                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-17-00346-CV

ROBERT JAMES, INDIVIDUALLY AND
AS NEXT FRIEND OF BRADEY JAMES,
                                                            Appellant
v.

JUSTIN YOUNG, PAUL YOUNG, YOUNG
LIVESTOCK FARMS, LP, AND YOUNG
LIVESTOCK RANCH, LLC,
                                                            Appellees


                           From the 82nd District Court
                               Falls County, Texas
                             Trial Court No. CV39471


                   CONCURRING AND DISSENTING
                            OPINION


       This is the type suit for which Chapter 87 of the Texas Civil Practice and Remedies

Code was enacted. This Chapter is entitled “Liability Arising from Farm Animal

Activities or Livestock Shows.” Under most circumstances, it will operate as a statutory

defense to a negligence claim thus preventing the person who participates in such

activities from recovering for injuries incurred while engaged in the activity. But it does
not provide immunity from suit or even an absolute defense to all potential liability for

injuries incurred while engaged in such activities. There are exceptions to the application

of the statutory defense.

       I concur in the Court’s judgment affirming the trial court’s judgment granting the

traditional motions for summary judgment which determined that the Youngs had no

liability for Bradey’s injuries unless Robert ultimately proves an exception to the

statutory defense. The only exception raised and in issue is Section 87.004(2) of the Texas

Civil Practice and Remedies Code. It excepts a person from the protection of the Act if

“the person provided the farm animal…[and] did not make a reasonable and prudent

effort to determine the ability of the participant to engage safely in the farm animal

activity…and determine the ability of the participant to safely manage the farm

animal…taking into account the participant’s representations of ability….” TEX. CIV.

PRAC. & REM. CODE ANN. § 87.004(2) (West 2017). I believe this exception has been

adequately raised by Robert in response to Justin’s no-evidence motion for summary

judgment. Specifically, Robert, on behalf of Bradey, the participant, raised the fact issue

of whether Justin failed to make the required inquiry.

       There is not much factual discussion in the Court’s opinion. I will also note that

in their briefs, the parties fail to consistently make the appropriate distinctions about who

is liable for failing to make the relevant inquiry. First, potential liability is on the person




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who “provided” the horse; not necessarily the owner of the horse.1 There seems to be no

dispute that it was Justin who provided the horse to Bradey. However, there is a legal

question of whether “consent” of a parent potentially makes the parent responsible as

having provided the horse. In the alternative, consent of a parent could be evaluated as

part of the inquiry to be made by the person who provided the horse. Regardless of

which way the legal question is analyzed, there is a question about how parental consent

would be instructed and liability determined in a comparative negligence jury charge.

        Second, liability is placed only on the person (or persons) who failed to make the

proper inquiry. The statute does not specifically define the scope of information available

to the provider of the horse for the inquiry. Most assuredly, however, information or

knowledge which was not communicated to the defendant, cannot be imputed to the

defendant. In this case, the observations or knowledge of Shanda Young and Bradey’s

parents, cannot be imputed to Justin.

        I now turn to the analysis of the statute and the no evidence motion for summary

judgment filed by Justin.           When the legislature creates a statutory exception to a

defendant’s statutory defense to liability using phrases like “a reasonable and prudent

effort,” “to engage safely,” and “to safely manage,” it has made a summary judgment

very difficult to obtain. This is especially true when the burden on the plaintiff, in this



1
  It is also irrelevant who owned the property where the activity occurred as it is not a premises defect that
is alleged. See TEX. CIV. PRAC. & REM. CODE ANN. § 75.002 (b) (West 2017) (sometimes referred to as the
Recreational Use Statute).

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case Robert, only requires that he present “some” evidence that the defendant, in this case

Justin, failed to make that inherently subjective type of inquiry. And that burden and our

standard of review requires that the evidence be placed in the proper context: could

reasonable and fair minded persons differ in their conclusion that Justin did not make

the required inquiry before he provided a horse to a six-year-old boy to ride?

       I have no doubt that the evidence presented by Robert in response to the no-

evidence motion for summary judgment would allow Robert to argue, and thus possibly

convince reasonable jurors, that Justin failed to make an adequate inquiry. Specifically,

in Robert’s brief, he argues that the evidence supports the following inferences:

       1. Justin Young was the most familiar with the horse and its temperament.

       2. Justin Young did not ask Bradey James’ parents about his skill or
          experience as a rider.

       3. Justin Young had only seen Bradey James led by a halter.

       4. Bradey James’ parents both relied on Justin Young’s confirmation that
          “They are going to be fine.”

       5. Bradey James’ parents further relied on Justin Young’s knowledge and
          experience with his horses and their temperament when they gave
          consent.

       6. Justin Young knew that age, size, and experience were important factors
          in a rider’s ability to ride safely.

       7. Justin Young specifically knew that it would be dangerous for six-year-
          old Bradey James to ride without someone leading him with a halter.

       8. Justin Young nonetheless allowed Bradey James to ride without
          someone leading him by a halter.
James v. Young                                                                       Page 4
       9. Justin Young instructed the boys on where and how far to ride (350
          yards to the diesel tank).

       10. Justin Young physically separated the four horses when he allowed
           Bradey James and Daniel Prado to ride two horses to the diesel tank and
           he tied the other two to the pen, later admitting “I really shouldn’t have
           separated those horses.”

       11. Justin Young knew that it would be the horses’ natural tendency to run
           back to the other horses.

       12. The boys’ horses ultimately did run back to the others, causing Bradey
           James to fall.

       While I may not agree with all the inferences Robert argues can be drawn from the

evidence, based upon our standard of review, I would have to hold that there is “some

evidence,” in essence legally sufficient evidence, which would support a finding made

by a jury that Justin did not make a “reasonable and prudent effort to determine the

ability of the participant to engage safely in the farm animal activity…and determine the

ability of the participant to safely manage the farm animal…taking into account the

participant’s representations of ability.”

       Based on the evidence provided by Robert, I would hold that Robert raised a fact

issue on the sufficiency of Justin’s effort to make the inquiry required by the statute to

avoid liability. On the other hand, I find no evidence upon which to find that Paul Young

had such a duty, much less that he breached it. Thus, I would hold that, as to Justin’s

liability, Robert raised a fact issue regarding the application of the exception. That is all

that is required to avoid having the no-evidence motion for summary judgment granted
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and then affirmed on appeal in the procedural posture of this proceeding. Accordingly,

I would reverse and remand the trial court’s judgment solely on the issue of whether

Justin’s protection under the statutory defense was lost by his failure to make an adequate

inquiry as defined by the statutory exception.

       For the foregoing reasons, I concur in part of the Court’s judgment but would

reverse and remand in part as to the potential for Justin Young’s liability, as stated above,

and to the extent the Court does not, I respectfully dissent.




                                          TOM GRAY
                                          Chief Justice

Concurring and dissenting opinion issued and filed April 4, 2018




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