                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-1144



HEATHER RUTECKI,

                Plaintiff - Appellant,

           v.


CSX HOTELS, INCORPORATED, d/b/a The Greenbrier Resort,

                Defendant - Appellee.




                            No. 07-1711



HEATHER RUTECKI,

                Plaintiff - Appellant,

           v.


CSX HOTELS, INCORPORATED, d/b/a The Greenbrier Resort,

                Defendant - Appellee.



Appeals from the United States District Court for the Southern
District of West Virginia, at Beckley.     Thomas E. Johnston,
District Judge. (5:05-cv-00226)


Argued:   May 14, 2008                    Decided:   August 19, 2008
Before MOTZ, Circuit Judge, HAMILTON, Senior Circuit Judge, and
Claude M. HILTON, Senior United States District Judge for the
Eastern District of Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Roy D. Wasson, WASSON & ASSOCIATES, CHTD, Miami, Florida,
for Appellant.    James Wade Turner, HUDDLESTON & BOLEN, LLP,
Huntington, West Virginia, for Appellee. ON BRIEF: W. Sam Holland,
THE FERRARO LAW FIRM, Miami, Florida, for Appellant. Curtis R. A.
Capehart, HUDDLESTON & BOLEN, LLP, Huntington, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     Heather A. Rutecki brought suit against CSX Hotels, Inc.,

d/b/a The Greenbrier Resort (Greenbrier) for injuries she sustained

during a guided horseback ride at the resort.       Rutecki’s complaint

asserts   three   causes   of   action.   First,   Rutecki   argues   that

Greenbrier violated the West Virginia Equestrian Responsibilities

Act (the Act), W. Va. Code § 20-4-1 et seq.        Next, Rutecki argues

that Greenbrier committed gross negligence.           Finally, Rutecki

argues that Greenbrier committed ordinary negligence. The district

court granted Greenbrier’s motion for summary judgment on all three

counts.   We affirm.



                                    I.

     Rutecki, an attorney from Florida, planned a visit to the

Greenbrier with her mother for September 12, 2004.           While making

reservations for her stay, she inquired about horseback riding

opportunities and scheduled a guided group ride.        She was told by

Greenbrier staff that all necessary equipment would be provided for

her and that she did not have to bring her own newly-purchased

equipment. Rutecki had been horseback riding on multiple occasions

prior to her trip to the Greenbrier.

     On September 13, Rutecki went to Kate’s Mountain Outfitters,

the Greenbrier’s outdoor activities purveyor.       There was no record

of Plaintiff’s group ride reservation, so she scheduled a one-on-


                                     3
one guided trail ride.   She was given a riding helmet and presented

with a prepared statement regarding West Virginia’s liability

limitations,   restrictions,   and    responsibilities   relative   to

equestrian activities.   Rutecki printed and signed her name on the

prepared statement, but claims she did not read it as she was told

that it was a “sign-in sheet.”         The prepared statement also

contained a place for the guest to fill in his or her level of

riding experience, which Rutecki did not do.

     Karl Diem, a trail guide on the Greenbrier’s equestrian staff,

rode to the riding circle on a horse named “Thunder” leading a

horse named “Trump” for Plaintiff to ride.     Diem had never ridden

Thunder before.   Plaintiff mounted Trump and the ride began.

     Diem and Rutecki successfully completed a portion of the ride

without incident.    After entering a riding trail through a wooded

hillside, Diem’s horse, Thunder, stopped on the trail and refused

to advance.    Diem attempted to get Thunder moving by talking,

making a “kissing” noise, and using his heels.       He then struck

Thunder with a riding crop multiple times. After being struck with

the crop, Thunder turned off the trail and attempted to go up the

adjacent hillside.    Diem lost his balance and jumped off Thunder

holding the reins. During the Diem-Thunder melee, Rutecki’s horse,

Trump, spun around and ran back down the trail causing Plaintiff to

be thrown off and to sustain severe physical injuries.




                                  4
      Rutecki filed suit on March 16, 2006.          Prior to the end of

discovery, but after Diem and Rutecki testified at deposition,

Greenbrier filed a motion for summary judgment.           While the motion

was pending but not fully briefed, Rutecki’s counsel withdrew and

Rutecki filed multiple pro se responses in opposition to the

motion.      Rutecki successfully hired new counsel prior to the

district court’s final pretrial conference in December, 2006.            At

the final pretrial conference, the district court inquired as to

whether Rutecki wished to conduct further discovery, and she

replied that she wanted the case to proceed to trial as scheduled,

but requested leave to make supplemental filings on Greenbrier’s

summary judgment motion. The district court permitted both parties

to   make    supplemental   filings    and   ultimately   entered   summary

judgment in favor of Greenbrier.



                                      II.

      This Court reviews de novo the district court’s entry of

summary judgment.     See   Nat’l City Bank of Ind. v. Turnbaugh, 463

F.3d 325, 329 (4th Cir. 2006)(“We review a grant of summary

judgment de novo”). Summary judgment is appropriate where there is

no genuine issue as to any material fact. See Fed. R. Civ. P.

56(c).      Once a motion for summary judgment is properly made and

supported, the opposing party has the burden of showing that a

genuine dispute exists.      See Matsushita Elec. Indus. Co. v. Zenith


                                      5
Radio Corp., 475 U.S. 574, 586-87 (1986).                 A material fact in

dispute appears when its existence or non-existence could lead a

jury to different outcomes.          See Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986).           A genuine issue exists when there is

sufficient evidence on which a reasonable jury could return a

verdict    in   favor   of   the    non-moving   party.      See   id.     Mere

speculation by the non-moving party “cannot create a genuine issue

of material fact.”       Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.

1985); see also Ash v. United Parcel Serv., Inc., 800 F.2d 409,

411-12 (4th Cir. 1986).            Summary judgment is appropriate when,

after discovery, a party has failed to make a “showing sufficient

to establish the existence of an element essential to that party’s

case, and on which that party will bear the burden of proof at

trial.”    Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).             When

a motion for summary judgment is made, the evidence presented must

always be taken in the light most favorable to the non-moving

party.    See Smith v. Virginia Commonwealth Univ., 84 F.3d 672, 675

(4th Cir. 1996)(en banc).



                                       A.

     Rutecki first challenges the district court’s decision to

grant summary judgment on her claims under the West Virginia

Equestrian      Activities   Responsibility      Act.     The   West   Virginia

Equestrian Activities Responsibility Act, W. Va. Code § 20-4-1 et


                                        6
seq.,   states   as   its   purpose   “to   define   those   areas   of

responsibility and those affirmative acts for which the operators

of equestrian businesses shall be liable . . . and to further

define those risks which the participants expressly assume” because

“there are inherent risks in equestrian activities . . . which are

essentially impossible for the operators of equestrian businesses

to eliminate.”   W. Va. Code § 20-4-1.

     The Act provides four duties of horsemen relevant to this

case, requiring every horseman to:

     (1) Make reasonable and prudent efforts to determine the
     ability of a participant to safely engage in equestrian
     activity, to determine the ability of the horse to behave
     safely with the participant, and to determine the ability
     of the participant to safely manage, care for and control
     the particular horse involved;

     (2) Make known to any participant any dangerous traits or
     characteristics or any physical impairments or conditions
     related to a particular horse which is involved in
     equestrian activity of which the horseman knows or
     through the exercise of due diligence could know; . . .

     (4) In providing equipment or tack to a participant, make
     reasonable and prudent efforts to inspect such equipment
     or tack to assure that it is in proper working condition
     and safe for use in the equestrian activity;

     (5) Prepare and present to each participant or
     prospective participant, for his or her inspection and
     signature, a statement which clearly and concisely
     explains the liability limitations, restrictions and
     responsibilities set forth in this article.

W. Va. Code § 20-4-3.    In its liability section, the Act provides

in relevant part that:

     (a) A horseman shall be liable for injury, loss or damage
     caused by failure to follow the duties set forth in

                                  7
     section three of this article where the violation of duty
     is causally related to the injury, loss or damage
     suffered . . .

     (b) A horseman shall be liable for acts or omissions
     which constitute gross negligence or willful and wanton
     conduct which is the proximate cause of injury to a
     participant . . . .

W. Va. Code § 20-4-5.   With regard to duties of participants, the

Act states that:

     It is recognized that equestrian activities are hazardous
     to participants, regardless of all feasible safety
     measures which can be taken.

     Each participant . . . expressly assumes the risk of and
     legal responsibility for any injury . . . which results
     from participation in an equestrian activity.        Each
     participant shall have the sole individual responsibility
     for knowing the range of his or her own ability to
     manage, care for, and control a particular horse or
     perform a particular equestrian activity, and it shall be
     the duty of each participant to act within the limits of
     the participant’s own ability, to maintain reasonable
     control of the particular horse . . . .

W. Va. Code § 20-4-4.

     The district court found that there was a genuine issue of

material fact with respect to Greenbrier’s compliance with the

first duty required of horsemen under the Act.    The district held

that a jury could find that Greenbrier failed to make a reasonable

effort to determine Rutecki’s riding ability generally and also

with respect to her ability to ride Trump.   However, in addition to

finding that Greenbrier did not violate any of the other relevant

duties under the Act, the district court found that there was no

evidence in the record to establish that Greenbrier’s actions were


                                 8
“causally   related”      to    Rutecki’s     injuries,         as   required     for    a

horseman to be liable under the Act.                We agree with the district

court.

      The Act’s first duty required Greenbrier to make a reasonable

effort to determine Rutecki’s riding ability. Greenbrier presented

Rutecki with a sheet containing liability limitation language and

a space for Rutecki to fill in her level of horseback riding

experience.       While Rutecki signed the liability limitation form,

she   did   not    fill   out    the    portion     indicating         her   level      of

experience.       Consequently, a jury could find that Greenbrier did

not make a reasonable effort to determine Rutecki’s riding ability,

as Rutecki testified at deposition that Greenbrier made no follow-

up inquiry to determine her ability.            In addition, the Act’s first

duty requires horsemen to match the participant’s ability with the

particular horse she will ride.               Since a jury could reasonably

conclude that Greenbrier did not reasonably ascertain Rutecki’s

riding ability, a jury could also conclude that Greenbrier failed

to determine Rutecki’s ability to manage Trump.

      The Act’s second duty requires horsemen to make known to a

participant       any   dangerous      conditions     of    a    particular     horse.

Rutecki provides no evidence that either Trump or Thunder possessed

any dangerous characteristics at the time of her trail ride.

Moreover, the record shows that Trump was successfully used as a

trail    horse    for   ten    years    and   there    is       no   indication    that


                                          9
Greenbrier had experienced any problems with Thunder prior to

Rutecki’s injury. Consequently, no jury could find that Greenbrier

breached this duty.

       The Act’s third duty requires horsemen to inspect equipment

provided to participants to insure that it is in proper working

condition. Rutecki presents no evidence that the equipment she was

provided with was defective in any way.           However, she argues that

Greenbrier’s failure to provide her with additional equipment –

specifically riding boots and pants – constitutes a violation of

this   duty.     This   argument    fails   because    Rutecki   presents   no

evidence that riding boots or pants were necessary for the ride she

took or that Greenbrier’s failure to provide such equipment was

unreasonable.

       The   Act’s   fourth    duty    requires       horsemen   to    present

participants    with    a   clear   statement   of     the   Act’s    liability

limitation.    A clear and concise statement of the Act’s liability

limitation was presented to and signed by Rutecki on the date of

her ride, thus satisfying Greenbrier’s obligation to comply with

this duty.     Rutecki argues, however, that because she was told to

sign a “sign-in sheet” she did not realize she was being presented

with a liability limitation statement.                However, the document

signed by Rutecki is titled “The Greenbrier Notice, Release, and

Indemnification,” and contains a paragraph explaining the various




                                      10
duties of horsemen and riders.    Greenbrier has clearly complied

with this duty in this case.

     While we conclude Greenbrier’s compliance with the Act’s first

duty is a material fact in dispute, in order to survive summary

judgment, Rutecki must also point to a disputed material fact

concerning the causation required by the Act. For Greenbrier to be

liable, its failure to ascertain Rutecki’s riding ability and her

ability to control Trump must be “causally related” to the injuries

she sustained.    W. Va. Code. § 20-4-5(a).    In contrast, to be

liable for gross negligence under the Act, Greenbrier’s actions

must have proximately caused the participant’s injuries.   Id. at §

20-4-5(b).   Consequently, the “causally related” standard requires

a degree of causation somewhat less than that required by the

familiar proximate cause standard.

     While the West Virginia legislature has not explicitly defined

the “causally related” standard, a court in West Virginia has had

occasion to interpret the standard in the context of another

statute.   See Hardin v. Ski Venture, 848 F. Supp. 58 (N.D. W. Va.

1994)(interpreting the West Virginia Ski Responsibility Act, W. Va.

Code § 20-3A-1 et seq., which contains the same “causally related”

standard).   In Hardin, the court denied the defendant’s motion for

summary judgment holding that the plaintiff’s expert witness had

set forth sufficient evidence to create a material fact issue by

“opin[ing], by deposition and an accompanying report, that the


                                 11
accident resulted from the making of excessively wet snow which

stuck to plaintiff’s goggles and obscured his vision. In addition,

plaintiff’s expert believes that the placement of the snow-making

machine . . . may have contributed to the accident.”                 Id. at 59.

        Here, Rutecki has not presented any evidence that could lead

a jury to conclude that her injuries were causally related to

Greenbrier’s       failure   to    assess     her   horseback   riding   ability.

Indeed,      had   Greenbrier     more   thoroughly    investigated      Rutecki’s

ability, they would have found that she had been riding on multiple

prior occasions.         Without any evidence that Trump or Thunder could

be ridden only by more experienced riders, there is no evidence

that Greenbrier would have had Rutecki ride a different horse or a

different route given her level of experience.                  Consequently, we

agree       with   the   district    court     that    “[r]egardless     of   what

[Greenbrier] may or may not have done, the intervening event of the

inexplicable behavior of the two horses appears to be the cause of

this accident.”

     Rutecki argues that the district court erred in granting

summary judgment based on a lack of evidence of causation because

Greenbrier did not move for summary judgment on causation grounds.1

See John Deere Co. v. American Nat. Bank, 809 F.2d 1190 (5th Cir.



        1
      Greenbrier’s initial motion for summary judgment advances the
theory that the Act precludes liability for injuries sustained in
a fall from a horse. The district court rejected this argument and
Greenbrier does not pursue it on appeal.

                                         12
1987)(reversing summary judgment where, without adequate notice to

the plaintiff, the district court granted defendant’s motion on

grounds not urged by defendant).             However, “district courts are

widely acknowledged to possess the power to enter summary judgments

sua sponte, so long as the losing party was on notice that she had

to come forward with all of her evidence.”              Hughes v. Bedsole, 48

F.3d 1376, 1379 (4th Cir. 1995)(quoting Celotex, 477 U.S. at 326).

     The    record    indicates    that      Rutecki    received    notice   that

causation was a live issue on summary judgment.             First, Greenbrier

moved for summary judgment on Rutecki’s entire complaint, and

success on the merits of Rutecki’s claim under the Act would

require proof of causation.        Second, in a supplemental opposition

brief, Rutecki specifically argued that her injuries were caused by

Greenbrier’s actions and referenced evidence in the record in an

attempt to highlight a material fact in dispute.                   Third, in its

response to Rutecki’s supplemental finding, Greenbrier explicitly

argued   that   its   actions     had   not    caused    Rutecki’s     injuries.

Consequently, it is clear that Rutecki had notice that causation

was an issue the district court would consider on defendant’s

motion for summary judgment.



                                        B.

     West    Virginia     law     “recognizes      a     distinction     between

negligence, including gross negligence and wilful [sic], wanton,


                                        13
and reckless misconduct.”      Mandolidis v. Elkins Indus., 246 S.E.2d

907, 913 (W. Va. 1970).       While the West Virginia Supreme Court of

Appeals has never provided its own definition of gross negligence,

it has interpreted Virginia law to define gross negligence as the

“degree of negligence which shows an utter disregard of prudence

amounting to complete neglect of the safety of another.”             Dodrill

v. Young, 102 S.E.2d 724, 730 (W. Va. 1958).           Virginia courts have

further     defined   gross   negligence   as   “an    utter   disregard   of

prudence, amounting to complete neglect of the safety of another,

such as to be shocking to reasonable men,” Finney v. Finney, 125

S.E.2d 191, 193 (Va. 1962), and the “absence of slight diligence,

or the want of even scant care.”       Colby v. Boyden, 400 S.E.2d 184,

189 (Va. 1991)(internal quotation omitted).

      We agree with the district court that Rutecki has produced “no

affidavits, no deposition testimony, and no expert opinion that Mr.

Diem’s conduct even strayed from what was reasonable under the

circumstances, let alone to such a degree as to show an utter

disregard for prudence.”       The only evidence Rutecki points to is

her   own   deposition   testimony    describing      Diem’s   struggle   with

Thunder prior to her injury.         No reasonable juror could conclude

from this testimony that Diem’s conduct was without prudence to the

point of being shocking.        Moreover there is no evidence in the

record to suggest that Greenbrier’s actions were the direct or

proximate cause of Rutecki’s injuries.


                                     14
                                C.

     We agree with the district court that the West Virginia

Equestrian Activities Responsibility Act displaces actions for

ordinary negligence. The Act states that “there are inherent risks

in equestrian activities . . . which are essentially impossible for

the operators of equestrian businesses to eliminate.”   W. Va. Code

§ 20-4-1.   To permit an action for ordinary negligence against a

horseman operating under the Act would contravene its purpose.



                               III.

     For the foregoing reasons, the judgment of the district court

is affirmed.2

                                                          AFFIRMED




     2
      In No. 07-1711, the Court affirms the district court’s award
of costs.

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