Dullmaier v. Xanterra Parks & Resorts
883 F.3d 1278
10th Cir.2018Background
- Xanterra offered one-hour guided horseback trail rides in Yellowstone; riders signed acknowledgment-of-risk forms noting horses can act unpredictably.
- On July 30, 2012, ducks flushed near a narrow bridge; the lead horse spooked, bolted, threw its rider, and ran through the line, triggering a chain reaction among horses.
- Karl‑Heinz Dullmaier, riding near the back on a horse named Duke, was carried downhill at a gallop, fell, was severely injured, and later died.
- Therese Dullmaier sued Xanterra in Wyoming state court for negligent misrepresentation, nondisclosure, negligent supervision/training, and negligence; Xanterra removed and moved for summary judgment.
- The district court granted summary judgment for Xanterra under the Wyoming Recreation Safety Act (WRSA), concluding the risks were inherent; it also awarded costs to Xanterra.
- On appeal the Tenth Circuit reviewed de novo, applying Wyoming substantive law and WRSA standards to determine whether the injuries arose from inherent risks.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Negligent misrepresentation (Restatement §552) | Dullmaier says Xanterra’s representations that horses were trail-broke and guides nearby induced reliance and caused harm. | Xanterra argues §552 requires business/commercial guidance; the ride was recreational, not a commercial-guidance context. | Affirmed dismissal — Wyoming applies §552; no commercial/business-purpose representation here. |
| Negligent nondisclosure | Dullmaier contends Xanterra failed to disclose risks and ensure awareness. | Xanterra argues Wyoming does not recognize negligent nondisclosure as a tort. | Dismissed — Wyoming law does not recognize negligent nondisclosure. |
| Negligence under WRSA (duty/inherent risk) | Dullmaier: Xanterra’s alleged failures (not flushing ducks, staffing, training, instructions, reins) created non-inherent/atypical risks. | Xanterra: WRSA bars duty to eliminate inherent risks; spooking by wildlife, chain reaction, runaways, downhill gallop are inherent to guided wilderness trail rides. | Held for Xanterra — the specific causes (wildlife flushing, horse spooking, chain reaction, downhill gallop and rider falling) are inherent risks of that guided wilderness ride, so no duty under WRSA. |
| Costs award (28 U.S.C. §1924, depositions) | Dullmaier: Xanterra’s bill failed §1924 affidavit requirement; some deposition costs were unnecessary. | Xanterra: AO Form 133 declaration satisfied §1924; depositions were used in summary-judgment briefing. | Affirmed — district court did not abuse discretion: AO Form 133 sufficed and deposition costs were properly awarded. |
Key Cases Cited
- Cooperman v. David, 214 F.3d 1162 (10th Cir. 2000) (inherent-risk analysis requires identification of specific causal risks at greatest factual specificity)
- Sapone v. Grand Targhee, 308 F.3d 1096 (10th Cir. 2002) (children’s lesson context can raise triable atypical-risk issues distinct from adult trail rides)
- Dunbar v. Jackson Hole Mountain Resort Corp., 392 F.3d 1145 (10th Cir. 2004) (inquiry must consider specific activity chosen by participant and provider’s conduct)
- Kovnat v. Xanterra Parks & Resorts, 770 F.3d 949 (10th Cir. 2014) (reaffirmed Cooperman; cinch issues may be inherent but uneven stirrups could present atypical risk for jury)