                                                                                FILED
                                                                           May 05 2020, 8:39 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEYS FOR APPELLANTS                                   ATTORNEY FOR APPELLEE
      Duke T. Escue                                              Robert F. Ahlgrim, Jr.
      Hilary Ruth Hall                                           State Auto Insurance House
      Walter J. Alvarez                                          Counsel
      Walter J. Alvarez, P.C.                                    Carmel, Indiana
      Crown Point, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Kathleen Burdick and Bruce                                 May 5, 2020
      Burdick, Individually, and as                              Court of Appeals Case No.
      Husband and Wife,                                          19A-CT-2739
      Appellants-Plaintiffs,                                     Appeal from the
                                                                 Lake Circuit Court
              v.                                                 The Honorable
                                                                 Marissa J. McDermott, Judge
      Julie Romano,                                              Trial Court Cause No.
      Appellee-Defendant.                                        45C01-1310-CT-152




      Kirsch, Judge.


[1]   Kathleen Burdick (“Burdick”) and Julie Romano (“Romano”) were riding their

      horses in a horse arena when Burdick fell and suffered serious injuries. Burdick

      and her husband Bruce Burdick sued Romano, and the jury returned a verdict

      for Romano. Burdick raises four issues, which we consolidate and restate as:


      Court of Appeals of Indiana | Opinion 19A-CT-2739 | May 5, 2020                               Page 1 of 18
              I. Whether the trial court abused its discretion by refusing to read
              jury instructions on negligence;


              II. Whether the trial court abused its discretion by reading a jury
              instruction on inherent risks of equine activities; and


              III. Whether the trial court abused its discretion by reading a jury
              instruction on incurred risk.


[2]   We affirm.


                                  Facts and Procedural History
[3]   Romano was renting and living on a property in Lowell, Indiana, which she

      called “Serenity Farms.” Tr. Vol. 2 at 111. On October 31, 2011, Burdick, and

      her friend, Kathy Jacobsma (“Jacobsma”), took Burdick’s horse Chip to

      Serenity Farms for boarding and training. Tr. Vol. 3 at 228-32. Burdick is an

      expert in horse training and riding. Id. at 219-20; Tr. Vol. 4 at 59, 61. Burdick

      came to Serenity Farms almost every day to train Chip in the horse arena. Tr.

      Vol. 3 at 231. The arena was specifically and exclusively designed for horse

      riding and training. Tr. Vol. 4 at 66. It was not designed or used for any other

      purpose, such as providing a venue for cattle shows. Id.


[4]   Chip was a gelded, laid back, and lazy horse. Tr. Vol. 3 at 223. Romano’s

      horse Sheza was aggressive and known for kicking other horses. Id. at 239.

      Burdick was aware that Sheza had a history of kicking other horses and had

      witnessed Sheza kick other horses. Id. Romano acknowledged that Sheza was

      aggressive, posting a picture of Sheza on Facebook and stating: “[I] love love

      Court of Appeals of Indiana | Opinion 19A-CT-2739 | May 5, 2020               Page 2 of 18
      love this pic! It’s a classic Sheza pic! Ears pinned back and everything. My

      pretty moody bitch! Haha! Gotta love her!” Tr. Vol. 2 at 132-33.


[5]   On November 5, 2011, Burdick and Jacobsma went to Serenity Farms to ride

      horses in a pasture with Romano. Id. 241-42; Tr. Vol. 3 at 235-36. Romano

      warned Burdick and Jacobsma several times to stay away from Sheza because

      Sheza tended to back up and kick other horses. Tr. Vol. 2 at 247; Tr. Vol. 3 at

      239.


[6]   Three days later, on November 8, 2011, Burdick returned to Serenity Farms

      and began to ride Chip in the arena. Tr. Vol. 3 at 240-41. Soon thereafter,

      Romano entered the arena with Sheza and set up poles, and Burdick and

      Romano began to ride their horses around the poles. Id. at 241-43. Burdick

      then demonstrated to Romano how desensitized and laid-back Chip was by

      dismounting Chip, taking off her hoodie, and placing her hoodie over Chip’s

      head. Id. at 243. Chip remained calm. Id. Burdick then got back on Chip, and

      she and Romano began riding their horses around the perimeter of the arena.

      Id. at 244. About two minutes later, Romano stopped and dismounted Sheza.

      Id. Burdick was approximately twelve feet behind Sheza and still sitting on

      Chip. Id. Burdick assumed that Romano was just going to tighten Sheza’s

      saddle, but Romano dropped Sheza’s reins and walked away from Sheza

      without tying her up. Romano headed to the southwest corner of the arena,

      where there was a barrel that she intended to retrieve to show Burdick a trick in

      which Sheza would push the barrel with her nose as Romano was riding her.

      Tr. Vol. 2 at 137; Tr. Vol. 3 at 244-45.

      Court of Appeals of Indiana | Opinion 19A-CT-2739 | May 5, 2020          Page 3 of 18
[7]    Burdick testified that as Romano returned with the barrel, Sheza spooked and

       suddenly started to back up, with Sheza’s rear end coming directly towards

       Burdick and Chip. Tr. Vol. 3 at 245. Burdick testified that she “saw two feet

       hit, felt a blow under her chin, and then everything went black.” Id. Burdick

       testified that this happened so quickly that she did not have time to react or take

       evasive maneuvers. Tr. Vol. 4 at 69-70.


[8]    At trial, Romano provided a different account. She testified that she walked

       Sheza to the location of the barrel and continued to hold Sheza’s reins. Tr. Vol.

       2 at 142-43. Burdick was located approximately forty feet away, when Chip

       executed a right turn, and then abruptly stopped, causing Burdick to lose her

       balance and fall off Chip. Id. at 143-45.


[9]    Burdick was in the hospital almost one month to recover from her injuries,

       which included a broken shoulder and a brain injury. Tr. Vol. 3 at 248; Tr. Vol.

       4 at 24-26, 70-71. Once released from the hospital, Burdick went through

       outpatient therapy for eight months. Tr. Vol. 3 at 248; Tr. Vol. 4 at 5.

       Eventually, Burdick was awarded Social Security Disability due to her injuries

       from the incident. Tr. Vol. 4 at 28.


[10]   On February 24, 2014, Burdick filed an amended complaint, alleging that

       Romano was negligent, grossly negligent, and reckless in her care and control




       Court of Appeals of Indiana | Opinion 19A-CT-2739 | May 5, 2020            Page 4 of 18
       of Sheza. Appellant’s App. Vol. II at 24-29.1 Romano filed two motions for

       summary judgment, and the trial court denied both motions, finding in its

       denial of Romano’s second motion for summary judgment that the “present

       case alleges a personal injury arising out of a horse-related sports activity.”

       Appellee’s Appendix Vol. 2 at 2 (emphasis added). Burdick later filed a motion in

       limine to exclude testimony that Burdick and Romano were sports participants

       engaged in a sporting event at the time of the incident or that Burdick had

       incurred any risk of injury. Appellant’s App. Vol. II at 54-66. On October 18,

       2019, the trial court denied Burdick’s motion in limine. Id. at 113.


[11]   Meanwhile, on October 17, 2019, Burdick had tendered proposed final jury

       instructions, which included instructions on premises liability, duty, negligence,

       and reasonable care. Appellant’s App. Vol. II at 87-90. That same day, Burdick

       tendered the following proposed final instruction:


               Horses are domestic animals. The owner of a domestic animal is
               not liable for injuries caused by the animal unless the animal had
               dangerous propensities known, or which should have been
               known, to the owner. A dangerous propensity is a propensity or
               predictable tendency of an animal to do any act which might
               endanger the safety of person or property in a given situation.
               An owner must exercise reasonable care to guard against a




       1
        The amended complaint also named Joseph R. Verbeek (“Verbeek”) and Christy L. Marcotte (“Marcotte”)
       as defendants. Appellant’s App. Vol. II at 24. The amended complaint alleged that Verbeek and Marcotte
       operated Serenity Farms, a business that boarded, managed, and trained horses, and that Romano was an
       employee of Serenity Farms. Id. at 24-25. On June 22, 2017, Verbeek and Marcotte were dismissed from the
       case with prejudice. Id. at 7.

       Court of Appeals of Indiana | Opinion 19A-CT-2739 | May 5, 2020                             Page 5 of 18
               known dangerous propensity or a known predictable tendency,
               and to prevent injuries reasonably anticipated from them.


       Id. at 91.


[12]   On October 20, 2019, Romano tendered a proposed instruction that alleged

       Burdick was required to prove that Romano was reckless. Appellant’s App. Vol.

       II at 131-33. Romano also tendered other proposed final jury instructions,

       which included a modification of the “sporting event injury” pattern

       instruction, that also required Burdick to show that Romano was reckless. Id.

       at 115, 117-18. On October 21, 2019, Burdick filed a proposed preliminary

       instruction that the jury needed to find that Romano knew, or should have

       known, that Romano’s own Sheza had known dangerous propensities, and a

       known tendency to kick other horses, and that Romano had failed to use

       reasonable care to protect Burdick from Sheza. Id. at 140-42.


[13]   The case proceeded to jury trial on October 28, 2019. Id. at 18-23. The trial

       court refused to read Burdick’s final instructions on premises liability,

       negligence, duty, and reasonable care. Tr. Vol. 4 at 138-44, 200. The trial court

       then read Romano’s proposed instructions on incurred risk, inherent risks of

       equine activities, and sporting event injuries. Id. at 199-200. The jury returned




       Court of Appeals of Indiana | Opinion 19A-CT-2739 | May 5, 2020             Page 6 of 18
       a verdict in favor of Romano.2 Appellant’s App. Vol. II at 23. Final judgment

       was entered on October 31, 2019. Id. at 21. Burdick now appeals.


                                       Discussion and Decision
[14]   Burdick argues that the trial court abused its discretion when it instructed the

       jury. First, she argues the trial court should have read her proposed instructions

       on negligence to the jury. Second, she contends the trial court should not have

       read Romano’s instructions on the inherent risks of equine activities, sporting

       event injuries, and incurred risk.


[15]   The manner of instructing a jury is left to the trial court’s discretion. Kimbrough

       v. Anderson, 55 N.E.3d 325, 339 (Ind. Ct. App. 2016), trans. denied. We consider

       whether: (1) the instruction correctly states the law; (2) the record contains

       evidence to support the instruction; and (3) the substance of the tendered

       instruction is covered by the other instructions that are given. Id. An

       instruction is properly rejected if it could mislead or confuse the jury. Miller v.

       Ryan, 706 N.E.2d 244, 248 (Ind. Ct. App. 1999), trans. denied.


[16]   To determine whether sufficient evidence exists to support an instruction given

       by the trial court, we look only at the evidence most favorable to the appellee

       and any reasonable inferences to be drawn therefrom. Foddrill v. Crane, 894

       N.E.2d 1070, 1078 (Ind. Ct. App. 2008), trans. denied. When a jury is given an




       2
        The jury assigned fault for Burdick’s injuries as follows: Burdick, 65%, and Romano, 35%. Appellant’s App.
       Vol. II at 23.

       Court of Appeals of Indiana | Opinion 19A-CT-2739 | May 5, 2020                                Page 7 of 18
       incorrect instruction, we will not reverse the judgment unless the party seeking

       a new trial shows a reasonable probability that its substantial rights were

       adversely affected. Kimbrough, 55 N.E.3d at 339.


                                      I. Negligence Instructions
[17]   Burdick argues the trial court abused its discretion in refusing to read her

       instructions on negligence, duty, and reasonable care because, she claims, this is

       a simple negligence case. She likens her law suit to a “dog bite” case, where

       “the owner of a dog, with known dangerous propensities, has a duty of

       reasonable care to warn others, and to keep the dog on a leash and/or to tie the

       dog up and/or to lock the dog up.” Appellants’ Amended Br. at 12. See, e.g., Ross

       v. Lowe, 619 N.E.2d 911, 914 (Ind. 1993) (“[T]he owner of a dog is bound to

       know the natural propensities of dogs, and if these propensities are the kind

       which reasonably might be expected to cause injury, the owner must use

       reasonable care to prevent such injuries from occurring.”). Because the

       evidence shows that Romano knew that Sheza had exhibited dangerous

       propensities, i.e., Sheza’s history of kicking other horses, and that Romano

       failed to exercise reasonable care by failing to tie up Sheza once she dismounted

       Sheza, Burdick claims the evidence supported instructing the jury on

       negligence.


[18]   Burdick draws our attention to two cases involving injuries caused by a horse,

       Einhorn v. Johnson, 996 N.E.2d 823 (Ind. Ct. App. 2013), trans. denied, and Heald

       v. Cox, 480 S.W.2d 107 (Mo. Ct. App. 1972), a Missouri case discussed by


       Court of Appeals of Indiana | Opinion 19A-CT-2739 | May 5, 2020           Page 8 of 18
       Einhorn. In Einhorn, a volunteer at the Marshall County 4-H Fairgrounds got

       out of a vehicle to stop a runaway horse but was trampled by the horse.

       Einhorn, 996 N.E.2d at 825-26. In Heald, a party guest sued the party host for

       injuries the guest sustained when he was thrown from a horse the party host

       had provided to the guest. Heald, 480 S.W.2d at 110. Both cases stand for the

       proposition that a person who owns a horse that has known dangerous

       propensities must exercise reasonable care to prevent injuries reasonably

       anticipated from those dangerous propensities. Einhorn, 996 N.E.2d at 831;

       Heald, 480 S.W.2d at 111. Because Einhorn and Heald addressed these horse-

       caused injuries within the context of negligence, Burdick contends that her case

       against Romano for injuries caused by Sheza is also a negligence case, so the

       trial court abused its discretion by not instructed the jury accordingly.


[19]   The trial court rejected this reasoning even before this case went to trial. Even

       though the trial court denied Romano’s second motion for summary judgment,

       it nonetheless ruled that Einhorn did not apply, stating, “The court declines to

       find Einhorn . . . applicable here. While [Burdick] relies upon that case, it does

       not involve a sports participant or spectator but, instead, a bystander attempting to

       corral a loose horse.” Appellee’s App. Vol. 2 at 6 n.2 (emphasis added). At trial,

       the trial court reaffirmed its conclusion that this was a sports-activity case. Tr.

       Vol. 2 at 74; Tr. Vol. 4 at 141.


[20]   A person need not participate in a competitive sport to be engaged in a sporting

       activity. Gyuriak v. Millice, 775 N.E.2d 391, 395 (Ind. Ct. App. 2002),

       disapproved on other grounds by Pfenning v. Lineman, 947 N.E.2d 392, 400-01 (Ind.
       Court of Appeals of Indiana | Opinion 19A-CT-2739 | May 5, 2020             Page 9 of 18
       2011), trans. denied. Thus, activities our courts have categorized as sporting

       activities include non-competitive golf,3 a person riding a mountain bike while

       alone on a bike trail,4 and practicing karate kicks during a karate class.5


[21]   Burdick contends that she and Romano were not engaged in a sporting event.

       Burdick raises this argument as a separate, stand-alone issue, claiming that the

       trial court abused its instruction by reading the “sporting event pattern jury

       instruction.” Appellants’ Amended Br. at 39-44. However, the crux of Burdick’s

       argument about the sporting event instruction is that Burdick and Romano were

       not engaged in a sporting event under the terms of the equine activity statutes,

       see Indiana Code chapter 34-31-5, et. seq., and specifically under the statute that

       defines “equine activity,” Indiana Code section 34-6-2-41. Therefore, we will

       address Burdick’s argument within the context of those statutes.


[22]   Indiana Code section 34-6-2-41 defines “equine activity” as follows:


                  (a) “Equine activity,” for purposes of IC 34-31-5, includes the
                  following:


                  (1) Equine shows, fairs, competitions, performances, or parades
                  that involve equines and any of the equine disciplines, including
                  dressage, hunter and jumper horse shows, grand prix jumping,
                  three (3) day events, combined training, rodeos, driving, pulling,



       3
        See Pfenning v. Lineman, 947 N.E.2d 392, 406 (Ind. 2011) and Gyruiak v. Millice, 775 N.E.2d 391, 395 (Ind.
       Ct. App. 2002), disapproved on other grounds by Pfenning, 947 N.E.2d at 404), trans. denied.
       4
           See Hoosier Mountain Bike Ass’n, Inc. v. Kaler, 73 N.E.3d 712, 714-15 (Ind. Ct. App. 2017).
       5
           See Megenity v. Dunn, 68 N.E.3d 1080, 1082 (Ind. 2017).


       Court of Appeals of Indiana | Opinion 19A-CT-2739 | May 5, 2020                                   Page 10 of 18
               cutting, polo, steeplechasing, English and western performance
               riding, endurance trail riding and western games, and hunting.


               (2) Equine training or teaching activities.


               (3) Boarding equines.


               (4) Riding, driving, inspecting, or evaluating an equine, whether
               or not monetary consideration or anything of value is exchanged.


               (5) Rides, trips, hunts, or other equine activities of any type (even
               if informal or impromptu) that are sponsored by an equine
               activity sponsor.


               (6) Placing or replacing horseshoes on an equine.


               (b) The term does not include being a spectator at an equine
               activity.


       Id. (emphasis added). Burdick argues that because this statute does not use the

       words “sports” or “sports participants,” Burdick and Romano could not have

       been engaged in a sporting activity, so the trial court should have instructed the

       jury on negligence. Appellants’ Amended Br. at 43.


[23]   We agree with Romano that the statutory definition of equine activity does not

       preclude sporting activities. The activities listed by the statute as equine

       activities is not exhaustive, evinced by the words, “‘Equine activity,’ for

       purposes of IC 34-31-5, includes the following.” Ind. Code § 34-6-2-41

       (emphasis added). See Med. & Prof'l Collection Servs., Inc. v. Bush, 734 N.E.2d


       Court of Appeals of Indiana | Opinion 19A-CT-2739 | May 5, 2020            Page 11 of 18
       626, 629 n.4 (Ind. Ct. App. 2000) (“We note that ‘includes,’ rather than being a

       limiting term, implies a non-exhaustive list[.]”). Moreover, the illustrative list

       in the statute identifies several sports, including grand prix jumping, polo,

       western performance riding, and steeplechasing as constituting equine activities.

       Ind. Code § 34-6-2-41(a)(1).


[24]   Therefore, the trial court did not abuse its discretion in finding that Burdick and

       Romano were engaged in a sporting activity. Burdick and Romano were not

       riding their horses in a pasture or other country terrain but within an arena

       specifically and exclusively designed for horse training. Tr. Vol. 4 at 66. Both

       Burdick and Romano described their activities in the arena as tricks and

       training related to the sport of horse-back riding, where, for instance, Burdick

       testified that she was going through her training routine in the arena. Id. at 61.

       As part of the routine, Burdick was “loping” Chip as part of a cool-down after

       she completed her training routine with Chip. Id. When Burdick completed

       her training routine, she accepted Romano’s invitation to join her and Sheza to

       ride in a zig zag pattern through the poles erected in the arena. Id. at 61-62.

       Burdick and Romano also engaged in other behavior to demonstrate tricks and

       training techniques associated with the sport. Id. at 56-57, 61-63. For instance,

       Burdick characterized putting her hoodie over Chip’s eyes as a trick that was a

       training technique. Id. at 56. She also testified that without proper training, a

       horse would “spook” if its head was covered by an object. Id. Burdick stated

       that demonstrating to another person how the horse would respond to training

       is part of the sport. Id. at 57. Burdick also acknowledged that when Romano


       Court of Appeals of Indiana | Opinion 19A-CT-2739 | May 5, 2020           Page 12 of 18
       was going to demonstrate that Sheza could push a barrel with her nose, it was

       to show a technique that Romano had used to train Sheza. Id. Also, in

       explaining the “ground tie” that Romano used after she dismounted Sheza (in

       Burdick’s version of the events), Burdick and Romano testified that a ground tie

       is a trick or training technique where the rider dismounts the horse, drops the

       reins to the ground, and the horse stands as if the horse was tied to the ground.

       Tr. Vol. 2 at 163; Tr. Vol. 3 at 244; Tr. Vol. 4 at 58. Training a horse to stand still

       during a ground tie is important because if an emergency arises, it may be

       important for a horse to stay put. Tr. Vol. 2 at 163. Romano testified that

       ground training is “definitely part of the equine world.” Id. at 164. Finally,

       both Burdick and Romano agreed that Romano was in the process of retrieving

       a barrel to demonstrate a trick and training technique associated with the sport.

       Id. at 142-43, Tr. Vol. 3 at 244-45; Tr. Vol. 4 at 58. Thus, contrary to Burdick’s

       argument, this is not a simple “dog bite” case but instead is a sporting activity

       case. See Appellants’ Amended Br. at 12. Our courts have ruled that non-

       competitive golf, practicing karate kicks, and riding a mountain bike on a trial

       are sporting activities. Accordingly, we cannot state that the trial court abused

       its discretion in determining that Burdick’s injuries occurred during a sporting

       event. See Megenity v. Dunn, 68 N.E.3d 1080, 1082 (Ind. 2017); Pfenning, 947

       N.E.2d at 406; Hoosier Mountain Bike Ass’n, Inc. v. Kaler, 73 N.E.3d 712, 714-15

       (Ind. Ct. App. 2017); and Gyruiak, 775 N.E.2d at 395.


[25]   Because Burdick and Romano were engaged in a sporting activity, Burdick was

       required to show that Romano was reckless, not merely negligent. Megenity, 68

       Court of Appeals of Indiana | Opinion 19A-CT-2739 | May 5, 2020             Page 13 of 18
       N.E.3d at 1084-85; Pfenning, 947 N.E.2d at 404. Stated differently, a

       participant’s conduct in a sporting activity is unreasonable only if the injured

       party shows that the co-participant engaged in reckless conduct. Megenity, 68

       N.E.3d at 1084-85; Pfenning, 947 N.E.2d at 404. This burden of proof is

       supported by public policy.


               [S]trong public policy considerations favor the encouragement of
               participation in athletic activities and the discouragement of
               excessive litigation of claims by persons who suffer injuries from
               participants’ conduct. Sound policy reasons support affording
               enhanced protection against liability to co-participants in sports
               events. Athletic activity by its nature involves strenuous and
               often inexact and imprecise physical activity that may somewhat
               increase the normal risks attendant to the activities of ordinary
               life outside the sports arena, but this does not render
               unreasonable the ordinary conduct involved in such sporting
               activities.


       Id. at 403.


[26]   Because the undisputed evidence shows that Burdick and Romano were

       engaged in a sporting activity, the trial court did not abuse its discretion in

       refusing to instruct the jury on negligence for two reasons: First, the evidence

       did not support an instruction for negligence. See Kimbrough, 55 N.E.3d at 339.

       Second, an instruction on negligence could have confused and misled the jury

       about Burdick’s burden of proof. See Miller, 706 N.E.2d at 248. Acordingly, we

       affirm the trial court’s decision to refuse Burdick’s tendered instructions on

       negligence.



       Court of Appeals of Indiana | Opinion 19A-CT-2739 | May 5, 2020           Page 14 of 18
               II. Instruction on Inherent Risk of Equine Activities
[27]   Burdick also argues that the trial court abused its discretion by instructing the

       jury on the inherent risks of equine activity. The instruction stated:


               Inherent risks of equine activities include the following: the
               propensity of an equine to behave in ways that may result in
               injury, harm or death to persons on or around the equine. The
               unpredictability of an equine’s reaction to such things as sound,
               sudden movement, unfamiliar objects, people or other animals.
               The potential of a participant to act in a way that may contribute
               to injury to the participant or others, such as failing to maintain
               control over the animal or not acting within the participant’s
               ability.


       Tr. Vol. 4 at 200.


[28]   In contending that reading this instruction was an abuse of discretion, Burdick

       advances the arguments that we addressed in the previous section of this

       decision about Burdick’s claim that the trial court abused its discretion in

       refusing to instruct the jury on negligence. Accordingly, she has waived this

       claim for failure to make a cogent argument. Maggert v. Call, 817 N.E.2d 649,

       651 (Ind. Ct. App. 2004).


[29]   Waiver aside, the instruction is an accurate statement of the law as it comes

       from the statute that defines inherent risks from equine activities. See Indiana

       Code section 34-6-2-69. Although the instruction omitted language from the

       statue about inherent risks arising from hazards such as surface and subsurface

       conditions and collisions with other equines or objects, it is otherwise identical


       Court of Appeals of Indiana | Opinion 19A-CT-2739 | May 5, 2020          Page 15 of 18
       to the language in the statute. This omission was appropriate to make the

       instruction conform to the facts of the case.


[30]   The instruction also omitted the word “negligent” from the statute. This

       omission was also appropriate because leaving the word “negligent” in the

       instruction would have confused the jury about Burdick’s burden of proof, that

       is, to show that Romano acted reckless. See Miller, 706 N.E.2d at 248 (an

       instruction or language in an instruction should be rejected if it will mislead or

       confuse the jury).


[31]   Finally, the evidence supported giving the instruction. Burdick testified that, as

       an expert, she knew the risks associated with horse training and tricks before

       she walked into the arena. Tr. Vol. 4 at 61. She admitted that being kicked by a

       horse was a risk of the sport and testified that a horse getting “spooked” was a

       risk of the equine activities. Id. at 59. She also admitted that horseback riding

       was dangerous. Id. at 99. The evidence supported the instruction on the

       inherent risks of equine activity, and the trial court did not abuse its discretion

       in reading the instruction to the jury.


                                III. Instruction on Incurred Risk
[32]   Burdick also contends the trial court abused its discretion in instructing the jury

       on incurred risk because the evidence did not support the instruction. The

       instruction stated:


               [Romano] claims [Burdick] knew of a specific danger,
               understood the risk she faced, and voluntarily exposed herself to

       Court of Appeals of Indiana | Opinion 19A-CT-2739 | May 5, 2020           Page 16 of 18
               the danger. In other words, [Romano] claims [Burdick]
               voluntarily incurred the risk. To prove [Burdick] incurred the
               risk, [Romano] must prove by the greater weight of the evidence
               that [Burdick] knew and appreciated the specific risk, and
               [Burdick] voluntarily accepted the risk. If you decide that
               [Burdick] incurred the risk, then that conduct is fault that you
               should assess against [Burdick].


       Tr. Vol. 4 at 200.


[33]   Burdick claims the evidence did not support this instruction because there was

       no evidence that she was aware that Romano might stop Sheza, dismount her,

       leave her unattended, and walk away to retrieve a barrel to demonstrate a trick.

       In support, Burdick cites Colaw v. Nicholson for the proposition that “[i]ncurred

       risk contemplates acceptance of a specific risk of which the plaintiff has actual

       knowledge.” 450 N.E.2d 1023, 1029 (Ind. Ct. App. 1983). She also points us

       to Forrest v. Gilley and Hardin v. Christy for the same principle. Forrest, 570

       N.E.2d 934, 935 (Ind. Ct. App. 1991) (person injured after falling off horse),

       trans. denied; Hardin, 462 N.E.2d 256, 263 (Ind. Ct. App. 1984) (person injured

       by horse when exercising the horse).


[34]   Contrary to Burdick’s claim, the evidence supported the incurred risk

       instruction. Burdick is mistaken that the incurred risk at issue was Romano’s

       decision to dismount Sheza and leave Sheza untied and unattended. Instead,

       the risk at issue was Sheza’s tendency to kick other horses. Sometime before

       the incident, Burdick had asked Romano several times to show Burdick the

       trick where Sheza would push the barrel with her nose. Tr. Vol. 2 at 140-41.


       Court of Appeals of Indiana | Opinion 19A-CT-2739 | May 5, 2020            Page 17 of 18
       Burdick was aware of Sheza’s history of kicking other horses because Romano

       told Burdick several times that Sheza was a kicker. Tr. Vol. 3 at 239; Tr. Vol. 4

       at 61. Burdick also testified that before the incident she had observed Sheza act

       aggressively toward other horses and attempt to kick other horses. Tr. Vol. 3 at

       239. She also admitted that being kicked by a horse was a risk of the sport and

       conceded that as a horse expert she knew all the risks associated with horse-

       related sporting activities. Tr. Vol. 4 at 59, 61. Therefore, because the evidence

       supported the incurred risk instruction, the trial court did not abuse its

       discretion by reading the instruction to the jury.6


[35]   Affirmed.


       Bailey, J., and Mathias, J., concur.




       6
         Additionally, in muddled arguments related to the burden of proof, Burdick first appears to contend that
       when the trial court instructed the jury about Romano’s claim that Burdick was partly at fault for her injuries,
       the trial court misstated Romano’s burden of proof. This argument is unclear, unsupported by citation to
       authority, and Burdick does not develop the argument. Therefore, she has waived the issue for failure to
       make cogent argument. See Maggert v. Call, 817 N.E.2d 649, 651 (Ind. Ct. App. 2004). Second, Burdick
       complains that “the clear and convincing evidence burden of proof standard applicable to recklessness was
       never read to the jury – only the preponderance of evidence burden of proof standard applicable to negligence
       [] was read to the jury.” Appellants’ Amended Br. at 40-41. This argument is equally confusing, so it too is
       waived for lack of cogent argument. See Maggert, 817 N.E.2d at 651. Burdick also does not demonstrate
       how she was prejudiced by an instruction that advised the jury that Burdick was only required to prove her
       case by a preponderance of evidence instead of clear and convincing evidence.




       Court of Appeals of Indiana | Opinion 19A-CT-2739 | May 5, 2020                                   Page 18 of 18
