Where a participant in a rodeo made a “deliberate, considered, and voluntary decision to ride” an animal that had a propensity for injuring its riders that participant has assumed a risk of injury that severely limits his legal recourse, the Supreme Court of Nebraska has ruled in a majority decision affirming a trial court’s decision to grant summary judgment to the defendants.
Troy Burke was an 18-year-old veteran of junior rodeos when he entered the bareback event of a high school rodeo in Madison, Nebraska on May 26, 2000. The draw for the bareback event was posted approximately 2 hours before the competition began. When he looked at the draw, Burke recognized the horse, No. 18, he was to ride from another rodeo. In that rodeo, the horse flipped over backward onto its rider, injuring the rider.
Burke testified that he was concerned about riding the in the Madison rodeo and even asked another competitor if he had seen the horse act in a more typical fashion during a rodeo. The competitor said he had, which seemed to satisfy Burke.
Burke’s father, who was an observer at the Madison rodeo, also recognized the horse, but only minutes before his son’s ride. He did not, however, express any concerns until after the ride.
“He agreed that both he and Burke knew that horse No. 18 was the same horse involved in the incident at the O’Neill rodeo and that they each had an opportunity to stop the ride, but chose not to do so,” wrote the high court.
However, the ride went on as planned and Burke was injured when the horse “stood up on his back legs and threw himself to the rear in such a way that he fell over backwards, suddenly crushing Burke between his back and the ground.”
Burke sued the rodeo stock contractor McKay Rodeo Company, Inc. (MRC), and Robert M. McKay, its sole shareholder. The Nebraska High School Rodeo Association (NHSRA) was subsequently joined as a defendant.
The trial court entered summary judgment in favor of all defendants, finding that Burke had assumed the risk of injury. The Burkes appealed.
In its review, the appeals court noted that the Burkes had signed a “Minor’s Release, Assumption of Risk and Indemnity Agreement,” at least partially waiving their right to sue in the event of injury. The entry form, which the Burkes filled out and signed, also included protections for the defendants.
The court wrote that its “primary inquiry” in the instant case is “whether Burke knew of and understood the specific danger involved in riding horse No. 18 in the Madison rodeo.” This resolved in the affirmative, the court sought to determine whether Burke “voluntarily exposed himself to the danger.” In resolving the latter question, the court found that “Burke considered the specific risk posed by riding horse No. 18 and made a conscious decision to expose himself to the potential danger by riding the horse in competition.”
Turning to the culpability of the defendants in the case, the court found that “there is nothing in the record to suggest that (they) had knowledge with respect to the bucking tendencies or propensities of horse No. 18 superior to that of Burke or his father.
“Burke’s deliberate, considered, and voluntary decision to ride the horse with full knowledge of the specific risk of danger based upon the animal’s prior actions thus constitutes assumption of risk as a matter of law.”
In a dissenting opinion, three of the judges believed the information provided by a fellow competitor to Burke created a “genuine issue of fact as to Burke’s subjective appreciation and understanding of the specific risk, to wit: that the horse would not buck normally, but would instead rear up and flip over backward. Whether Burke was negligent in reaching that conclusion is not the issue presented by this appeal. Because I do not believe it is appropriate for Burke’s assumption of the risk to be decided as a matter of law, I would reverse the granting of summary judgment on this basis and remand the matter to the district court for further proceedings.”
Burke v. McKay et al., S. Ct. Neb., No. S-02-1371, 5/21/04
Attorneys of Record: (for plaintiff) Maren Lynn Chaloupka and Robert Paul Chaloupka, of Chaloupka, Holyoke, Hofmeister, Snyder & Chaloupka. (for defendant Nebraska High School Rodeo Association) Kimberli D. Dawson and Bruce L. Hart, of Hart, Dawson & Sudbeck, P.C., L.L.O.; (for defendant McKay Rodeo Company) Robert F. Peterson, of Laughlin, Peterson & Lang; (for defendant Robert M. McKay) Curtis D. Ruwe, of Fitzgerald, Vetter & Temple, and C.J. Gatz.