Justice HECHT delivered the opinion of the Court.
The Texas Equine Activity Limitation of Liability Act
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
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.
The Act is a comprehensive limitation of liability for equine activity of all kinds.
Section 87.004, entitled "Exceptions to Limitation on Liability", states in part:
The statutory 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".
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.
We discuss first the arguments under section 87.003, then those under section 87.004(2).
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".
The Act simply cannot be fairly read to limit inherent risks to those which are unavoidably associated with equine behavior. Construed 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.
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.
Section 87.004(2) denies the immunity afforded by section 87.003 to a person who
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 exception 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. . . ."
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 ability 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
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.
Here, Lee also argues 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.").