IALDA

Read the handout prepared by IALDA’s Lary Zucker (Board Member/Past President) and Alicia Caridi (Board Member) below.

David M. Bennett and Shauna M. Martin were successful in having their Motion for Summary Judgment granted and the case dismissed for their clients, Dr. Martin Luther King, Jr. Park and Family Entertainment Center and its operator, United Skates of America, Inc., in Chicago, Illinois.  The 53 year old plaintiff claimed for the first time at her deposition that she skated over a piece of candy which caused her to fall, severely injuring her back.  However, plaintiff admitted at her deposition the candy must have been invisible because she never saw it before or after she fell, she did not know how long the candy was on the rink floor and her family members admitted to never seeing the candy at their depositions.  The employees testified by their depositions, incident report, and employee statements that plaintiff told them a boy cut her off and caused her to fall.

The judge granted the Motion for Summary Judgment and ruled there was no evidence that the rink employees had any actual or constructive notice of any candy on the rink floor and the plaintiff’s case was barred by the immunity provisions of the Illinois Roller Skating Rink Safety Act since the roller rink complied with the provisions of the Act.

Jason J. Campbell, an IALDA member practicing with the firm of Anderson Murphy Hopkins in Little Rock, Arkansas, successfully defended a health club in a liability waiver case, Kotcherquina v. Fitness Premier Management LLC.  This is the first such written opinion inArkansas involving enforceability of a health club waiver.

For questions, contact Jason at 512-210-3608 or Campbell@amhfirm.com.

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IALDA is pleased to offer industry friends the 2011 State Survey on Pre-Loss Waivers and Releases.  If you would like a complimentary copy of this important reference, please contact an IALDA member.  You may search for the IALDA member nearest you at the “IALDA Members” tab.

In The Court of Appeals

Fifth District of Texas at Dallas
No. 05-10-00060-CV

APRIL BARRERA, INDIVIDUALLY AND AS NEXT FRIEND AND THE NATURAL MOTHER AND GUARDIAN OF

MINOR CHILD, ASHLEY BERGANCIANO, Appellant

V.

RICHARD WHITE, INDIVIDUALLY AND D/B/A

RICHARD WHITE TRAIN, A/K/A HAPPY TRAIN, Appellee

On Appeal from the 397th Judicial District Court

Grayson County, Texas

Trial Court Cause No. 07-1112-397

…………………………………………………….
MEMORANDUM OPINION

Before Justices Richter, Lang, and Fillmore

Opinion By Justice Lang

April Barrera, individually and as next friend and the natural mother and guardian of minor child, Ashley Berganciano, sued Richard White, individually and d/b/a Richard White Train, a/k/a Happy Train for damages arising from injuries twelve-year old Ashley suffered while riding White’s homemade, trackless, amusement ride train. The train, patterned after two trackless trains White had previously purchased and operated, was pulled by an all-terrain vehicle and consisted of several steel drums supported by steel tubing and attached to wheels. Following a jury trial, the trial court rendered a take-nothing judgment in White’s favor. In three issues on appeal, Barrera asserts the trial court erred in excluding certain evidence and limiting the testimony of her expert. We affirm the trial court’s judgment.

I. Procedural and Factual Background

 The injuries occurred when Ashley’s hand was caught under a wheel as she reached down to the ground to pick up a soda can she, her twin sister, and two friends had been  throwing back and forth from train car to train car. The skin of Ashley’s hand was “degloved” and required numerous surgeries to repair.  Asserting White’s train was dangerous, Barrera sued White for negligence and gross negligence. Barrera alleged the injuries were proximately caused by White’s negligence and gross negligence in thirty-four different respects. Barrera maintained it was reasonably foreseeable that a child would stick her hand in the area of the moving parts resulting in serious and permanent injuries. She further maintained that, despite “full knowledge that young children would be playing on and around dangerous pinch points, [White] took no action whatsoever to minimize the risk of such injuries.” The acts and omissions alleged by Barrera closely mirrored “criticisms” listed in the report of her expert witness Walter Reiss, an amusement ride inspector with approximately twenty years’ experience. In arriving at his “criticisms,” Reiss reviewed, among other items, pictures of the train taken during an inspection, the depositions of White and Barrera, Texas Administrative Code Title 28 concerning the safety inspection and insurance of amusement rides, Texas Occupations Code Chapter 2151 which regulates amusement rides, and the American Society for Testing and Materials (ASTM) F-24 standards covering design, manufacturing, maintenance, inspection, and operation of amusement rides. Based on his review of the various pictures and documents, Reiss was of the opinion that the injuries could have been prevented if the train’s wheels, which were within the reach of passengers, had been properly protected by guards.

After some discovery had been conducted, White filed a Robinson motion seeking to exclude Reiss as an expert. See E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549 (Tex. 1995). Challenging Reiss’s qualifications and contending that Reiss’s opinion was unreliable and failed to address how the acts and omissions contributed to Ashley’s injuries, White asked the trial court to exercise its “gatekeeper” function pursuant to Texas Rule of Evidence 702. See Tex. R. Evid. 702; Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-93 (1993); Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718 (Tex. 1998); Robinson, 923 S.W.2d at 549.

The trial court held a pre-trial hearing and, following Reiss’s testimony concerning his qualifications and opinions, ruled that Reiss could testify and offer opinion testimony with respect to “what a reasonably prudent amusement ride operator should or should not do, and the codes as they relate to that” but not with respect to “violations of certain standards that are not causally related to the accident.” Arguing Reiss lacked a background in design, White urged the court to consider also limiting Reiss’s testimony in that regard. The trial court agreed and noted “this was not a products [design defect] case.” See Tex. Civ. Prac. & Rem. Code Ann. � 82.005(a) (West 2011) (design defect claim in products liability action requires proof that safer alternative design existed at time product left manufacturer’s control and defect was producing cause of personal injury for which recovery is sought). At a subsequent pre-trial hearing, the trial court reiterated its ruling that “design issues . . . are out” and noted specifically that Barrera had represented she was not making any strict liability claims. See Gen. Motors Corp. v. Saenz, 873 S.W.2d 353, 357 (Tex. 1993) (negligence requires showing of proximate cause; strict liability requires showing of producing cause). The trial court stated, “operation issues . . . how [White] was operating the train, that’s what we’re going to focus on.” The trial court visited the “design issues” again at trial.  Barrera sought to question White about a code “provision that requires that moving parts on these types of amusement rides be guarded.”  Barrera asserted she could ask White about his familiarity with the provision without running afoul of the trial court’s earlier rulings, but the court disagreed. During trial, Barrera called White as a witness. During direct examination by Barrera, White testified he warned passengers before the ride began to keep their feet and hands inside the train. He further testified that occasionally a child would “touch the top of the tire as it was rotating,” and he would stop them from doing that although he did not consider “it a bit [of a] safety risk until Ashley got hurt.” In his view, the “only part” on the train that posed a risk for the passengers were the tires, and he did “everything” he could to keep children away from them. Based on that testimony and arguing White had “opened the door,” Barrera again sought to question White about the provision concerning guards or, at a minimum, read the provision to the jury. Relying on the prior rulings concerning “design issues” and without hearing any response from White, the trial court refused Barrera’s request.

Prior to resting, Barrera made an offer of proof in question and answer form as to the evidence she would have presented had the trial court allowed her. Through Reiss, Barrera established that the ASTM standards for design of amusement rides require a manufacturer to (a) provide machine guards to prevent contact with moving machinery or parts; (b) perform a ride analysis that includes patron restraint and containment analysis; and (c) design restraints to minimize opportunity for pinching or unintentional trapping of fingers, hands, feet, and other parts of a passenger’s body. See Am. Soc’y Testing Materials F 2291-4, � & #65533; 5 (ride analysis), 6.3.8 (restraints), 13.5 (machine guards). She also established that provisions in the Texas Administrative Code prohibit the operation of a ride that does not meet inspection standards and require an owner or operator of a mobile amusement ride to perform and record daily inspections of the ride and safety restraints. See 28 Tex. Admin. Code �5.9004(c)(6), (e). During this offer of proof, Barrera also elicited opinion testimony from Reiss that White had violated the ASTM standards and that the train would not have passed inspection because “too many serious safety deficiencies [existed] that would most certainly cause injury to the passenger or operator.” In “closing,” Barrera argued she was presenting her case “under the theory of negligent design and not the traditional 402(a) product liability” and that it was her “understanding the Court did not allow [her] to move forward with the negligent design theory based on qualifications” and lack of causation.

II. Discussion
Barrera’s three issues challenge the trial court’s exclusion of the evidence and testimony of the applicable industry standards and codes. Barrera asserts the excluded evidence and testimony was relevant to the standard of care White owed his passengers in the operation of the train and his breach of that duty. Barrera also asserts that, once White “opened the door,” the excluded evidence and testimony should have been allowed.

A. Standard of Review

A trial court’s decision to admit or exclude evidence is reviewed for abuse of discretion. See State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 647 (Tex. 2001); Gammill, 972 S.W.2d at 718-19. An abuse of discretion occurs when the decision is arbitrary, unreasonable, or without reference to any guiding rules or principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000) (per curiam).

B. Applicable Law

Under Texas Rules of Evidence 401 and 402, evidence that is relevant, that is, that has “any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence,” is generally admissible. See Tex. R. Evid. 401, 402. When the testimony of an expert is sought to establish a claim, the trial court has the gatekeeper function of ensuring that the expert’s testimony is based on a reliable foundation and is relevant to the issues in the case. Gammill, 972 S.W.2d at 727; Robinson, 923 S.W.2d at 556. The relevancy requirement, which incorporates traditional relevancy analysis under rules 401 and 402, is met if the expert’s testimony is “sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.” Robinson, 923 S.W.2d at 556 (quoting United States v. Downing, 753 F.2d 1224, 1242 (3rd Cir. 1985)). If a party objects to evidence or expert testimony, the proponent of the evidence or testimony bears the burden of demonstrating admissibility. Id. at 557. If the objecting party subsequently introduces evidence similar in character to the evidence he sought to exclude, the objected-to evidence may be admitted. See Moore v. Bank Midwest, N.A., 39 S.W.3d 395, 402 (Tex. App.-Houston [1st Dist.] 2001, pet. denied). To preserve on appeal a complaint that the court erred in excluding evidence or testimony, the proponent must raise the argument at trial. See, e.g., Taylor v. Am. Fabritech, Inc., 132 S.W.3d 613, 621 & n.21 (Tex. App.-Houston [14th Dist.] 2004, pet. denied); Tex. Dep’t of Transp. v. Olson, 980 S.W.2d 890, 898 (Tex. App.-Fort Worth 1998, no pet.).

C. Application of Law to Facts

Barrera’s first and second issues complain of the trial court’s pre-trial ruling excluding evidence and Reiss’s testimony concerning the applicable industry standards and codes. Barrera asserts the court’s ruling was erroneous because the standards and codes were relevant to White’s operation of the train, and “evidence of the standard of care applicable in this case, and [White’s] violation of those standards and codes was admissible as evidence of [White’s] negligence.” However, Barrera did not raise this argument at trial. Barrera’s argument to the trial court, as reflected in the offer of proof, was that the evidence and testimony was relevant to her negligent design claim. Specifically, she argued as follows: We were presenting our case under the theory of negligent design and not the traditional 402(a) product liability. It’s my understanding the Court did not allow us to move forward with the negligent design theory based on qualifications and other reasons you have just mentioned. The “other reasons” the court “ha[d] just mentioned” concerned “the inspection issues.” The court stated that “because there was no evidence presented to me when I made pretrial rulings, or previously, that there was a causal link between some of these so-called inspections and the injury in this case, the Court excluded that information.” Nothing in Barrera’s offer of proof, or in the court’s rulings, reflects Barrera argued to the court that the excluded evidence was relevant to White’s operation of the train. Because Barrera’s complaint on appeal does not comport with her complaint at trial, we conclude she failed to preserve error. See Carousel’s Creamery, L.L.C. v. Marble Slab Creamery, Inc., 134 S.W.3d 385, 395 (Tex. App.-Houston [1st Dist.] 2004, pet. dism’d) (“A party may not assert on appeal a basis for admission of evidence not presented to the trial court.”) (citation omitted). We decide her first two issues against her.

In her third issue, Barrera asserts the court erred in not allowing evidence and testimony of the applicable industry standards and code after White “opened the door.” The testimony Barrera asserts “opened the door” was White’s testimony that he did “everything” he could to keep children away from the tires. Barrera asserts the excluded evidence should have been allowed to rebut White’s testimony. In support of her contention, Barrera cites to Feldman v. State, 71 S.W.3d 738 (Tex. Crim. App. 2002), Southwestern Electric Power Co. v. Burlington Northern Railroad Co., 966 S.W.2d 467 (Tex. 1998), Moore v. Bank Midwest, N.A., 39 S.W.3d 395 (Tex. App.-Houston [1st Dist.] 2001, pet. denied), Stinson v. Arkla Energy Resources, 823 S.W.2d 770 (Tex. App.-Texarkana 1992, no writ), and Trans-State Pavers, Inc. v. Haynes, 808 S.W.2d 727 (Tex. App.-Beaumont 1991, writ denied). In those cases, the appellants either sought to offer evidence to rebut evidence presented by appellees or complained of evidence admitted to rebut evidence appellants themselves or a third party had presented. Feldman, 71 S.W.3d at 755-56 (admission); Sw. Elec. Power, 966 S.W.2d at 472-73(same); Moore, 39 S.W.3d at 401-02 (same); Stinson, 823 S.W.2d at 772 (exclusion); Haynes, 808 S.W.2d at 729-32 (same). Those cases, however, have no application to the facts before us. Barrera called White as her witness, and the testimony which she claims “opened the door” was elicited by Barrera during her direct examination of White.

Because the authorities Barrera cites to support her argument are inapplicable, we decide Barrera’s third issue against her. See Tex. R. App. P. 38.1(h).

III. Conclusion
Having decided Barrera’s three issues against her, we affirm the trial court’s judgment. 

DOUGLAS S. LANG JUSTICE

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Defense Verdict — Plaintiff takes nothing in wrongful termination case against roofing contractor. May 2011.

 Plaintiff filed suit in Louisiana state court, contending that his employer fired him in retaliation for making a worker’s compensation claim.  GJTBS took the matter to trial.  After trial on the merits, judgment was entered in favor of our client, a roofing contractor, because plaintiff failed to carry his burden of proof.  The matter was tried by GJTBS Director and IALDA president Joe Hassinger.

Argued January 21, 2010

JUSTICE HECHT delivered the opinion of the Court.

The Texas Equine Activity Limitation of Liability Act*fn1 limits liability for inherent risks of equine activity. This case raises two issues regarding the proper construction of the Act. One is whether risks are inherent in equine activity only if they relate to animal behavior or are otherwise unavoidable. As we read the Act, an inherent risk is one that, in its general character, is associated with activities involving equine animals. The other issue is whether the Act limits liability for failing to fully assess a person’s ability to participate in equine activity if that failure did not cause injury. We hold it does. We reverse the court of appeals’ judgment*fn2 and render judgment for petitioner.

I

Janice Lee decided to go horseback riding with her friend, Terri Loftin, at Loftin’s East Texas home. Lee had raised horses for years but had not ridden much and wanted to start. Loftin owned and trained horses. Loftin paired Lee with a twelve-year-old gelding named “Smash” that Loftin had bought for her daughter to ride in competitive barrel racing. To Lee, the horse seemed calm, gentle, and not at all dangerous.

Loftin chose a trail across her neighbor’s property that she had ridden the week before, and she and Lee set out. About an hour later, they came to a wooded, boggy area. Loftin knew the low-lying area could be muddy, and Lee, who was in the lead, saw that it was. Neither thought to avoid it. Lee had also noticed vines hanging from the trees and knew that a horse might jump if something touches its flank. That is what happened. A vine touched the flank of Lee’s horse, and already spooked by the mud, the horse bolted, as horses will. Lee fell, fracturing a vertebra.

Lee and her husband sued Loftin. The trial court granted summary judgment for Loftin, holding that the Act barred Lee’s claims. The court of appeals reversed and remanded, concluding that material fact issues subsisted. We granted Loftin’s petition for review.*fn3

II

The Act is a comprehensive limitation of liability for equine activity of all kinds.*fn4 It covers “riding, handling, training, driving, assisting in the medical treatment of, being a passenger on, or assisting a participant or sponsor with”*fn5 “a horse, pony, mule, donkey, or hinny.”*fn6 It applies to all participants.*fn7 Section 87.003 of the Act states in pertinent part:

Except as provided by Section 87.004, any person . . . is not liable for . . . damages [for personal injury that] results from the dangers or conditions that are an inherent risk of an equine activity, including:

(1) the propensity of an equine animal to behave in ways that may resu lt in personal injury or death to a person on or around it;

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

(3) 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 animal or not acting within the participant’s ability.*fn8 Section 87.004, entitled “Exceptions to Limitation on Liability”, states in part:

A person . . . is liable for . . . damage . . . caused by a participant in an equine activity if:

(1) the injury or death was caused by faulty equipment or tack used in the equine activity, the person provided the equipment or tack, and the person knew or should have known that the equipm ent or tack was faulty;

(2) the person provided the equine animal and the person did not make a reasonable and prudent effort to determine the ability of the participant to engage safely in the equine activity and determine the ability of the participant to safely manage the equine animal, taking into account the participant’s representations of ability;

(3) the injury or death was caused by a dangerous latent condition of land 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;

(4) the person committed an act or omission with wilful or wanton disregard for the safety of the participant and that act or omission caused the injury; or

(5) the person intentionally caused the injury or death.*fn9 The sta tutory text reflects an expansive view of “inherent risk”. The five examples in section 87.003 cover a broad range – animal propensities and unpredictability, land conditions, collisions, and other participants’ negligence – yet are expressly non-exclusive. And by excepting five other kinds of risks, section 87.004 necessarily implies that they might otherwise be deemed inherent in equine activity. Three obviously are – faulty equipment, a faulty assessment of a participant’s abilities, and latent land conditions. But the other two – wanton disregard for safety and intentional conduct – might seem extraneous rather than inherent risks. Read together, sections 87.003 and 87.004 reflect the Act’s intention to address the entire scope of equine activity.

Lee was injured while engaged in such activity – “riding . . . an equine animal belonging to another”.*fn10 But she contends that her accident was caused by Loftin’s negligence in choosing a trail to ride, one with mud and vines. Bad trails and “sponsor negligence”, she argues, are avoidable and thus not inherent risks of equine activity. Lee also contends that for failing to make a reasonable and prudent effort to determine her ability to ride, Loftin can be liable under section 87.004(2).*fn11

Loftin contends that the Act bars Lee’s claims as a matter of law.

The justices of the court of appeals were of three minds. The chief justice determined after a lengthy analysis that the vines and the horse’s propensity to react to them were risks but were not inherent in trail riding under section 87.003 if they could have been avoided, as by choosing a different trail.*fn12 He also concluded that Loftin may not have fully determined Lee’s ability to go trail riding and was therefore excepted from the limitation on liability by section 87.004(2).*fn13 One j ustice agreed on this latter point but would have held on the other one that Lee’s injury was caused by inherent risks of equine activity.*fn14 The other justice disagreed with the chief justice on both points.*fn15 Thus, a majority of the court agreed to reverse Loftin’s summary judgment because material fact issues remained under section 87.004(2) but not section 87.003.

We discuss first the arguments under section 87.003, then those under section 87.004(2).

III

Lee argues that by “inherent risk of equine activity”, the Act refers only to risks due to innate animal behavior and not those involved in the activity. She acknowledges that a horse may become skittish in mud or when its flank is touched, and that such behavior is an inherent risk of horseback riding. But she insists that her injury resulted, not from her horse’s propensities, but from having been put in a place where those propensities could cause harm. Loftin was to blame, Lee argues, not the horse. A negligent sponsor is not an inherent risk of horseback riding. Nor are mud and vines inherent risks of trail riding; there are trails free of such conditions. Thus, she urges, the Act does not apply. She relies in part on Steeg v. Baskin Family Camps, Inc., in which the court of appeals held that “[t]he Act denies immunity from liability for factors essentially within the sponsors’ control”.*fn16 In effect, Lee reads “equine activity” to mean only the activity of equine animals, not activity involving equine animals. The first two examples of inherent risk listed in section 87.003 are animal propensities and behavior.*fn17 But the remainder of the text contradicts Lee’s position. Two other examples of inherent risk have nothing to do with animal behavior: land conditions and negligent participants. Lee’s complaint against Loftin fit s squarely under section 87.003(5): “the potential of a participant to act in a negligent manner that may contribute to injury to the participant or another”. This provision alone refutes the argument that sponsor negligence is not an inherent risk of equine activity. We disapprove the contrary statement in Steeg.

Consistent with section 87.003, section 87.004’s exceptions to immunity imply that the risks covered by the Act are those inherent in activities involving equine animals: knowingly supplying faulty equipment, failing to determine a participant’s ability, failing to warn of latent land conditions, wilfully or wantonly disregarding safety, and intentionally causing injury.*fn18 The structure of the Act shows that but for section 87.004, these risks would also be considered inherent in equine activity.

The Act simply cannot be fairly read to limit inherent risks to those which are unavoidably associated with equine behavior. Con strued so narrowly, the Act would accomplish nothing. The common law does not impose liability on a person for injury caused by a domestic animal, like those covered by the Act, unless the animal was abnormally dangerous and the person had reason to know it, or the person was negligent in handling the animal.*fn19 It would have been pointless for the Legislature to limit liability when none existed. We must presume that the Legislature intended more.*fn20

Nor must risks associated with equine activity be inevitable to be inherent. Lee and Loftin could have avoided boggy, wooded trails; they could have gone riding in West Texas. Perhaps Loftin could have chosen a nearby trail free of the conditions that caused Lee’s fall. Even so, the risks of such choices are inherent in riding any trail. And the risk cannot be confined as narrowly as Lee attempts in her argument, to mud and vines. The risk inherent in trail riding is that a horse will be spooked by natural conditions, if not mud and vines, then birds or shadows.

Not every injury that occurs during equine activity is the result of inherent risk. An unrelated risk, one that occurs during the activity simply by coincidence, is not inherent in the activity. For example, had Loftin accidentally driven a vehicle into Lee while she was waiting by the stables to embark on the trail ride, Loftin’s liability would not be limited by section 87.003. The accident would have been wholly unrelated to any equine activity. On the other hand, had Lee been struck by a horse trailer while unloading the horse she was to ride on the trail, her injury would have resulted from a risk inherent in equine activity because the two were directly related.

Whether risks are inherent in equine activity may sometimes raise fact issues. The Act suggests, however, that determining what risks are inherent should be based on a common-sense understanding of the nature of equine activities. In this case, all the causes of Lee’s injury – the propensity of her horse to react to trail conditions, the unpredictability of that reaction, the conditions themselves, and Loftin’s choice of trails – fall within the risks listed in section 87.003. Unless Lee’s injury was also caused by Loftin’s failure to determine her ability under section 87.004(2), Loftin’s liability is limited as a matter of law.

IV

Section 87.004(2) denies the immunity afforded by section 87.003 to a person who provides an equine animal without making “a reasonable and prudent effort to determine the ability of the participant to engage safely in the equine activity and determine the ability of the participant to safely manage the equine animal, taking into account the participant’s representations of ability”.*fn21 Lee argues, and the court of appeals held, that fact issues remain whether Loftin may be liable under this pro vision.*fn22

Section 87.004(2) does not expressly require the failure to have resulted in the injury. It can be read to say that a person who fails to make the prescribed determination of a participant’s ability is liable for whatever injury befalls, even one a thorough investigation could not have avoided. So construed, section 87.004(2) would impose strict liability for an inadequate determination of a participant’s ability. But this is not a reasonable construction of the statute. For one thing, the express purpose of the Act is to limit liability, not create strict liability. For another, section 87.004 contains exceptions to section 87.003’s limitation on existing liability. Each of the other four provisions of section 87.004 requires the specified misconduct to have caused the injury, thus leaving liability as if section 87.003 did not exist. A provision creating strict liability for the first time cannot fairly be said to be an ex ception to a limitation on existing liability. Finally, the requirement of causation is strongly implied. Reading from the beginning of the sentence, section 87.004 provides: “A person . . . is liable for . . . damage . . . caused by a participant in an equine activity if . . . the person provided the equine animal and . . . did not . . . determine the ability of the participant . . . .”*fn23 The provision connects the damage caused with the failure to determine ability; it does not suggest that liability would result without the connection. Accordingly, we hold that section 87.004(2) applies only when the failure to make the required determination is itself the cause of the damage.

Lee argues, and a majority of the court of appeals held, that Loftin should have done more to determine Lee’s ability to ride trail, pointing out that Loftin asked her no questions. Loftin counters that she already knew all there was to know about Lee’s abili ty without questioning further – that though Lee had raised horses for years, she rode infrequently. Also, as they began their ride, Loftin could see that Lee had no trouble mounting her horse. Under these circumstances, she contends, she satisfied the “reasonable and prudent effort” standard of section 87.004(2). She and amici curiae*fn24 argue that the Act does not contemplate that a person must submit to interrogation before being provided a horse to ride.

We agree that section 87.004(2) does not require a formal, searching inquiry. Lee does not contend that any further inquiry by Loftin into her ability to ride could have prevented the accident. Therefore, section 87.004(2) does not apply. Lee asserts that Loftin, knowing what she knew, should have chosen another trail. But the statute limits liability for such a claim.

As a matter of law, Loftin’s liability was limited by the Act, and the trial court properly granted summary jud gment for Loftin. Therefore, the judgment of the court of appeals is reversed and judgment rendered that the Lees take nothing.

Opinion Footnotes

*fn1 TEX. CIV. PRAC. & REM . CODE §§ 87.001-.005. All references to the Act are to these provisions. All but five states – California, Maryland, Nevada, New York, and Pennsylvania – limit liability for equine activities by statute.

*fn2 277 S.W.3d 519 (Tex. App.-Tyler 2009).

*fn3 53 Tex. Sup. Ct. J. 15 (Oct. 23, 2009).

*fn4 TEX. CIV. PRAC. & REM . CODE § 87.001(3) (“‘Equine activity’ means: (A) an equine animal show, fair, competition, performance, or parade that involves any breed of equine animal and any equine discipline, including dressage, hunter and jumper horse shows, grand prix jumping, three-day events, combined training, driving, pulling, cutting, polo, st eeplechasing, English and W estern performance riding, endurance trail riding and Western games, and hunting; (B) equine training or teaching activities; (C) boarding equine animals; (D) riding, inspecting, or evaluating an equine animal belonging to another, without regard to whether the owner receives monetary consideration or other thing of value for the use of the equine animal or permits a prospective purchaser of the equine animal to ride, inspect, or evaluate the equine animal; (E) informal equine activity, including a ride, trip, or hunt that is sponsored by an equine activity sponsor; (F) placing or replacing horseshoes on an equine animal; or (G) without regard to whether the participants are compensated, rodeos and single event competitions, including team roping, calf roping, and single steer roping.”). In 2001, the Legislature amended sections 87.001-.005 to add provisions for livestock shows. Act of May 22, 2001, 77th Leg., R.S., ch. 1108, 2003 Tex. Gen. Laws 2 457. For simplicity, we have omitted references to these livestock provisions in this opinion.

*fn5 TEX.CIV. PRAC. & REM . CODE § 87.001(1) (“‘Engages in an equine activity’ means riding, handling, training, driving, assisting in the medical treatment of, being a passenger on, or assisting a participant or sponsor with an equine animal. The term includes management of a show involving equine animals. The term does not include being a spectator at an equine activity unless the spectator is in an unauthorized area and in immediate proximity to the equine activity.”);

*fn6 Id. § 87.001(2) (“‘Equine animal’ means a horse, pony, mule, donkey, or hinny.”).

*fn7 Id. § 87.001(9) (“‘Participant’ means: (A) with respect to an equine activity, a person who engages in the activity, without regard to whether the person is an amateur or professional or whether the person pays for the activity or participates in the activity for free; and (B) with respect to a livestock show, a person who registers for and is allowed by a livestock show sponsor to compete in a livestock show by showing an animal on a competitive basis, or a person who assists that person.”).

*fn8 Id. § 87.003 (livestock provisions omitted).

*fn9 Id. § 87.004 (livestock provisions omitted).

*fn10 TEX. CIV. PRAC. & REM . CODE § 87.001(3)(D).

*fn11 In the trial court and court of appeals, Lee argued that her injury was caused by latent, dangerous, unmarked conditions of land for which liability is permitted by section 87.004(3). She does not make that argument in this Court, perhaps because it is clear that the mud and vines were not latent. Indeed, Lee saw them herself before the injury. Here, Lee also arg ues that the Act violates the open courts and due course of law guarantees of article I, section 13 of the Texas Constitution, and that the Act is unconstitutionally vague. But Lee did not raise these issues in the trial court, and therefore she cannot argue them here. See, e.g., Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 222 (Tex. 2002) (requiring an appellant to raise an open courts challenge at the trial court); Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993) (“As a rule, a claim, including a constitutional claim, must have been asserted in the trial court in order to be raised on appeal.”).

*fn12 277 S.W.3d 519, 528-531 (Tex. App.–Tyler 2009) (Worthen, C.J.). The chief justice expressly did not consider whether the bog was a risk. Id. at 528 n.6 (Worthen, C.J.).

*fn13 Id. at 531-532.

*fn14 Id. at 533-535 (Hoyle, J., concurring).

*fn15 Id. 535-540 (Griffith, J., dissenting).

*fn16 124 S.W.3d 633, 637 (Tex. App.–Austin 2003, pet. dism’d).

*fn17 TEX. CIV. PRAC. & REM . CODE § 87.003(1)-(2).

*fn18 Id. § 87.004.

*fn19 Marshall v. Ranne, 511 S.W.2d 255, 257-259 (Tex. 1974) (citing RESTATEM EN T O F TORTS §§ 507, 509 (1938)).

*fn20 See Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 485 (Tex. 1998) (“[W ]e do not lightly presume that the Legislature may have done a useless act.” (citing Hunter v. Fort Worth Capital Corp., 620 S.W.2d 547, 551 (Tex. 1981))).

*fn21 TEX. CIV. PRAC. & REM . CODE§ 87.004(2).

*fn22 277 S.W.3d 519, 531-532 (Tex. App.–Tyler 2009).

*fn23 TEX. CIV. PRAC. & REM . CODE§ 87.004 (emphasis added).

*fn24 Amicus briefs supporting Loftin have been filed by the Texas Farm Bureau and the Texas Quarter Horse Association.http://www.law.com/jsp/tx/PubArticleTX.jsp?id=1202492703678

Article from Texas Lawyer as submitted by Henry Wehrmann, IALDA member.

Notice from CPSC related to Walking Balls:  http://www.cpsc.gov/cpscpub/prerel/prhtml11/11185.html.  According to the Notice, the CPSC has informed state amusement ride officials of the risks associated with this product and encourages state officials not to permit this ride in their states.

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