Dullmaier v. Xanterra Parks & Resorts , 883 F.3d 1278 ( 2018 )

FILED
United States Court of Appeals
Tenth Circuit
February 27, 2018
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
THERESE DULLMAIER, as the
Wrongful Death Representative of
Karl-Heinz Phillip Dullmaier,
Plaintiff - Appellant,
Nos. 16-8017 & 16-8049
v.
XANTERRA PARKS & RESORTS;
JOHN DOES, I-IV,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Wyoming
(D.C. No. 2:14-CV-00181-SWS)
Gerard R. Bosch and Mary Alison Floyd, Law Offices of Jerry Bosch, LLC,
Wilson, Wyoming, for Plaintiff-Appellant.
Aaron P. Bradford, Bradford, Ltd, Denver, Colorado, David R. Fine, and Maxwell
N. Shaffer, Holland & Knight, LLP, Denver, Colorado, for Defendants-Appellees.
Before BRISCOE, HARTZ, and HOLMES, Circuit Judges.
HOLMES, Circuit Judge.
A Wyoming statute provides that “[a]ny person who takes part in any sport
or recreational opportunity assumes the inherent risks in that sport or recreational
opportunity.” W YO . S TAT . A NN . § 1-1-123(a). It also states that “providers” of
such opportunities have no duty “to eliminate, alter or control the inherent risks
within” certain sport or recreational opportunities. Id. § 1-1-123(b).
In 2012, Karl-Heinz Dullmaier was killed during a guided horseback ride in
a wilderness area of Yellowstone National Park. His wife, Therese Dullmaier,
brought a wrongful-death action against the company that provided the ride. The
district court granted summary judgment to the company, and Ms. Dullmaier
appeals.
The main question before us is whether Mr. Dullmaier’s fatal injuries
stemmed from risks that are inherent in the particular sport or recreational activity
in which he elected to participate—that is, a guided horseback trail ride in a
wilderness area. We conclude that his injuries did stem from such risks. We also
determine that Ms. Dullmaier’s other state-law claims—for negligent
misrepresentation and nondisclosure—have no merit. Lastly, we reject Ms.
Dullmaier’s challenge to the district court’s award of costs. We affirm.
I
Xanterra Parks & Resorts, Inc. (“Xanterra”) is a Delaware corporation that
provides guided horseback rides in Yellowstone National Park. Karl-Heinz
Dullmaier was a German citizen who visited Yellowstone in 2012. This case
2
arose after Mr. Dullmaier was killed during one of Xanterra’s tours.
A
The Dullmaiers—along with Karen Donohoo, the family’s au
pair—traveled to Wyoming for a family vacation in July 2012. On the morning of
July 30, Mr. Dullmaier and Ms. Donohoo arrived at Roosevelt Corrals for a one-
hour horseback ride through Yellowstone National Park. They were given an
acknowledgment-of-risk form, which stated that “[h]orses can act unpredictably,”
and that “[c]ertain risks are normally involved in riding,” such as “collisions or
falls.” Aplt.’s App., Vol. 2, at 307. At the bottom of the form, a section stated
that any rider who signed would “assume full responsibility for [him or
her]self, . . . for bodily injury [or] death.” Id. Mr. Dullmaier and Ms. Donohoo
both signed the form.
Each one-hour ride followed the same path, beginning and ending at the
Roosevelt Corrals and tracing a long loop through a wooded wilderness area.
Riders started out on a dirt road and crossed into a meadow. From there, they
rode over a small hill and eventually passed through an area known as Pleasant
Valley. A creek, spanned by a narrow bridge, runs through Pleasant Valley.
Riders must cross the bridge in a single-file line.
Three wranglers were assigned to guide the guests who had signed up for
the one-hour ride. Jeremy Wilson, the lead wrangler, was to ride at the front of
the group. Erin Flynn and Sarah Soltys, the outrider wranglers, were assigned to
3
stay alongside the other riders. Outrider wranglers “kind of just watch over half
the line,” and “mov[e] up [and] down” the line to make sure that the ride goes
smoothly. Id. at 413. Ms. Soltys was assigned to the front half of the group,
while Ms. Flynn took responsibility for the back half.
The ride began normally. There were twenty riders, including a few
children. Mr. Dullmaier, riding a horse named Duke, was at the end of the line of
riders. Ms. Donohoo was immediately in front of Mr. Dullmaier and Duke.
The riders eventually entered Pleasant Valley. Mr. Wilson was at the front
of the line, looking back over the other riders. As they got close to the bridge,
Mr. Wilson’s horse, Bugs, stopped short. Mr. Wilson saw nothing that was
blocking the path, so he kicked Bugs to keep moving. Bugs took a few steps
forward. Suddenly, a few ducks flew out from underneath the bridge. The ducks
surprised Bugs, who reared back, pivoted, and threw Mr. Wilson to the ground.
Bugs then turned and took off in the opposite direction, running away from the
bridge and back down the line of horses.
The commotion spooked Lakota, another horse in the line. He backed away
from the bridge, then turned and began to run after Bugs. Still on the ground, Mr.
Wilson saw that a child was still riding Lakota. He immediately started chasing
the horse, “screaming [for the child to] ‘[p]ull back on the reins’” and slow
Lakota down. Id. at 409. Lakota sped up. The child slid to the side and fell from
the saddle, landing awkwardly on his head and shoulder. Worried that the boy
4
was seriously hurt, Mr. Wilson ran towards him and radioed back to the corrals
for medical aid.
The line of horses started to break apart. From her position at the back of
the line, Ms. Flynn could see that the other horses had “fanned out,” probably to
“get out of the way” when “Bugs and Lakota [had come] barreling through them.”
Id. at 397. Ms. Flynn later testified that the other horses probably did not see the
ducks, “but they saw the other horses were scared, which made them nervous,
too.” Id. at 398. As she put it, “[h]orses do not like to be apart,”—when horses
see another horse “take[] off running,” the other horses usually “want to follow.”
Id. Within a few seconds, “[e]very single horse [had] turned” and started
galloping away from the bridge toward the trail. Id. at 391.
Ms. Flynn and Ms. Soltys tried to regain control of the line. Their aim, Ms.
Flynn said, was to “get control of [each] horse, unless somebody ha[d] come off
of that horse.” Id. Ms. Flynn later testified that they were less worried about
losing riderless horses—those horses eventually make their way back to the corral
on their own—than about the safety of each person riding the spooked horses. As
she put it, runaway horses “are terrified.” Id. at 399. “They just do not stop.” Id.
One of those horses was Mr. Dullmaier’s horse, Duke. Id. As the line
broke apart, Duke ran back down the trail towards the hill. Ms. Flynn guessed
that Duke was about 100 yards ahead of her, galloping at full speed toward the
small hill on the other side of the valley. This alarmed Ms. Flynn. She knew that
5
“it’s very hard to sit” in a saddle when riding downhill at a fast pace, and that
“even the most experienced rider has problems coming downhill at a gallop.” Id.
at 391, 398.
Ms. Flynn felt that she needed to “do everything [she] could to help [Mr.
Dullmaier] stop” before Duke reached the hill, since “Duke wasn’t going to stop”
unless she forced him. Id. So, she tried “to get around [Duke], come out in front
of him, [and] form a T.” Id. This would force Duke to slow down, giving Ms.
Flynn a chance to grab his reins and redirect him until he stopped running. To
reach Duke at the best angle—and to avoid scaring him, which might make him
speed up—she rode after him in a wide curve, rather than chasing him from
behind.
Riding hard, she eventually caught up with Duke and Mr. Dullmaier. She
called out to Mr. Dullmaier, telling him to “[p]ull as hard as [he could] back on
[his] reins.” Id. at 391. She also yelled to Duke, who knows his name and
responds to voice commands, trying to calm him. Id.
Neither tactic worked. Ms. Flynn was about twenty yards away from Duke
when he crested the hill and began galloping down the other side. Mr. Dullmaier
“started bouncing.” Id. at 391. He eventually lost his grip on the saddle horn,
slid to the side of the saddle, and fell to the ground. Ms. Flynn stopped her horse
and immediately radioed for medical help. When she made it over to Mr.
Dullmaier, he was unresponsive and bleeding from his ears, nose, and mouth. Mr.
6
Dullmaier was eventually airlifted to a hospital in Billings, Montana, where he
died from his injuries.
B
Therese Dullmaier filed a complaint in Wyoming state court on July 29,
2014. She brought four state-law tort claims against Xanterra: (1) negligent
misrepresentation; (2) nondisclosure; (3) negligent supervision and training; and
(4) negligence. Xanterra removed the suit to the U.S. District Court for the
District of Wyoming.
Thereafter, Xanterra moved for summary judgment. In support of its
motion, Xanterra first argued that Wyoming law does not recognize a freestanding
claim for negligent nondisclosure. As to the remaining three claims, Xanterra
argued that any risks associated with spooked, runaway horses were inherent in
the activity of horseback riding. And, pursuant to the Wyoming Recreation
Safety Act (“WRSA”), W YO . S TAT . § 1-1-121, it owed no duty to protect Mr.
Dullmaier from the inherent risks of horseback riding. The district court agreed,
granting Xanterra’s summary-judgment motion on all of Ms. Dullmaier’s claims.
Xanterra submitted a bill of costs on February 12, 2016. Ms. Dullmaier
objected to the request. The clerk of court awarded Xanterra its costs and Ms.
Dullmaier moved to review that award. In a six-page order, the district found that
the costs were properly awarded.
7
Ms. Dullmaier now appeals the district court’s summary-judgment order
and its cost award.
II
We review a district court’s summary-judgment order de novo. See, e.g.,
Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1167 (10th Cir. 2007).
Summary judgment is appropriate when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” F ED . R. C IV . P. 56(a).
Thus, not every factual dispute “will properly preclude the entry of
summary judgment”; the dispute must be genuine and relate to material issues of
fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “As to
materiality, the substantive law will identify which facts are material.” Id. When
applying this standard, we “view the evidence and draw reasonable inferences
therefrom in the light most favorable to the nonmoving party.” Simms v.
Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d
1321, 1326 (10th Cir. 1999).
This is a diversity case, so we apply the substantive law of the forum state,
Wyoming. See, e.g., Wood v. Eli Lilly & Co., 38 F.3d 510, 513 (10th Cir. 1994)
(“[W]e must apply the most recent statement of state law by the state’s highest
court.”); see also Stickley v. State Farm Mut. Auto. Ins. Co., 505 F.3d 1070, 1077
(10th Cir. 2007) (“The decision of an intermediate appellate state court ‘is a
8
datum for ascertaining state law which is not to be disregarded by a federal court
unless it is convinced by other persuasive data that the highest court of the state
would decide otherwise.’” (quoting West v. Am. Tel. & Tel. Co., 311 U.S. 223,
237 (1940))). “[W]hen a panel of this Court has rendered a decision interpreting
state law, that interpretation is binding on district courts in this circuit, and on
subsequent panels of this Court, unless an intervening decision of the state’s
highest court has resolved the issue.” Kokins v. Teleflex, Inc., 621 F.3d 1290,
1295 (10th Cir. 2010) (quoting Wankier v. Crown Equip. Corp., 353 F.3d 862,
866 (10th Cir. 2003)).
A
We first address Ms. Dullmaier’s claim for negligent misrepresentation. In
that claim, she alleged that Xanterra “solicited and promoted their horseback
rides,” and “should have known that members of the general public would rely on
the information provided” in choosing to go on one of the rides. Aplt.’s App.,
Vol. 1, at 24. She also alleged that she and Mr. Dullmaier “relied on [Xanterra’s]
information that the horses were trail broke” and that guides “were nearby [and]
prepared to help.” Id. Mr. Dullmaier’s death, she averred, was “a direct result of
these misrepresentations.” Id.
Wyoming has adopted the negligent-misrepresentation standard laid out in
the R ESTATEMENT (S ECOND ) OF T ORTS § 552. That standard requires a plaintiff to
show (1) “[f]alse information supplied in the course of one’s business for the
9
guidance of others in their business,” (2) “failure to exercise reasonable care in
obtaining or relating the information,” and (3) “pecuniary loss resulting from
justifiable reliance thereon.” Verschoor v. Mountain W. Farm Bureau Mut. Ins.
Co., 907 P.2d 1293, 1299 (Wyo. 1995) (quoting R ESTATEMENT (S ECOND ) OF
T ORTS § 552 (1965)).
The district court found that Ms. Dullmaier failed to satisfy these elements.
In particular, it held that Ms. Dullmaier had never “allege[d] that Mr. Dullmaier
relied upon the representations in his business or in a commercial transaction as
required in the first element.” Aplt.’s App., Vol. 5, at 1171.
This is the correct result. The Dullmaiers visited Yellowstone as part of a
family vacation, not a business trip. Nothing in the record suggests that Mr.
Dullmaier sought to do business with Xanterra. Nor does anything imply that the
horseback-riding information that Xanterra provided to Mr. Dullmaier was
somehow related to his commercial interests. Under the standard set out in § 552,
Ms. Dullmaier has no claim for negligent misrepresentation. See, e.g., Meyer v.
Conlon, 162 F.3d 1264, 1272 (10th Cir. 1998) (concluding that no negligent-
misrepresentation claim could be established when the defendants’
representations were not made for “the guidance of [the plaintiff] in his
business”).
10
Ms. Dullmaier argues that we should apply § 311 from the R ESTATEMENT
(S ECOND ) OF T ORTS , which sets out the tort for negligent misrepresentation
involving physical harm. See R ESTATEMENT (S ECOND ) OF T ORTS § 311 (1965).
Ms. Dullmaier argues that § 311 is more appropriate, since it “finds particular
application where it is part of the actor’s business or profession to give
information upon which the safety of the recipient or a third person depends.” Id.
cmt. b.
But this argument has no merit. Wyoming courts have never recognized a
generic negligent-misrepresentation tort like the one set out in § 311. See Willis
v. Bender, 596 F.3d 1244, 1259 n.9 (10th Cir. 2010) (noting that Wyoming “has
not adopted th[e] definition for the generic tort of negligent misrepresentation”
set out in § 311 of the R ESTATEMENT (S ECOND ) OF T ORTS ); Corsi v. Jensen Farm,
No. 2:12-CV-052-SWS, 2013 WL 11330880, at *3 n.5 (D. Wyo. Oct. 11, 2013)
(unpublished) (“Wyoming has not adopted [§ 311’s] definition for the generic tort
of negligent misrepresentation.”).
B
Ms. Dullmaier also appeals from the district court’s summary-judgment
decision on her nondisclosure claim. In that claim, she alleged that Xanterra
“failed to exercise reasonable care in insuring [sic] that [Mr. Dullmaier] was
aware of the risks, hazards, and dangers associated with horseback riding.”
11
Aplt.’s App., Vol. 1, at 25.
But this claim, which sounds in negligence, is not cognizable under
Wyoming law. Wyoming does not recognize a tort for negligent nondisclosure.
See, e.g., Claman v. Popp, 279 P.3d 1003, 1015 n.1 (Wyo. 2012) (“Wyoming does
not recognize a claim for negligent nondisclosure . . . .”). Therefore, Ms.
Dullmaier’s nondisclosure claim was properly dismissed.
C
1
We now turn to Ms. Dullmaier’s remaining claim for negligence. 1 The
relevant law centers around the WRSA, W YO . S TAT . A NN . § 1-1-122, which
applies to negligence claims involving sport or recreational opportunities, such as
horseback riding. “In order to prevail on any negligence action, a plaintiff must
first establish that the defendant owed him or her a duty of care.” Cooperman v.
David, 214 F.3d 1162, 1165 (10th Cir. 2000). “To protect providers of
1
In her complaint, Ms. Dullmaier pleaded a separate claim for
negligent supervision and training. In ruling on summary judgment, the district
court determined that Wyoming treats such “claims as a form of negligence
claim,” and accordingly “consider[ed] [Ms. Dullmaier’s] negligence and negligent
training and supervision claims together.” Aplt.’s App., Vol. 5, at 1172. On
appeal, Ms. Dullmaier does not contend that the district court erred in this
respect, nor does she pursue a separate and discrete challenge with respect to her
negligent supervision and training claims. Therefore, we address here only Ms.
Dullmaier’s challenge with respect to her negligence claim and deem any separate
argument with respect to her negligent supervision and training claim to be
waived. See, e.g., Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007).
12
recreational sports and activities from liability for alpine skiing, equine activities,
and other outdoor pursuits in the state, the Wyoming legislature limited their duty
of care by enacting the [WRSA].” Dunbar v. Jackson Hole Mountain Resort
Corp., 392 F.3d 1145, 1148 (10th Cir. 2004); see Carden v. Kelly, 175 F. Supp.
2d 1318, 1328 (D. Wyo. 2001) (“The [WRSA] limits the duty that a provider of a
recreational activity owes to a participant.”). Two provisions of that statute are
important for our purposes.
The first provision is section 1-1-123 (“Assumption of the Risk”), which
states that a person “who takes part in any sport or recreational opportunity
assumes the inherent risks in that sport or recreational opportunity,” and that “[a]
provider of any sport or recreational opportunity is not required to eliminate, alter
or control the inherent risks within the particular sport or recreational
opportunity.” W YO . S TAT . A NN . § 1-1-123(a)–(b).
The second provision is section 1-1-122, which defines “inherent risk” as
“those dangers or conditions which are characteristic of, intrinsic to, or an
integral part of any sport or recreational opportunity.” Id. § 1-1-122(a)(i). That
provision also defines “provider” in pertinent part to mean “any person . . . [who]
offers or conducts a sport or recreational opportunity.” Id. § 1-1-122(a)(ii). The
term “sport or recreational opportunity” encompasses “horseback riding and any
13
other equine activity,” including “[d]ay use rental riding, [or] riding associated
with a dude ranch.” Id. § 1-1-122(a)(iii), (a)(iv)(G).
The Wyoming legislature amended the WRSA in 1996 to clarify the
meaning of “inherent risk.” See 1996 Wyo. Sess. Laws ch. 78 (S.F. 65). But the
legislature at that time “did not define the meaning of ‘inherent risk’ more
precisely through careful iteration.” Sapone v. Grand Targhee, 308 F.3d 1096,
1101 (10th Cir. 2002). Instead, it “settled on an approach that leaves to the courts
the task of defining what is and what is not an inherent risk within the meaning of
the statute.” Id. And, in undertaking this definitional task, we must acknowledge
that “[w]hat is inherent to a sport or activity . . . is far from self-evident.”
Dunbar, 392 F.3d at 1148.
With this background in mind, we ask whether Mr. Dullmaier’s death was
the result of an “inherent risk” of the guided trail ride through a wilderness area
that Xanterra provided. If it was, then Xanterra owed Mr. Dullmaier no duty to
“eliminate, alter or control” that risk. W YO . S TAT . A NN . § 1-1-123.
2
“The circumstances of each case control whether the question of inherent
risk is to be decided by the court or by a jury.” Kovnat v. Xanterra Parks &
Resorts, 770 F.3d 949, 955 (10th Cir. 2014). “The level of factual specificity
required to establish an inherent risk will often but not always preclude summary
14
judgment on the duty question.” Creel v. L & L, Inc., 287 P.3d 729, 737 (Wyo.
2012); see Cooperman, 214 F.3d at 1166 (noting that the Wyoming Supreme
Court “did concede, however, that in certain instances where no material
questions of fact exist, the district court may decide as a matter of law that a
provider does not owe a duty to the participant under the Safety Act”); see also
Addakai v. Witt, 31 P.3d 70, 75 (Wyo. 2001) (“In close cases, we have expressed
a preference for allowing jurors to decide just what is or is not a risk inherent to a
particular recreational activity[.]”).
As for the requisite level of factual specificity, we opined in Cooperman:
“When attempting to determine whether a risk is inherent to a sport, we can not
look at the risk in a vacuum, apart from the factual setting to which the rider was
exposed. And, we must evaluate the risk at the greatest level of specificity
permitted by the factual record.” 214 F.3d at 1167; accord Madsen v. Wyo. River
Trips, Inc., 31 F. Supp. 2d 1321, 1328 (D. Wyo. 1999) (construing the WRSA);
see also Creel, 287 P.3d at 735 (stating that the WRSA’s inherent-risk analysis
requires courts to “consider[] the specific facts surrounding the claimed injury”).
More specifically, we seek to identify with the greatest degree of specificity
possible the risks that caused the consumer’s alleged harm and, then, inquire
whether those risks were inherent in the sport or recreational opportunity in which
the consumer elected to participate.
15
A careful examination of three of our cases decided in the horseback-riding
context illuminates this fact-specific inquiry and underscores helpful guideposts
for our resolution of this case:
Cooperman: We begin with Cooperman. That case involved a guided trail
ride in Pinedale, Wyoming. The plaintiff “felt his saddle begin to slide” “around
the belly of the horse.” 214 F.3d at 1163. The plaintiff slid with the saddle, fell
to the ground, and hurt his shoulder. Id. Before the saddle slipped, the plaintiff
“had not had any problems with his horse or his saddle, and had not sensed that
anything was wrong with the saddle.” Id. The plaintiff sued the provider in
district court, and the court granted summary judgment to the provider. Id. at
1163–64.
We affirmed. We pointed out that “[h]orseback riding undoubtedly carries
some inherent risk that the rider will fall off the horse and get injured.” Id. at
1167. For example, “[a] horse . . . stumbl[ing] on an uneven path, or rear[ing], or
simply begin[ning] to gallop for no apparent reason . . . clearly would qualify as
inherent risks of horseback riding.” Id. But “[s]imply because some risks are
inherent in horseback riding . . . does not mean that all risks of falling from a
horse are necessarily inherent.” Id.
The evidence revealed that Mr. Cooperman fell because “the saddle
slipped.” Id. at 1168. And we had no doubt based on the record that “a slipping
16
saddle, with no other facts provided, is an inherent risk of horseback riding.” Id.
But the facts presented to us obliged us to inquire at “a greater degree of
specificity than simply stating that the saddle slipped.” Id. In this regard, we
recognized that “[w]hile slipping saddles under certain fact specific situations
may be inherent, under other facts it may not be inherent.” Id. at 1167 n.5. Here,
the evidence indicated that Mr. Cooperman’s saddle was “loosely cinched” and
that this was a risk to which Mr. Cooperman was exposed along with the risk of
saddle slippage. Id. at 1168. Thus, we held that, “[f]or purposes of summary
judgment, then, the issue is whether a slipping saddle that is loosely cinched is an
inherent risk of horseback riding.” Id.
We concluded that it was. Saddles must be cinched when placing them on
horses, and “because cinching a saddle is done by hand, and not with scientific
precision, a provider must make a judgment call as to how tight or loose to cinch
the saddle.” Id. Consequently, we reasoned that “[t]his imprecision in the
cinching of the saddle” is inherent in “the sport of horseback riding,” which
involves saddles. Id. More specifically, we stated, “When the cinching of a
saddle can be too tight or too loose, and the cinching is not done with scientific
precision, it is inherent in the sport that the provider at times will cinch too
loosely or too tightly.” Id.
17
Thus, there was a causal connection between Mr. Cooperman’s harm and an
inherent risk of the sport or recreational opportunity that he participated in—a
guided horseback ride through a wilderness area. Put another way, there was a
causal connection between his harm and the inherent risk of slipping in a saddle
that was loosely cinched. This signaled the ultimate demise of Mr. Cooperman’s
negligence claim under the WRSA because the provider had no duty to
ameliorate, mitigate, or eliminate (i.e., “to eliminate, alter or control”) this risk.
Before sounding the death knell on Mr. Cooperman’s claim, however, it is
notable that we acknowledged that the fact-specific inquiry in some instances may
result in us discerning—at a greater level of specificity—atypical or non-inherent
causal factors that may preclude summary judgment. In this regard, we
recognized the need to inquire whether Mr. Cooperman was able to come forward
with “some evidence on summary judgment that would raise a question of fact
that the loosely cinched saddle was caused, not by an inherent risk, but rather by a
risk that was atypical, uncharacteristic, not intrinsic to, and thus not inherent in,
the recreational activity of horseback riding.” Id. at 1169. We declined to opine
“as to what factual proof would take the risk of a slipping saddle outside the
realm of an inherent risk,” finding it sufficient to conclude that Mr. Cooperman
was not able to furnish any such proof. Id.
18
Kovnat: Litigating over a very similar incident that occurred over a decade
after Cooperman, the plaintiff in Kovnat sought to provide such proof of atypical
risks to which the provider had exposed her—extending beyond the risks inherent
in horseback-riding—that pertained to the cinching of a saddle and uneven
stirrups. 770 F.3d at 958. In the words of Cooperman, the plaintiff endeavored
to provide proof that “would take the risk of a slipping saddle outside the realm of
an inherent risk.” Cooperman, 214 F.3d at 1169. Applying Cooperman’s
teachings, we affirmed the district court’s summary-judgment order in favor of
the provider with respect to the cinching of the saddle but reversed with respect to
the uneven stirrups. See id. at 958–60.
The negligence lawsuit in Kovnat stemmed from injuries that the plaintiff
sustained while participating in an evening horseback trail ride. See id. at
951–52. Her saddle slipped and moved until its seat was underneath the horse,
and the plaintiff moved with the saddle; as a consequence, “she struck her back
on the ground” and suffered fractures to several vertebrae. Id. at 952. The
district court framed the relevant issue for summary-judgment disposition as
whether a saddle slipping due to uneven stirrups and/or an incorrectly-secured
cinch constituted an inherent risk of horseback riding, and answered the question
in the affirmative. See id. at 958. The district court concluded therefore that the
provider had no duty under the WRSA to mitigate, ameliorate, or eliminate these
19
risks and was entitled to judgment against the plaintiff’s negligence claims. See
id. We affirmed the district court’s judgment regarding the cinch but reversed as
to the uneven stirrups, holding that “genuine issues of material fact exist
regarding the issue.” Id.
Unsurprisingly, in the aftermath of Cooperman, the plaintiff did not argue
that a loose cinch in itself was an atypical risk of the kind of horseback-riding
opportunity in which she participated; instead, the plaintiff alleged that the
provider’s negligent conduct in failing “to check the cinch prior to her leaving the
corral . . . exposed [her] to the risk of riding with an unusually loose saddle
cinch.” Id. at 959 (emphasis added). We rejected this contention, concluding that
“the evidence in the record on appeal . . . indicates that [the provider’s]
employees repeatedly checked the cinch tension on her saddle multiple times
before she left the corral.” Id. Having determined that the plaintiff’s purported
proof of an atypical risk associated with cinching was without substance, we
concluded that plaintiff was in essentially the same place as the Cooperman
plaintiff. Specifically, “we agree[ed] with the district court that any risks
associated with the cinching of [the plaintiff’s] saddle were inherent in the sport
of horseback riding,” and thus affirmed the court’s judgment under the WRSA.
Id.
20
We reached the opposite conclusion, however, with respect to the uneven
stirrups, concluding under the evidence that the plaintiff “would have been
exposed to an atypical risk, rather than a risk inherent in the sport of horseback
riding.” Id. at 960. In doing so, we acknowledged that “the district court was
correct in noting that the evidence in the record establishes that, like saddle
cinching, the task of ensuring that a rider’s stirrups are even is a matter of human
judgment that is not performed ‘with scientific precision.’” Id. (quoting
Cooperman, 214 F.3d at 1168)). But we concluded that a reasonable jury could
find that this was not a situation (like Cooperman) where the plaintiff’s injuries
stemmed from unwanted but inevitable imprecision by human beings in adjusting
the length of stirrups—a risk that was inherent to horseback riding. See id.
(noting “that is not what happened in this case”).
Instead, the record indicated that “after [the plaintiff] was assisted by [the
provider’s] personnel in mounting her horse, her stirrups were noticeably uneven”
and “she immediately said to her husband, loud enough for [the provider’s]
wranglers to hear” that her legs hung unevenly and she was uncomfortable. Id.
Further, the evidence showed that “uneven stirrups are visually noticeable and
necessarily warrant corrective action.” Id. Thus, we reasoned that
a jury could reasonably find that the wrangler who overheard and
commented on [the plaintiff’s] concerns about her stirrups [i.e.,
saying that they were “fine”] was not in a position to see both of
[the plaintiff’s] stirrups and otherwise made no attempt to ensure
21
that the stirrups were even, or was aware of the unevenness of
[the plaintiff’s] stirrups but made a choice not to adjust them.
Id. “We conclude[d] that, under either of these factual scenarios, [the plaintiff]
would have been exposed to an atypical risk, rather than a risk inherent in the
sport of horseback riding. In turn, [the provider] would not be immune from
liability under the WRSA.” Id.
Sapone: Though the legal steps of our analysis were somewhat less
explicit, we followed a similar path in Sapone, in concluding that the plaintiffs
had raised triable issues of fact regarding the existence of a causal connection
between atypical or non-inherent risks and the harm at issue. That case involved
a young girl (apparently six years old) who was injured after falling from a horse
during a private horseback-riding lesson for the girl and her young brother. 308
F.3d at 1098. Despite the lesson being for young children, the instructor had
placed the children on adult-size horses, given them no instructions on the
handling of the horses, and taken the children on an advanced trail instead of
confining the lesson to a fenced-in corral. Id. We succinctly described the
incident contributing to the girl’s injuries:
During their descent down the mountain trail, [the girl’s] horse
suddenly “bolted” for the stables, and [the girl] fell from her
saddle. With her foot stuck in the stirrup, she landed on her head
and was dragged along the ground for at least several paces
before she could wrench her foot free and roll to her back. In the
process, her head was struck by the horse’s hoof.
22
Id. The girl’s parents sued the company that provided the lesson. The district
court granted the provider’s summary-judgment motion, finding that “falling from
a ‘bolting’ horse is an inherent risk of horseback riding.” Id. at 1100.
We reversed, holding that “genuine questions of material fact remain which
are relevant to the question of whether the plaintiff’s injury was caused by an
inherent risk.” Id. at 1098. We did not question the obvious fact that the girl
“fell from the horse.” Id. at 1103. And we recognized that “it is an inherent risk
that a horse might bolt”; however, citing Cooperman, we underscored that this
was “not the specific question before us.” Id. at 1104. “[W]e disagree[d] with
the district court’s conclusion that falling from this particular bolting horse is an
inherent risk of horseback riding.” Id. (emphasis added). In adopting this
position, we progressed to a greater level of factual specificity, as Cooperman had
instructed, in discerning the risks at issue. In particular, we seemed to take note
that the particular sport or recreational opportunity, in which the parents elected
to have their child participate, was not an adult horseback-riding trail tour, but
rather a private children’s horseback-riding lesson. Specifically, we reasoned that
there were genuine issues of material fact regarding whether the child’s fall from
a horse in this children’s-lesson context, stemmed in significant part from atypical
or non-inherent risks to which the provider exposed the child. See id. (“[The
child] presented evidence to show that the injury may have been caused not by an
23
inherent risk, but rather ‘by a risk that was atypical, uncharacteristic, [and] not
intrinsic to the recreational activity of horseback riding.’” (quoting Cooperman,
214 F.3d at 1169)); see also Dunbar, 392 F.3d at 1149–50 ( “[I]n Sapone, we
concluded that a child sustaining injuries when falling from the saddle during a
trail-riding lesson was not an inherent risk when there was evidence that the horse
was too large, that the instructions were inadequate, that no headgear was
provided, and that the route was too dangerous.”).
We reasoned that in a children’s ride, a provider has certain duties toward
the participants. Such duties include “provid[ing] the children horseback riding
instructions,” “providing adequate headgear,” and “giving the lesson in [a]
practice corral instead of on an advanced trail ride.” Id. at 1104. We held that
the provider’s failure to carry out these duties engendered genuine issues of
material fact regarding whether it “violat[ed] a duty separate and distinct from
those [duties] embedded in the inherent risks of horseback riding.” Id. (emphasis
added). In other words, there were genuine issues of material fact regarding
whether the provider’s conduct exposed the child to risks beyond the inherent
risks associated with a bolting horse. We put it this way: “[W]hen we frame the
question with the requisite specificity, we also conclude that a reasonable jury
might conclude that [the child’s] injuries were the result of negligence that is not
characteristic of, intrinsic to, or an integral part horseback riding.” Id. at 1105.
24
Accordingly, we reversed the district court, holding that “material questions of
disputed facts remain to be decided by a jury.” Id.
***
These three horseback-riding cases underscore three key guideposts that are
embedded in the WRSA caselaw of our circuit and the Wyoming Supreme Court
that are helpful to our resolution of this appeal:
First: We inquire into the nature of the risk at “the greatest level of
specificity permitted by the factual record.” Cooperman, 214 F.3d at 1167. That
is, we seek to determine the specific risks that the consumer was exposed to in
participating in the provider’s sport or recreational opportunity.
Second: We seek to discern whether the specific risks—associated with the
consumer’s injury—fall within the ambit of risks that are inherent in the sport or
recreational opportunity. In doing so, we remain cognizant that
Some risks may occur from the choices a recreation provider
makes on behalf of the participant and from the conditions in
which the recreational opportunity is provided. Thus, atypical or
uncharacteristic risks can arise even in those specific sports the
Wyoming legislature clearly intended to exempt from liability for
inherent risks.
Dunbar, 392 F.3d at 1149; accord Roberts v. Jackson Hole Mountain Resort
Corp., No. 16-CV-24-R, 2017 WL 5247912, at *4 (D. Wyo. Jan. 19, 2017)
(unpublished). Thus, as we saw in Kovnat and Sapone, a provider may deliver the
25
opportunity in a manner that “increase[s] the inherent risks of the sport,” Creel,
287 P.3d at 739, thereby exposing the consumer to atypical, non-inherent risks.
See Kovnat, 770 F.3d at 960; Sapone, 308 F.3d at 1104.
Third: In the endeavor to discern the universe of inherent risks of a sport or
recreational opportunity—as well as those risks that fall “outside of the realm of
an inherent risk,” Cooperman, 214 F.3d at 1169, i.e., atypical risks—a critical
step may be defining with precision the opportunity at issue. As Sapone
illustrates, the unique nature of the opportunity—there, a private horseback-riding
lesson involving only young children—may impact our assessment of what risks
are properly deemed atypical. See 308 F.3d at 1104; see Dunbar, 392 F.3d at
1149, 1151–52 (concluding that “genuine issues of material fact exist[]”
concerning the inherent-risk question and noting that “what sport or activity
characterizes [the plaintiff’s] behavior is a matter of considerable dispute”). We
may find guidance in discerning the precise nature of the sport or recreational
opportunity at issue by focusing, not only on the choices of the provider, but also
the choices of the consumer. See Dunbar, 392 F.3d at 1149 (“To determine what
risk is inherent to [the plaintiff’s] activity, we must go beyond a broad
characterization and inquire into the specific circumstances of both her actions
and those of the recreation provider.”). 2
2
Dunbar involved an alpine skier—the plaintiff—who was injured
(continued...)
26
3
2
(...continued)
when she fell twelve feet into a snowboard half-pipe. 392 F.3d at 1146. At the
time of the fall, she was trying to leave a specially designated terrain park
“designed for advanced skiers and snowboarders who choose to recreate in a very
challenging risk-filled environment.” Id. The plaintiff was a “self-described
intermediate skier,” and “[t]here [was] no suggestion . . . that [she] intended to
jump any of the terrain jumps or intended to try her hand at stunts as a skier in a
snowboard half-pipe.” Id. at 1146–47. The plaintiff sued the Wyoming ski resort
for negligence. Id. The district court granted summary judgment for the resort
pursuant to the WRSA, finding that her fall was an inherent risk of alpine skiing
in the terrain part. Id. We reversed.
In doing so, we observed a key error in the district court’s analytical focus:
Although the district court emphasized the choices and conduct
of the plaintiff in determining what risks she assumed, the court
makes no distinction between the risks that are inherent to her
actual choices—to ski into the terrain park area, but not to “take”
any of the features—and risks that are inherent to choices one
would make when actually intending to ski over the specific
features.
Id. at 1151 (emphases added). We concluded that “it was error for the district
court to conclude that . . . having assessed the risks and decided not to use the
terrain features, that there is no material issue of fact concerning whether a skier
could leave without accruing those very risks.” Id. (emphasis added); see also
1151 (“[W]e conclude that the district court erred when it found that the risk of
falling twelve feet into a snowboard half-pipe was an inherent risk of [the
plaintiff’s] alpine skiing when she had stopped and observed double diamond
terrain features and had chosen not to ‘take’ those features.”). Thus, in Dunbar,
we highlighted that the inquiry into the particular opportunity at issue—and,
derivatively, the risk inherent in it—must focus, not only on the opportunities that
the provider offered, but also the particular opportunity in which the consumer
agreed to participate. See id. at 1149 (“To determine what risk is inherent to [the
plaintiff’s] activity, we must go beyond a broad characterization and inquire into
the specific circumstances of both her actions and those of the recreation
provider.” (emphasis added)).
27
Though not exclusively defining the parameters of our analysis, we find the
foregoing three guideposts illuminating. Cognizant of them, we have carefully
considered the relevant caselaw and the factual record. We conclude that Mr.
Dullmaier’s death was the result of specific risks that are inherent in the sport or
recreational opportunity in which he elected to participate—that is, a guided
horseback-riding tour of a wilderness area.
a
It is undisputed that Xanterra offered members of the public a guided
horseback-riding tour of a wilderness area, and Mr. Dullmaier elected to
participate in this tour. We thus proceed to examine the factual record with the
greatest degree of specificity possible to discern the nature of the risks that
Xanterra exposed Mr. Dullmaier to in delivering this opportunity and whether
those risks were inherent in that opportunity.
Mr. Dullmaier fell during a guided trail ride through a wilderness area of
Yellowstone National Park. Notably, unlike Sapone, Xanterra did not offer this
horseback-riding opportunity exclusively to young children; indeed, typically, the
majority of the participants of such rides were adults. See Aplt.’s App., Vol. 2, at
389 (Ms. Flynn testifying that a “full ride” consisted of twenty riders, and that
they usually had only “four to six kids”); id., Vol. 1, at 75 (requiring in
Xanterra’s acknowledgment-of-risk form that children younger than twelve be
28
accompanied by an adult and specifying that no child younger than eight could
participate at all). Therefore, the unique universe of inherent and atypical risks
that would likely be associated with a children-only sport or recreational
opportunity ordinarily would not be present here.
The entire ride took place in a wilderness area where riders ordinarily
would anticipate encountering native wildlife. See Aplt.’s App., Vol. 2, at
449–50 (Dep. of Edward W. Dabney, dated Jan. 5, 2016) (agreeing that on “this
particular trail ride, the one-hour trail ride from Roosevelt,” riders “may
encounter a number of different wildlife on this trail,” including bears, bison, and
birds). This specific ride includes a wetland that offered “a natural habitat
for . . . ducks and other waterfowl.” Id. at 449, 450; see also id. at 306 (noting
that the one-hour ride “traverses a variety of terrain and natural features including
wetlands” that are home to “birds, ducks, and wetland fowl”). It logically follows
that, by signing up for this particular trail ride, a rider would assume the inherent
risk that a wild animal—like a duck—might suddenly appear on the trail.
And if a wild animal appears, there is the inherent risk that a horse will
spook. We pointed out in Cooperman that horses can act unpredictably when
confused or frightened. See 214 F.3d at 1167 (noting that a horse might “simply
begin to gallop for no apparent reason” and concluding that this “clearly would
qualify as inherent risks of horseback riding”). Even Ms. Dullmaier’s experts
29
acknowledged this risk, testifying that a trail horse “may spook as a result of
encountering wildlife” and conceding that Xanterra had “advise[d] . . . guests that
it was a possibility that . . . they might encounter wildlife and that the horse may
react to that encounter.” Aplt.’s App., Vol. 2, at 443.
The wranglers on this ride knew this, too. Mr. Wilson testified that “horses
are prey animals so they are spooky and worried about what is around them,” id.,
at 401, while David Saddler testified that there might be “random things you just
can’t prepare for” on a ride, including when “something jump[s] out and spook[s]
the horses.” Id. at 429 (Dep. of David Saddler, dated Jan. 15, 2016). In fact, they
had seen it happen that very summer. Id., Vol. 4, at 1068 (Aff. of Sarah Soltys,
dated Jan. 29, 2016) (noting that, in the summer of 2012, at least one other rider
had been “thrown off [his horse] when a badger jumped out” onto the trail path).
When one horse spooks, there is a risk that the others will also spook.
Xanterra’s expert Wayne G. Hipsley opined that, “if one horse on the trail ride
goes on alert for a potential threat, other horses will respond in an equal manner.”
Id., Vol. 2, at 306 (Expert Opinion of Wayne G. Hipsley, dated Dec. 14, 2015).
Mr. Hipsley also noted that “[i]f the horse is not controlled by the rider the
horse’s reaction may be escalated.” Id. Ms. Dullmaier’s experts essentially
acknowledged as much. For example, one of them, Mr. Dabney, wrote that “[i]f
the horses in front spook and react . . . by jumping, raring or bucking,” it causes
30
“a chain reaction . . . down the line of horses in which the other horses become
nervous, agitated and begin reacting negatively.” Id., Vol. 1, at 154 (Expert
Opinion of Ed Dabney, dated Nov. 11, 2015).
This “chain reaction” often leads a group of horses to break into a gallop
and run to safety. As Mr. Dabney put it, horses display “the flight response of
herd type prey animals” and may “continue running toward safety” when alarmed.
Id. at 159. And another of Ms. Dullmaier’s experts, Kenneth Laughery, Jr.,
noted that “[a] horse responding to being spooked by a gait change (e.g.,
‘running’) is also a known and foreseeable event encountered often by
wranglers,” as is “[a] horse’s flight response.” Id. at 122 (Expert Opinion of
Kenneth Ronald Laughery, Jr., dated Nov. 15, 2015).
Further, it is an unremarkable consequence of these inherent risks that a
rider might fall from a spooked, runaway horse. As Ms. Flynn explained,
stopping a runaway horse is “very difficult,” since “[a] runaway horse does not
stop” when it is “terrified . . . [or] afraid of something.” Id., Vol. 2, at 395, 399.
The possibility of such falls is greater on a trail ride over varied terrain—like the
ride that Mr. Dullmaier participated in—because, in that environment, a
frightened horse might run down a steep slope, making it harder for a rider to stay
in his or her saddle. Ms. Flynn testified that, when a horse begins running
31
downhill “at a fast[] gait, it’s very hard to sit, especially if you don’t know what
you’re doing.” Id. at 391.
From this, we conclude that this particular opportunity (i.e., guided trail
ride through a wilderness area)—under the specific factual circumstances of this
case—carried at least four relevant inherent risks. Namely, there were inherent
risks that (1) wildlife, including ducks, would be present on the trail ride; (2) a
wild animal might appear suddenly, spooking the lead horse into running away;
(3) the other horses might react similarly and run with the lead horse; and (4) the
runaway horses may travel over downhill portions of the trail at a fast pace when
seeking to escape perceived danger.
b
We ask then whether Mr. Dullmaier’s injuries stemmed from such risks
inherent to the particular opportunity. We answer in the affirmative. Thus, the
district court did not err in ruling that Xanterra was insulated from possible
negligence liability under the WRSA.
As we point out above, the trail ride that Mr. Dullmaier elected to
participate in had inherent risks that quite naturally could have resulted in a
participant falling from a runaway horse spooked by wildlife. And, unfortunately,
those risks are precisely what led to Mr. Dullmaier’s fall and fatal injuries. The
ride followed a trail that wound through the Yellowstone wilderness. When the
32
riders approached the narrow bridge in Pleasant Valley—a wetlands area and
known habitat for waterfowl—a few ducks flew out from underneath the bridge.
The lead horse spooked, turned, and ran through the line of horses. This
frightened Mr. Dullmaier’s horse, who took off after the lead horse and began
running towards a hill at a full gallop. As the horse began galloping down the
other side of the hill, Mr. Dullmaier lost his grip on the saddle and fell. The risks
resulting in Mr. Dullmaier’s fall were clearly inherent in the particular sport or
recreational opportunity that he undertook. And nothing suggests that Mr.
Dullmaier’s fatal injuries stemmed from atypical risks to which Xanterra exposed
him.
c
Ms. Dullmaier’s arguments to the contrary are unavailing. She argues that
Xanterra failed to eliminate the risks that led to Mr. Dullmaier’s death; that
failure itself, she argues, introduced “non-inherent hazards” that were “substantial
factors” in Mr. Dullmaier’s death. Aplt.’s Opening Br. at 45. Specifically, she
argues that Xanterra should have (1) scared the ducks out from under the bridge
before the riders approached it, (2) provided guides who had more skill and
experience, (3) trained its guides to deal with emergency situations, (4) given
instructions on how to stop a horse in an emergency, along with providing a
33
wrangler at the back of the line to help guests in an emergency, and (6) provided
riders with different reins.
But Ms. Dullmaier does not point to anything that Xanterra did to “increase
the inherent risks” of the guided wilderness horseback ride, Creel, 287 P.3d at
739; more specifically, she does not offer proof of atypical risks to which
Xanterra exposed Mr. Dullmaier. Read fairly, the “substantial factors” Ms.
Dullmaier identifies are merely steps that Xanterra might have taken to minimize
the ride’s inherent risks. And, under the WRSA, Xanterra simply did not have
such an obligation: the statute expressly states that “provider[s]” are “not required
to eliminate, alter, or control the inherent risks” within the sport or recreational
opportunity. W YO . S TAT . A NN . § 1-1-123(b); see Kovnat, 770 F.3d at 955
(“Xanterra ‘is not required to eliminate, alter or control the inherent risks’
associated with horseback riding.” (citing W YO . S TAT . A NN . § 1-1-123(b))). As
we advised in Cooperman, “It is important to remember . . . in framing the duty
question, we are not to ask whether the recreational provider could have
controlled or eliminated the risk. . . . [W]e are simply to look at the specific facts
which surround the risk without questioning the provider’s ability to control or
eliminate those risks.” 214 F.3d at 1167 n.4. Consequently, it would be incorrect
for us to conclude that Xanterra had a duty to take the steps Ms. Dullmaier
identified.
34
Relatedly, Ms. Dullmaier argues that “[w]hether a risk can be eliminated is
a factor in determining if that risk is inherent in the sport.” Aplt.’s Br. at 44; see
also id. at 34–36 (arguing that expert testimony showed that Xanterra’s
employees “knew or should have known where the ducks were located” and
suggesting that the risks posed by the ducks were not inherent). This is incorrect.
As we made clear in Cooperman, Sapone, and Kovnat, supra, a provider’s ability
to eliminate a given risk is irrelevant to determining whether that risk is inherent
in the opportunity. Instead, pursuant to the WRSA, our inquiry focuses on
whether the specific risk at issue was inherent in the particular sport or
recreational opportunity in which the consumer participated; only when the risk is
determined to have been atypical or non-inherent do we consider whether the
provider could have “eliminate[d], alter[ed], or control[led]” the risk.” W YO .
S TAT . A NN . § 1-1-123(b). 3
3
Ms. Dullmaier’s arguments seem to be based on a misunderstanding
of our caselaw. We have previously determined that a reasonable jury could have
inferred that a provider exposed a participant in a sport or recreational
opportunity to atypical risks by not taking certain actions. See Kovnat, 770 F.3d
at 960; Sapone, 308 F.3d at 1104. The principle at work there, however, was that
in failing to act under the factually specific circumstances of those cases, the
provider may actually have “increase[d] the inherent risks of the sport,” Creel,
287 P.3d at 739—viz., we concluded that there were triable issues regarding
whether the providers’ failures to act exposed participants to atypical risks. (Of
course, in other factually specific circumstances, a provider’s affirmative acts
may have precisely the same effect.) These cases patently do not stand for the
proposition that providers may be held liable for their failures to mitigate,
ameliorate, or eliminate inherent risks of a sport or recreational
(continued...)
35
In sum, we conclude that Mr. Dullmaier’s fatal injuries stemmed from risks
that were inherent in the particular sport or recreational opportunity in which he
elected to participate. Accordingly, under Wyoming law, Xanterra had no duty to
protect against those risks. Therefore, Ms. Dullmaier’s negligence claim must
fail.
III
Ms. Dullmaier argues that the district court erred in finding that costs were
properly awarded to Xanterra. Rule 54(d)(1) provides that costs, other than
attorneys’ fees, should generally “be allowed to the prevailing party.” F ED . R.
C IV . P. 54(d)(1). We have recognized that this rule “creates a presumption that
the district court will award costs to the prevailing party.” Cantrell v. Int’l Bhd.
of Elec. Workers, AFL-CIO, Local 2010, 69 F.3d 456, 458–59 (10th Cir. 1995)
(en banc). We have also held that the “district court possesses ‘broad discretion’
in awarding costs.” In re Williams Sec. Litig.-WCG Subclass, 558 F.3d 1144,
1148 (10th Cir. 2009) (quoting U.S. Indus. v. Touche Ross & Co., 854 F.2d 1223,
1247 (10th Cir. 1988), overruled on other grounds as recognized by Anixter v.
3
(...continued)
opportunity—even if they can easily do so—because the WRSA imposes no such
duty on them. See, e.g., Cooperman, 214 F.3d at 1167 n.4 (“[W]e are simply to
look at the specific facts which surround the risk without questioning the
provider’s ability to control or eliminate those risks. And because at this stage of
the analysis we are focusing only on duty, we do not ask if the defendant was
negligent in any of its actions with regard to the plaintiff.”).
36
Home-Stake Prod. Co., 77 F.3d 1215, 1231 (10th Cir. 1996)). Accordingly, we
review costs awards only for an abuse of discretion. See Touche Ross, 854 F.2d
at 1245. A district court abuses its discretion only where it (1) commits legal
error, (2) relies on clearly erroneous factual findings, or (3) where no rational
basis exists in the evidence to support its ruling. See, e.g., Elephant Butte
Irrigation Dist. v. U.S. Dep’t of the Interior, 538 F.3d 1299, 1301 (10th Cir.
2008).
On appeal, Ms. Dullmaier offers two arguments to support her contention
that the district court’s costs award evinces an abuse of discretion: (1) the court
erred in not enforcing § 1924’s affidavit requirement as to Xanterra; and (2) the
court erred in awarding costs for depositions when they “were not necessary for
purposes of the case.” Aplt.’s Opening Br. at 57. Both arguments fail.
First, the district court did not abuse its discretion in finding that
Xanterra’s costs request complied with the applicable costs statute, 28 U.S.C.
§ 1924, as well as the District of Wyoming’s Local Rules. Section 1924 states
that
[b]efore any bill of costs is taxed, the party claiming any item of
cost or distribution shall attach thereto an affidavit, made by
himself or by his duly authorized attorney or agent having
knowledge of the facts, that such item is correct and has been
necessarily incurred in the case and the services for which fees
have been charged were actually and necessarily performed.
37
28 U.S.C. § 1924.
Particularizing this statutory mandate, the District of Wyoming’s Local
Rules require a party seeking costs to “prepare and file a bill of costs . . . on
[Administrative Office of the U.S. Courts] form 133,” (“AO form 133”) which
should “include an itemized schedule of costs incurred, documentation for all
costs claimed, and a statement that such schedule is correct and that the charges
were actually and necessarily incurred.” D. W YO . C IV . R. 54.2(a). AO form 133
requires a litigant to affirm, under penalty of perjury, that the reported costs
“were actually and necessarily performed.” Aplt.’s App., Vol. 5, at 1185.
Xanterra’s designated agent signed AO form 133 on February 26, 2016.
The district court found that “the declaration in the AO 133 form satisfies 28
U.S.C. § 1924’s [affidavit] requirement,” since the agent “attest[ed] to the
necessity of the charges.” Id. at 1229.
The district court did not abuse its discretion in coming to that conclusion.
The language of AO 133 does not materially differ from that of § 1924. And, as
the district court noted, other courts have reached the same result, finding that a
“[d]eclaration submitted by [the prevailing party] as part of the Bill of Costs
satisfied § 1924.” Ankerson v. Am. Zurich Ins. Co., No. 1:15cv108-LG-RHW,
2016 WL 927225, at * 1 (S.D. Miss. Mar. 11, 2016) (unpublished); Fitbug
38
Limited v. Fitbit, Inc., No. 13-1418 SC, 2015 WL 2251257, at *2 (N.D. Cal. May
13, 2015) (unpublished).
As for Ms. Dullmaier’s second argument regarding the depositions, under
the Local Rules, litigants may seek costs for depositions, “or portions thereof,”
that are “used in support of . . . any dispositive motion.” D. W YO . C IV . R.
54.2(a)(2)(C). Xanterra sought costs for only those depositions associated with
its summary-judgment briefing. Contrary to Ms. Dullmaier’s arguments, the
district court clearly relied in its summary-judgment ruling on Xanterra’s
deposition transcripts—specifically, in recounting the factual background in three
pages of its order, and then later by drawing from those deposition sources in its
legal analysis. And, as the district court put it, “[s]imply because the Court may
have ultimately found certain arguments presented to be irrelevant does not mean
it did not consider them in its decision.” Aplt.’s App., Vol. 5, at 1230. In light of
all of this, we conclude that the district court was within its discretion in finding
that the deposition costs were properly awarded.
IV
For the foregoing reasons, we affirm the district court’s judgment.
39