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Pezzani v. United States

United States District Court, E.D. Missouri, Eastern Division

September 27, 2019

JOAN R. PEZZANI, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION

          SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court following a bench trial conducted December 19, 2018 through December 21, 2018. Plaintiff Joan R. Pezzani filed this action against Defendant United States of America pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671, et seq. After consideration of the pleadings, the testimony, and the exhibits submitted by the parties, the Court hereby makes and enters the following findings of fact and conclusions of law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure

         I. Findings of Fact

         A. Background

         This case arises from an incident on July 24, 2015, in which Plaintiff Joan Pezzani was injured while participating in a horseback riding trip at the United States Air Force Academy Equestrian Center (the “Equestrian Center”) in Colorado Springs, Colorado with several members of her family. While attempting to mount her horse, Plaintiff placed her left foot into the stirrup of her horse, tried to swing her right leg over, and was unable to do so; her right leg came down hard on the ground, and her leg was injured. Plaintiff claims that the Equestrian Center employees were negligent in failing to adequately assess her ability to safely mount the horse, in refusing Plaintiff’s requests to lower the stirrups, in not adequately instructing her on safely mounting the horse, and in not taking her to a mounting platform that would have allowed her to step onto the saddle instead of boosting herself up. Defendant’s position is that the risks of mounting a horse are inherent risks of equine activity and thus, Defendant is immune from liability under Colorado Revised Statue § 13-21-119. In the alternative, Defendant argues that Plaintiff has not established Defendant was negligent under common-law principles. Defendant also argues that even if the Court finds Defendant was negligent, Plaintiff’s own negligence was equal to or greater than Defendants’ negligence, and that the Court should apply the comparative fault rules of Colorado and find that Plaintiff cannot recover.

         B. The Incident on July 24, 2015

          In July 2015, Plaintiff Joan Pezzani, her husband (Martin Pezzani), and her two children (L.P, 13 years old, and N.P., 11 years old) took a trip to Colorado Springs to visit Plaintiff’s sister, Diana Heinz, and Diana’s family. During the visit, the Pezzani and Heinz families decided to go horseback riding at the Equestrian Center. Diana and her husband Tony had been to the Equestrian Center in the past with their children and had positive experiences. Based on their past experiences with the Equestrian Center, Tony and Diana knew the ride would be unguided, meaning there is not much oversight during the ride, and the riders navigated the horses themselves. However, it is not clear whether the Pezzanis knew, in advance, what it meant that the ride would be “unguided.” There were concerns raised about the Pezzanis’ 11-year-old daughter, N.P., going on the ride because she has hypoplastic left heart syndrome, is a “Make a Wish” child, and is never let out of sight of her mother. However, Tony calmed those concerns because of information he gave the Pezzanis, and the Pezzanis decided they wanted to go.

         When the group arrived at the Equestrian Center, Tony checked the entire group in. Although Tony typically had answered questions about the experience level of the riders in the group, he could not recall whether he gave an assessment of each person’s riding experience on the day in question. Tony did recall discussing N.P.’s needs and the ages of the children in the group. Once the group was checked in, Equestrian Center employee, Cody Wells, was available to help the riders mount their respective horses. According to Wells, it was a busy day at the Center. Both Plaintiff and her husband, Martin, credibly testified that Wells appeared to be in a bit of a rush when he assisted their group.

         The horses were brought out one at a time, and there was a lead rope from N.P.’s horse so that someone could control N.P.’s horse while on the trail. The members of the Heinz family were first to mount their horses, and they did so without incident. Plaintiff helped her two children mount their horses. Plaintiff’s husband, Martin, also safely mounted his horse, but only after asking Wells to lower the stirrups. At trial, Martin testified that when he went to mount his horse, he noticed that the stirrups were “too short to the saddle, too high off the ground.” (Tr. Vol. 1 at 134-35). He did not believe he could safely mount and relayed that to Wells. Wells explained to Martin that the stirrups had been set high for children riding the day before. Martin asked Wells to lower the stirrups. Wells was initially not responsive to this request but eventually lowered the stirrups after Martin asked him to do so multiple times. By the time Martin mounted his horse, the Heinz family and the two Pezzani children were on their horses and already heading out of the paddock area where the mounting was occurring. In order to keep up with his daughters, Martin started to follow the others. Plaintiff had not yet mounted at that time.

         Prior to the visit to the Equestrian Center on July 24, 2015, Plaintiff had ridden a horse about eight times, on guided trails. She did not consider herself an experienced rider, but she was comfortable with horses and was generally comfortable being around them. Plaintiff also felt comfortable mounting horses on her own and had never before failed to mount a horse. Although Wells was present when Plaintiff attempted to mount the horse, Wells did not ask her any specific questions about whether she knew how to mount the horse safely, whether she knew where to put her left foot, or any other questions about the specifics of how to mount a horse. Instead, Wells asked only, “Can you do this?” and Plaintiff said yes. (Id. at 18). He then said, “Lady, you good?” and Plaintiff said yes. (Id.).

         After this exchange, Plaintiff turned to look at the saddle and realized it looked like the stirrups were too high up for her to safely mount. Based on her in-court testimony and demonstration, Plaintiff seemed to think the bottom of the stirrup was near the middle of the horse’s belly. Although photographic evidence presented at trial suggests the stirrup was not as high up as Plaintiff perceived it to be, Plaintiff nevertheless believed the stirrup was up too high and asked Wells to lower the stirrup.

         Wells did not respond to Plaintiff’s initial request to lower the stirrup; and, when she asked him the second time, he “kind of laughed” and said, “You got long legs, you can get up there.” (Id. at 18-19, 138-39). Wells, who appeared to be in a hurry, did not offer Plaintiff a mounting block, a platform, or a leg up. At this point, Plaintiff was anxious because she could see that her daughters and husband were riding away, and she had expected that she would be guiding N.P.’s horse while her husband, Martin, assisted their other child during the ride. So, despite her misgivings about the height of the stirrup, Plaintiff tried, unsuccessfully, to mount the horse.

         In attempting to mount the horse, Plaintiff put her left foot in the stirrup while her right foot was on the ground. She had no problem putting her foot in the stirrup. She grabbed the saddle horn with her left hand and, contrary to proper mounting technique, placed her right hand on the seat of the saddle. Although Wells was standing next to Plaintiff at the time, he did not say anything to her about the manner in which she was attempting to mount the horse. Plaintiff pushed herself up on her left leg and tried to bring her right leg up and over, but it would not go over. Neither the saddle nor the horse moved, and she did not slip during the attempt to mount. However, Plaintiff was unable to get her right leg up and over the saddle. When Plaintiff was unable to get her right leg up and over the saddle, it came back down with a “tremendous amount” of force and twisted a little bit; she heard four very large pops when her foot hit the ground (Id. at 27-28, 40).

         C. Standard of Care Evidence

          At trial, the parties offered competing expert opinion testimony regarding the applicable standard of care applicable to trail riding centers like the Equestrian Center. 1. Plaintiff’s Expert, Randi Thompson Plaintiff’s expert, Randi Thompson, is a Certified Horsemanship Association (“CHA”) certified master instructor and clinician who, at the time of trial, had been working in the equine industry for 40 years and had been teaching and certifying instructors and trail guides for 25 of those years.[1] Relying on her professional experience and CHA manuals such as the “Riding Instructor and Trail Guide Manual” and the “Certified Horsemanship Association Standards for Equestrian Programs, ” Thompson testified that, to ensure rider safety, equestrian programs like the Equestrian Center should have a written procedure and practice for the mounting and dismounting for all riders for trail rides that includes a pre-ride briefing in which the experience level of each rider is assessed, instruction to the rider for proper mounting/dismounting procedures, and observation by employees during the mounting process to ensure the use of proper/safe mounting procedures.

         Relying in part on the Western Saddle Guide’s section on “How to Mount a Horse, ” Thompson testified that the safest way for an inexperienced rider to mount is to grab the saddle horn and the cantle or rear of the saddle for balance. A rider who places her hand on the seat of the saddle is not safely mounting, and a wrangler who observes this should stop the person.

         Thompson opined that in this case, the Equestrian Center failed to make a reasonable and prudent effort, through a CHA-type step-by-step process, to determine Plaintiff’s ability to safely mount the horse. Thompson testified that the Equestrian Center employee should have asked Plaintiff whether she could comfortably mount the horse from the ground, should have asked whether she could put her foot in the stirrup comfortably, should have asked her whether she knew where to put her hands (at least as soon as he saw where she put them), and should have made a determination of whether Plaintiff knew how to spring up. Thompson further opined that the wrangler “didn’t evaluate and he didn’t determine [Plaintiff’s] level or her abilities including taking her up to the horse. He should have known as soon as she put her hand in the wrong place, and he should have corrected it.” (Tr. Vol. 1 at 205). Thompson opined that, based on where Plaintiff stated she placed her hands before attempting to mount, it would be “almost impossible” for a rider to mount a horse. (Id. at 198-99).

         Specifically, Thompson pointed out that “[a] rider balances when they are getting up in a saddle, they hold both sides and it keeps them balanced, and it makes it easier for them when mounting from the ground to be able to lift their body up there.” (Id. at 198). Thompson testified that the Equestrian Center employee standing behind Plaintiff should have seen that Plaintiff did not know where to put her right hand and should have slowed her down and said, “Ma’am, your hand needs to be up here to balance your body. And at that point he may have needed to physically put her hand where it should have been where she could safely mount.” (Id. at 205-206). She testified, “It was obvious that for Plaintiff to put her hand in the wrong place tells you how much experience she really did not have.” (Id. at 207-208). In Thompson’s opinion, if the wrangler was not observing Plaintiff as she tried to mount, he fell below the standard of care:

Q. So, it’s possible that [the employee] may have looked away for a second, she puts her hand on the horn, puts a foot in the thing and jumps up, and he didn’t even see it? . . .
A. That’s impossible. If he’s standing next to her, he is the guide. He’s the wrangler. He’s in charge of her safety. That’s his job. If he’s not watching, shame on him.

(Id. at 247-48).

         Thompson also testified that when Plaintiff asked the employee two times to lower the stirrup, he should have lowered the stirrup or taken her to a mounting platform, even if he thought the stirrup was low enough. Thompson further testified that Plaintiff’s requests to lower the stirrup should have been a “red flag” to the employee to stop her from mounting and offer a safe way for her to mount. (Id. at 261-63). She testified that a wrangler “should know that when a customer requests that they lower the stirrup that there’s something going on . . . There’s a problem to be addressed.” (Id. at 237-38). In Thompson’s opinion, it was the Equestrian Center’s employee’s responsibility, as an alternative, to offer Plaintiff a mounting block or a “leg up.” (Id. at 243). Thompson testified that even if Plaintiff was in a hurry to get out on the trail to supervise her daughter, the wrangler “should have slowed her down and told her how to do it correctly. He was there to keep her safe.” (Id. at 253-54).

         Thompson disagreed that the safety procedures outlined above did not apply to the ride at issue because it was an unguided ride. She testified that simply because the ride itself was unguided, it did not mean that it would have been a proper and safe practice for the Equestrian Center simply to leave the group on its own during mounting. She also testified that at the beginning of the ride at the Equestrian Center, “[t]he process in the beginning is the same as if they were going on a guided trail ride. The wranglers bring the horses out, they mount the people, they tell them the basics of stop, start, and steer.” (Id. at 218).

         Thompson testified that the failure of the wrangler to either lower the stirrup or take Plaintiff to the mounting block was a violation of the standard of care for a trail ride operation. She also testified that the wrangler’s failure to make a reasonable and prudent attempt to determine the ability of Plaintiff to safely mount the horse was a violation of the proper standard of care for a trail ride operation.

         Thompson acknowledged there is an inherent risk of horseback riding that injury can occur due to the actions of a rider during the mounting process. However, Thompson opined that decisions regarding stirrup length for mounting and whether to use a mounting block are not inherent risks of equine activities, because they are decided on by a staff member. Thompson also opined that where, as in this case, a guide is present with an inexperienced rider mounting a horse, injury from an unsuccessful attempt to mount is not an inherent risk of horseback riding because the rider is being assisted. Thompson opined that inherent risks of equine activities do not include the actions or decisions of the trail operation staff.

         2. The Equestrian Center’s Practices Described by Cody Wells

         Equestrian Center wrangler, Cody Wells, testified at trial (via videotaped testimony) regarding the typical habits and practices he followed while working at the Equestrian Center. Consistent with Thompson’s opinions regarding the applicable standard of care, Wells testified that when someone came to the Equestrian Center, he would (i) assess the person’s riding experience by asking “if they had ever been out before, if they had ever ridden any horses before, what kind of horse experience they have, or anything like that;” (ii) give instructions and “make sure they knew how to get on the horse, how to steer and stop the horse, ” and tell them how the trail is laid out; (iii) ensure the stirrup length is “comfortable” and “correct” for the rider and adjust the stirrups if requested or offer a mounting block if necessary; and (iv) instruct the rider on where to place her hands when the rider is preparing to mount the horse. (Videotaped Deposition of Cody Wells, March 1, 2018 (“C.W. Dep.”) 10-11, 16-17, 24, 38). Wells also testified that if he saw a customer trying to get on a horse and put their hand on the seat of the saddle instead of the cantle, he would point it out and tell the person to put their right hand on the cantle or show them how he would do it. He believes that placing the hand on the saddle or face of the saddle is “not appropriate, but some people just do it so fast you can’t stop . . . them.” (C.W. Dep. 26).

         Wells could not testify whether he did or did not adhere to any of the foregoing practices on July 24, 2015, because he had no recollection of the Pezzani and Heinz families and no recollection of the incident on July 24th.

         3. Defendant’s Expert, Wayne Hipsley

         Defendant’s expert, Wayne Hipsley, opined that the CHA standards relied on by Plaintiff’s expert did not apply to the Equestrian Center. Hipsley has a bachelor’s degree in agricultural animal husbandry and a master’s degree in animal physiology. Hipsley’s qualifications include experience providing consulting and educational programs to horse organizations training horse show judges and exhibitors; serving as a licensed horse show judge for over 40 years; and serving as a consulting equestrian expert in legal matters in the United States and internationally. Hipsley agreed that “protocols need to be in place for equestrian riding operations such as the Equestrian Center;” however, he opined that pre-ride protocols are different for unguided and guided rides. (Tr. Vol. 2, at. 58). Specifically, Hipsley testified that when someone signs up for an unguided ride, there is an inference “that you basically are assuming the risk of everything from the time you mount the horse or you’re presented the horse until you return the horse to the stable.” (Id. at 21). He also testified that in an unguided ride, “the presumption is that the riders have come and they have experience in riding, controlling, and guiding a horse.” (Id. at 26). Hipsley contrasted an unguided ride with a guided program where, in his opinion, there are more specifics given as to how to control a horse, turn, and stop; it is designed for people who are not familiar with how to ride or how to control a horse. Hipsley acknowledged he did not see anything in the Equestrian Center Handbook or in any of the materials he was provided stating to riders at the Equine Center that they were on their own while mounting a horse.

         Hipsley acknowledged that the CHA’s Riding Instructor and Trail Guide says to show riders how they will mount and dismount, but he testified that he did “not agree that that standard applies to an unguided ride unless someone has asked for assistance.” (Id. at 61). He acknowledged that Plaintiff did ask for assistance by asking for her stirrups to be lowered two times. However, he disagreed that the Equestrian Center employee should have taken Plaintiff to a mounting platform before she attempted to mount; he testified, “No, because it’s my understanding that there was communication where she said she was comfortable mounting from the ground. And she had ridden previously. . . . [S]o there as an indication that that was not necessary.” (Id. at 41).

         Hipsley testified that there is no proper scientific measurement for stirrup length; “It’s all speculation on the reach of the left foot and leg. The athleticism of the person is really what it gets down to.” (Id. at 45). According to Hipsley, the fact that someone asks for her stirrups to be adjusted does not necessarily tell the wrangler anything about the rider’s physical ability to mount the horse; nor does it necessarily mean that the wrangler should just lower the stirrups. Instead, opined Hipsley, the judgment of the wrangler is preferred over that of the inexperienced rider.

         After looking at a photograph of N.P.’s horse, Hipsley testified that it appeared that stirrups of the same length as were on N.P.’s horse would have been adequate in length for Plaintiff to mount a similarly-sized horse. Because the wrangler asked Plaintiff to try to mount, Hipsley’s assumption is that he had estimated the stirrup to be in the proper length. Hipsley opined that the fact that Plaintiff put her left foot in the stirrup indicated that she was “ready or prepared to take the next step to climb on the horse.” (Id. at 51-52). However, he agreed that it did not mean the mount would be successful or without injury.

         Consistent with the testimony of Wells and Thompson, Hipsley testified that when mounting, the rider should put the left hand on the saddle horn or somewhere in that area, and “the right hand needs to be placed on the cantle of the saddle so that you’re pulling or presenting equal pressure, pull pressure to lift yourself up . . .” (Id. at 42). He also opined that while more experienced riders like rodeo riders or cowboys can safely mount a horse by placing their right hand on the seat rather than the cantle, when “we deal with lesser experienced riders, the bottom line is we want a left hand on the horn, a right hand on the cantle to help them pull up to keep them stable as they go through that process.” (Id. at. 54).

         Hipsley opined that the mounting process can be dangerous, for example if the horse walks off or the saddle slips. He testified that the risks associated with the mounting process are inherent risks of horseback riding. Hipsley also testified that the risks associated with the wrangler’s decisions regarding the height of the stirrup and whether to lower it are inherent risks of equine activities.

         Hipsley opined that the Equestrian Center staff acted appropriately and with the reasonable degree of care in getting the party of nine people mounted in this case, and they made every effort to assist with the mounting of the riders. He opined that the Equestrian Center employees adequately determined whether Plaintiff could participate in the activity safely and “conducted their process of making a determination to their standards for an unguided ride.” (Id. at 55).

         D. Damages Evidence

         After her family returned from the ride, Plaintiff was taken to urgent care, where she reported “hurt right knee when stepped off horse. Fell and heard multiple pops in right knee.” (Ex. 1). She was given an immobilizer and crutches and referred to an orthopedist. The Pezzani family returned to St. Louis the next day, and Martin testified that Plaintiff was in pain on the entire drive from Colorado to St. Louis.

         After she returned to St. Louis, Plaintiff went to see Dr. Robert Brophy, a board-certified orthopedic surgeon.[2] (Deposition of Robert Brophy (“R.B. Dep.”) At her first visit, on July 30, 2015, Dr. Brophy aspirated 45 ccs of fluid from Plaintiff’s knee, prescribed a brace, and ordered an MRI. The MRI showed a right anterior cruciate ligament (ACL) tear, a lateral meniscus tear, an osteochondral fracture of the posterior medial tibial plateau, a contusion of the posterior lateral femoral condoyle, and potential deep vein thrombosis (DVT, or blood clot). Dr. Brophy opined that these injuries were caused by Plaintiff falling and twisting the knee as described in his records.

         Venous doppler tests confirmed the existence of blood clots in Plaintiff’s lower right leg. Dr. Brophy opined that the clots formed either from the initial impact on the vein or from difficulty with weight-bearing after the actual trauma. To treat the blood clots, Plaintiff had to undergo a series of anti-coagulation injections and take oral Xarelto for months. She and her husband administered the injections two times per day, for 25 days, in her abdomen. As a side effect of her blood thinning regimen, Plaintiff had very heavy menstrual bleeding. By March 2016, there was no sign of DVT.

         Plaintiff’s leg remained in the first leg brace for about eight months. During this time, Plaintiff attempted physical therapy in an effort to avoid surgery. However, surgery was deemed necessary, and on April 6, 2016, Dr. Brophy performed surgery to repair the meniscus tear and reconstructed the ACL with a graft. He removed pieces of Plaintiff’s hamstring tendons, drilled into the femur and tibia, and attached the grafts with screws in each bone, and “tied it over a post.” (R.B. Dep. ...


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