE
                                                                                    Justice


SAM GRIFFITH, Justice
        I respectfully dissent. I would affirm the trial court’s granting of Defendant/Appellee Terri
Loftin’s Motion for Summary Judgment.
        Plaintiff/Appellant Janice Lee’s First Amended Original Petition contended her injuries were
the result of Loftin’s failure to exercise ordinary care with regard to both failing to inquire about



         12
             The Lees claimed that their injuries were caused by a dangerous latent condition of land, thereby
invoking another exception to the limitation on liability. However, summary judgment was proper on this claim for
several reasons, probably the most indisputable of which was that the vines and bog were not a latent condition of the
property because Janice Lee saw the vines and the bog before entering the area. See Little, 236 S.W .3d at 333; see
also Gam ble v. Peyton, 182 S.W .3d 1, 4 (Tex. App.–Beaumont 2005, no pet.) (Generally, landowners have no duty
to disclose risks caused by plants because such a duty would be an enormous burden bordering on absolute
liability.). The Lees make no argument that the vines or wet, boggy soil were concealed. Therefore, I examine only
the Lees’ contention that they raised a fact issue concerning whether Loftin failed to make a reasonable and prudent
effort to determine Janice Lee’s riding ability.



                                                          18
Lee’s riding ability,13 and for failing to warn14 Lee of the latent dangerous condition of the land upon
which the trail ride15 occurred.
         Chapter 87 of the Texas Civil Practice and Remedies Code is entitled “Liability Arising from
Equine Activities or Livestock Shows,” and was enacted by the Texas Legislature to address the
issue of liability for persons involved in equine activities and livestock shows. In drafting and
enacting the legislation, the Legislature, by the Act’s language, clearly recognized the inherent
dangers of working around livestock and especially of riding horses. Chapter 87 provides limitation
of the liability of “any person,” which was very broadly defined,16 for personal injury or death that
resulted from “the dangers or conditions that are an inherent risk of an equine activity. . . .”17 TEX .


         13
             Lee alleged that her injuries were “proximately caused by Defendant’s failure to exercise ordinary care”
in “failing to make a reasonable and prudent effort to determine the ability of Janice Lee to engage safely in the
equine activity and determine the ability of Janice Lee to safely manage the equine.”

         14
              Specifically, Lee alleged:

         In failing to warn Janice Lee of a dangerous latent condition of land for which warning signs,
         written notices, or verbal warnings were not conspicuously posted or provided to Janice Lee, and
         the land was under the control of Terri Loftin at the time of the injury and Terri Loftin knew of the
         dangerous latent condition. In failing to select a safe trail for horseback riding. In selecting a trail
         for horseback riding that had a known boggy, wet, low area and then putting Janice Lee on a horse
         that was known to dislike the mud or water. In selecting a trail for horseback riding that was too
         thick and overgrown for safe trail riding with guests who were unfamiliar with the area and the
         horse being ridden. In failing to investigate the riding trails to determine if there were any areas
         along the trail that would pose a hazard or risk of harm to riding guests. In failing to lead the way
         along the trail ride for the safety and proper supervision of riding guests unfamiliar with the trial
         route and potential hazards. In allowing the Plaintiff to lead the way along the trail and into a
         hazardous area of water, mud and overgrowth.

         15
            A trail ride is an equestrian activity whereby the riders casually ride their horses together outdoors along
roads, natural trails, or through pastures, rangeland, or even forests. The activity is conducted outside an arena, a
riding corral, or other more established, more sterile riding areas. The trail ride can be conducted wherever the
riders wish to ride, including along unmarked routes of the riders’ own choosing in wilderness areas. See generally
Green v. Pool, 421 S.W .2d 439, 440 (Tex. Civ. App.-Tyler 1967, no writ) (riding along a public road); Moore v.
Dum m et, 478 S.W .2d 177, 179 (Tex. Civ. App.–Houston [14th Dist.] 1972, no writ) (riding together over ranch
acreage).

         16
            “Person” is defined as “an equine activity sponsor, equine professional, livestock show participant, or
livestock show sponsor.” T EX . C IV . P RAC . & R EM . C O D E A N N . § 87.004 (Vernon 2005).

         17
                    § 87.003. Limitation on Liability
                    Except as provided by Section 87.004, any person, including an equine activity
                    sponsor, equine professional, livestock show participant, or livestock show sponsor,
                    is not liable for property damage or damages arising from the person injury or death
                    of a participant in an equine activity or livestock show if the property damage,
                    injury, or death results from the dangers of conditions that are an inherent risk of
                    an equine activity or the showing of an animal on a competitive basis in a livestock
                    show, including:



                                                            19
CIV . PRAC. & REM . CODE ANN . § 87.003 (Vernon 2005). Section 87.003 contains a nonexclusive
list of five of the more obvious manners in which injuries can occur due to the “inherent risk” of
working with livestock. The list includes such admonitions that horses have a “propensity . . . to
behave in ways that may result in personal injury or death,” that horses are unpredictable in their
“reaction to sound, a sudden movement, or unfamiliar object, person or other animal,” that injuries
could result due to a horse’s response to certain “activities, certain land conditions and hazards,
including surface and subsurface conditions,” or that injuries could result from “a collision with
another animal or an object,” among various enumerated risks. TEX . CIV . PRAC. & REM . CODE ANN .
§ 87.003.
         Section 87.004 also provides exceptions to the limitation on liability of the Equine Activity
Act. Although the Legislature wanted to provide protection from lawsuits for those involved in
livestock operations, the protection was balanced with a recognition that a completely unskilled
rider, ignorant of basic horsemanship, should be protected from dangers of which they would be
unaware due to their inexperience.
         Two provisions of Section 87.004 relate to the merits of Lee’s litigation. First, a defendant
may be held liable for damages if “the person provided the equine or livestock 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 or livestock show and determine the ability of the participant to safely
manage the equine or livestock animal, taking into account the participant’s representations of
ability[.]” TEX . CIV . PRAC. & REM . CODE ANN . § 87.004(2). A defendant can also be held liable for
injuries if
           “the injury or death was caused by a dangerous latent condition of and for which warning signs,
           written notices, or verbal warnings were not conspicuously posted or provided to the participant, and
           the land was owned, leased, or otherwise under the control of the person at the time of the injury or
           death and the person knew of the dangerous latent condition.”

TEX . CIV . PRAC. & REM . CODE ANN . § 87.004(3).
        The present case is exactly the manner of litigation the Legislature sought to address in
enacting Chapter 87 of the Texas Civil Practices and Remedies Code. As noted in Chief Justice
Worthen’s opinion, whether the defendant owed a duty to the plaintiff under Section 87.003 is a
question of law for the trial court to decide.
        The first issue raised by Lee is whether Loftin made the appropriate inquiry regarding Lee’s
riding ability, as provided in Section 87.004’s Exceptions to Limitation on Liability. TEX . CIV .


           (1) the propensity of an equine or livestock 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 or livestock animal’s
           reaction to sound, a sudden movement, or an unfamiliar object, person, or other animal; (3) with
           respect to equine activities, certain land conditions and hazards, including surface and subsurface
           conditions; (4) a collision with another animal or an object; or (5) the potential of a participant to act
           in a negligent manner that may contribute to injury to the participant or another, including failing to
           maintain control over the equine or livestock animal or not acting within the participant’s ability.

T EX . C IV . P RAC . & R EM . C O D E A N N .   § 87.003.




                                                              20
PRAC. & REM . CODE ANN . § 87.004(2). It is significant that the Legislature did not include a list of
questions one is to ask to establish a participant’s abilities, nor are there any criteria provided to
assess riding skills. Inquiries regarding riding ability would logically be more in-depth where the
situation required more advanced riding skills. Thus, there should be more questions where a
participant wanted to ride in a competitive calf roping or barrel racing event than would be necessary
if a participant wanted to ride in a sedate trail ride.
         The issue before the trial court was whether there was any genuine issue of material fact that
would preclude the granting of Loftin’s summary judgment motion. The trial court considered the
entire summary judgment evidence, including the submitted excerpts of Loftin’s and Ms. Lee’s
depositions, in determining whether Loftin’s inquiry was sufficient to apprise her of Lee’s riding
ability. The trial court ruled there was not, and granted Loftin’s motion.
         Lee testified that she and her husband had owned horses since 1983 or 1984, and at the time
of the deposition, they owned twelve horses. She admitted that she rides the horses, had been riding
horses for “quite some time,” but “not very often.” Lee admitted she knew how to ride a horse, and
needed no training on the day of the accident, saying that she did not need any training “as far as just
getting on and riding” the horse. She admitted the horse was gentle. Lee agreed with the statement
that “there is nothing that [Loftin] did or didn’t do with regard to this horse as far as checking into
your ability to ride that horse? You had the ability to do it, right?”
         Lee admitted she had talked to the Loftins previously about wanting to go riding with them,
and so the Loftins called and invited her. Lee’s experience as a rider and as one knowledgeable about
horses was demonstrated in her testimony regarding events immediately preceding the accident. Lee
said she felt the horse growing nervous as the horse walked into the mud. Lee admitted she had
“enough experience with horses to realize that if they get something wrapped around their flank,
they’re going to jump.” She also agreed that the horse’s jumping when the vine was wrapped around
the horse’s leg “would be something you would expect in a horse’s normal conduct,” and that “that’s
one of the dangers that happens when you ride a horse, isn’t it?” She also admitted that she “realized
that things like this could happen with horses even before this accident,” and agreed “that’s
something that’s just kind of inherent in the risk of riding a horse.” Lee concluded her deposition
with the statement that “I’m not upset with the fact that they asked me to come over and ride or
anything like that. I have nothing against them whatsoever. Probably the biggest thing is the poor
choice of riding. I look back and we shouldn’t have been riding on the trail.”
         In her Response to Loftin’s motion for summary judgment, Lee asserted that “although they
owned horses, she did not ride them very often” and had not ridden a horse in the past several years
“more than three or four times.”
         The summary judgment evidence supports the trial court’s findings that there is no fact issue
regarding the exceptions provided in Section 87.004, in that Lee acknowledged “there was nothing
that [Loftin] did or didn’t do with regard to this horse as far as checking into your [Lee’s] ability to
ride.’” Lee admitted she was familiar with horses and their behavior, and of the dangers of riding
them. Lee further admitted she rode horses.
         Therefore, I would hold that the evidence contained in the summary judgment motions clearly
indicated that Mr. and Mrs. Loftin’s discussion with Lee prior to allowing her to ride their horse met
the requirements of Section 87.004(2), as was found by the trial court. I would sustain the trial
court’s ruling on that facet of Lee’s appeal.




                                                  21
         Lee’s second issue addressed the alleged “dangerous latent18 condition” of the land. In order
to hold a defendant liable for injuries, the statute requires evidence that “the land be owned, leased,
or otherwise under the control of the person at the time of the injury or death and the person knew
of the dangerous latent condition.” TEX . CIV . PRAC. & REM . CODE ANN . § 87.004(3). This provision
is logical: if the defendant did not own or control the property, the defendant would be unable to
conspicuously post warning signs. Further, in order to expose a defendant to liability, the defendant
must be shown to have known of the existence of a dangerous latent condition of the land. If a
defendant either did not own or control the property, or did not know of the latent condition of the
land, the statutes’s exception to the limitation of liability would not apply.
         There is no question that the summary judgment evidence established that the Loftins did not
own or control the land on which the accident occurred. Thus, the first requirement for the exception
of the limitation to apply fails. Without contradiction, Loftin testified in her deposition that the land
was owned by her neighbor who, at some unknown time in the past, had evidenced his acquiescence
to her riding on his property.19 Since Loftin neither owned nor leased the property, the question
arises: how did Loftin have “control of the property” in such manner as to require her, much less to
permit her, to post signs or warn Lee of “latent dangers” of the land? Clearly, based on the evidence
before the trial court, Loftin did not have any control of the land, but, rather, had merely a
suggestion from her neighbor that he did not object to her riding on the land. Certainly, without any
right to control the land, it follows Loftin similarly had no right to “conspicuously post[]” warning
signs or notices on someone else’s property. Thus, the evidence adduced at the summary judgment
hearing fails to comport with the requirements that the land be under Loftin’s ownership or control.
         Even more significant to the analysis of this case, the evidence established that the
“dangerous latent condition of the land” was unknown to Loftin. Lee’s First Amended Original
Petition alleged that she

         was unfamiliar with the area and the choices for riding trails and the Plaintiff had to rely and depend
        upon Defendant’s judgment concerning the selection of riding trails that would be reasonably safe and
        appropriate under the existing circumstances. The Plaintiff was following behind the Defendant and
        as they proceeded with their trail ride along the particular path chosen by the Defendant, it became
        very thick and overgrown with trees and bushes. At this point in the trail, the Defendant changed
        places so that the Plaintiff was riding in front of her. As the Plaintiff then proceeded forward she came
        upon a wet, boggy area in the woods and her riding horse because uneasy and anxious. Suddenly, the
        Defendant’s horse being ridden by the Plaintiff bolted forcefully away from the boggy area causing
        the Plaintiff to be thrown off the horse, resulting in her injuries. This was not consistent with the
        evidence.




        18
           A “latent” condition of the land is one that is “concealed.” Little v. Needham, 236 S.W .3d 328, 333
(Tex. App.–Houston [1st Dist.] 2007, no pet.) (citing B LACK ’S L AW D ICTION ARY 898 (8th ed. 2004)).

        19
             Q:   And did you have [the land owner’s] permission to ride on his property?

        [Terri Loftin] A: I didn’t ask him that day.

        Q:        Had you asked him on other days?

        A:        He had just made the comment that he had cleaned out some of the trails if we wanted to ride, that
                  they were there.

                                                          22
          Months after Loftin’s neighbor mentioned that she could ride on his property,20 when riding with
Lee on the day of the accident, although it was Loftin who initially led them onto the neighbor’s property
at the beginning of their trail ride, it was Lee who took over the lead position on the ride. It was Lee who
led them into a boggy, vine and brush-covered area. Lee described how Loftin, who had been leading,
“moved over, and I don’t remember if she got off her horse. I don’t even recall. I just know she moved
over and I kept going, my horse just kept going.” Therefore, it was Lee who was responsible for choosing
the course of the trail ride and was also responsible for her horse finding itself in the boggy mud,
surrounded by brush and trees.21
         Lee testified at her deposition that she was the one who directed her horse into a “really boggy”
area. Her horse began to sink into the mud, and the horse began to get nervous. She decided to try to get
him out of the boggy area and she turned her horse and headed towards a hill, and as it was going up the
hill, the horse bolted. Lee admitted that she could see the mud or soft ground before she directed her horse
into the boggy area. Lee admitted she did not tell Loftin, now following her lead into the bog, that she
wanted to turn around. And Lee concluded her deposition by responding to the question, “what do you
claim that Terri [Loftin] did wrong in this case? Why are you suing her?” by responding that she was “not
upset with the fact that they asked me to come over and ride or anything like that. I have nothing against
them whatsoever. Probably the biggest thing is the poor choice of riding. I look back and we shouldn’t
have been riding on the trail.” But yet the trail on which they were riding was one that Ms. Lee herself,
not Loftin, chose to lead them.
         Further, Loftin stated in her deposition that she did not see any wet spots, boggy spots, or standing
water until after the accident. Loftin also testified that she had ridden over the area of the accident
previously and it was not “boggy and wet and anything to avoid.” Lee, by contrast, said they had already
crossed a wet area “on the other side of the road,” but after she rode past Loftin, her “horse just kept going.
It was really boggy. . . .” The latent boggy condition was unknown to Loftin, preventing her from warning
Lee. However, Lee had seen wet areas earlier in their ride, and, as the lead rider who was setting the route
for the ride, Lee was, or should have been, on notice that wet conditions could possibly be found on the
land.
         Further, Loftin said the horse lunged and caused the accident after a vine touched the horse’s leg
and “went up into his stifle22 and [the horse] lunged.” When asked what she had done “in the past to make
sure that the trail was clear of any debris and vines and limbs and brush,” Loftin responded that it was
February, and there had been no recent new growth and that she had ridden the same route previously, and
that it was “clear for riding purposes.” When Lee took the lead, she was responsible for deciding the
course they rode. The owner of the land on which they rode had evidently mowed some riding “paths”


            20
              The neighbor had also mentioned he had recently mowed “paths” on his property, but the vegetation had
   sincere grown. Lee described the area in the woods into which she led the “trail ride” as being “pretty
   overgrown. . . . W hen I was riding, there was [sic] trees that were brushing the sides of my legs on both sides when
   we rode.”

            21
               There is a question of how overgrown the area was where the accident occurred. Lee described it as very
   overgrown with trees and bushes all around, making it difficult to turn her horse around and leave the area without
   crossing through the water-soaked land. Loftin said there were trees on one side, but the area was open on the other.
   However, this factual inconsistency is not germane to the disposition of the case.

            22
              A stifle is “the joint of the hind leg analogous to the human knee in certain quadrupeds, such as the
   horse.” A M ERICAN H ERITAGE D ICTIO N ARY O F THE E N GLISH L AN GU AGE 1266 (1978).

                                                             23
months before. However, in the intervening months, vegetation had grown back up. Had Lee wanted to
ride in a riding corral, they could have done so. However, she chose to embark on a trail ride with Loftin.

         Because the land was neither owned by nor under the control of Loftin, and both parties agreed it
had been Lee who led them into the boggy place where the horse jumped, and because the boggy condition
of the land was unknown to Loftin, the trial court correctly entered its summary judgment in favor of Loftin
on the issue of the exception to limitation of liability contained in Section 87.004(3) regarding the
dangerous latent condition of the land. I would sustain the trial court’s entry of summary judgment in favor
of Loftin on the second of her two issues on appeal.
         Lee’s appeal is predicated on two issues: That the Loftins failed to adequately inquire as to her
riding ability, and that the Loftins failed to warn her of the dangerous latent condition of the land where
the accident occurred. Because the evidence supports the trial court’s decision to grant Loftin’s summary
judgment motion, I would affirm.


                                                                 SAM GRIFFITH
                                                                    Justice




                                               (PUBLISH)




                                                    24
                                    COURT OF APPEALS
             TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                               JUDGMENT
                                               JANUARY 30, 2009

                                           NO. 12-07-00143-CV
                                       JANICE LEE AND BOB LEE,
                                               Appellants
                                                  V.
                                            TERRY LOFTIN,
                                               Appellee


                             Appeal from the 159th Judicial District Court
                        of Angelina County, Texas. (Tr.Ct.No. CV-39,857-06-08)
                       THIS CAUSE came to be heard on oral argument and the appellate record and briefs

filed herein, and the same being inspected, because it is the opinion of this Court that there was error in

the judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this Court that the

judgment be REVERSED and the cause REMANDED to the trial court FOR FURTHER PROCEEDINGS; and

that this decision be certified to the court below for observance.

                       James T. Worthen, Chief Justice.
                       Hoyle, B., Justice, concurring.
                       Griffith, S., Justice dissenting.
                         THE STATE OF TEXAS
                            MANDATE
                        *********************************************



TO THE 159TH JUDICIAL DISTRICT COURT OF ANGELINA COUNTY, GREETINGS:

       Before our Court of Appeals for the 12th Court of Appeals District of Texas, on the 30th day of
January, 2009, the cause upon appeal to revise or reverse your judgment between

                             JANICE LEE AND BOB LEE, Appellants

                      NO. 12-07-00143-CV; Trial Court No. CV-39,857-06-08

                              Opinion by James T. Worthen, Chief Justice.

                                     TERRY LOFTIN, Appellee

was determined; and therein our said Court made its order in these words:

        “THIS CAUSE came to be heard on oral argument and the appellate record and briefs filed
herein, and the same being inspected, because it is the opinion of this Court that there was error in the
judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this Court that the
judgment be REVERSED and the cause REMANDED to the trial court FOR FURTHER PROCEEDINGS; and
that this decision be certified to the court below for observance.”

       WHEREAS, WE COMMAND YOU to observe the order of our said Court of Appeals for the
Twelfth Court of Appeals District of Texas in this behalf, and in all things have it duly recognized,
obeyed, and executed.

        WITNESS, THE HONORABLE JAMES T. WORTHEN, Chief Justice of our Court of
Appeals for the Twelfth Court of Appeals District, with the Seal thereof affixed, at the City of Tyler,
this the ______ day of __________________, 200____.

                                         CATHY S. LUSK, CLERK


                                         By:_______________________________
                                           Deputy Clerk
