Eriksson v. Nunnink: Lessons for Equine Professionals

by Kathy Hall

A California appellate court ruling earlier this year, Eriksson v. Nunnink, has sparked concern among equine enthusiasts over the potential liability of equine professionals for their clients’ personal injury and/or death.[1] The defendant, Nunnink, is an equine professional. This case is educational for all equine professionals because it addresses issues of professional judgment, candor with clients, the scope of risks considered “inherent” to equine activities, and the scope and effectiveness of written liability releases.

The Erikssons sued Nunnink, the US Equestrian Federation, the US Eventing Association, and other defendants following the death of their teenage daughter, Mia, in early November 2006. Mia sustained fatal injuries during the cross-country phase of the Galway Downs three-day event, which was her first two-star competition. Mia’s own horse, Kory, fell on course and crushed her.

This case has been working its way through the California courts since May 2008, and is current scheduled for trial in January 2012. At this point, Nunnink has not been found liable for any wrongdoing. Nonetheless, understanding how the California courts analyze the factual and legal issues in this case may enable equine professionals minimize the potential risk of client injuries or death, not to mention the resulting litigation.

How Did This Tragedy Happen?

The Erikssons owned a large equestrian boarding facility in California, where Nunnink gave Mia riding lessons three times a week. Nunnink coached Mia at three-day competitions, and had been a professional trainer for 25 years. In early 2006, Mrs. Eriksson signed a liability release purportedly releasing Nunnink from liability for Mia’s injury or death. One of Mia’s competitive goals for 2006 was to participate at Galway Downs.

In September, Kory hit a jump while competing in the Twin Rivers one-star event. The horse developed a “big bruise” from the impact, though it is unclear where this bruise was located. Nunnink was dissatisfied with Kory’s performance after this competition and wanted Mia to have “more mileage” prior to Galway Downs. Nunnink consequently entered Kory at Ram Tap, another one-star event, in late October.

Eriksson and Nunnink agreed that if Kory “had trouble” at Ram Tap, that competition would be “the end of the season.” At Ram Tap, Kory tripped while jumping cross-country and fell to his knees, hit his head and nose on the ground, and sustained a concussion and a hematoma and scrapes on his chest and pectoral area.[2] The event veterinarian examined Kory, and recommended anti-inflammatories, cold therapy, close monitoring for signs of head trauma, and a follow up examination with Kory’s regular veterinarian.[3] The pair withdrew from the remainder of the competition.

After Ram Tap, Nunnink told Mrs. Eriksson that Kory was “very lame” and she was going to take the horse “home with her.” Mrs. Eriksson believed the horse was lame and that Mia should not compete at Galway Downs; Mia’s competition season would be over. Kory was not schooled over fences during the week after Ram Tap. His shoes and his feed were changed, suggesting his competition season was indeed over.

Within three weeks, Mia and Kory travelled to Galway Downs. According to Mrs. Eriksson, the pair went to Galway Downs only so Mia could socialize with her friends and care for Kory. However, Mrs. Eriksson testified she was misled by “a little plot” between Mia and Nunnink. After Mia and Kory arrived at the event, Nunnink convinced Mrs. Eriksson to allow the pair to compete in the dressage phase despite Mrs. Eriksson’s concern that Kory still had a “huge wound” at this point. Kory apparently passed both of the mandatory veterinary checks – once upon arrival and again prior to the dressage phase – required under USEF and/or USEA rules. The pair then competed in dressage.

After the dressage phase, Mia called her mother and told her she would be competing in cross-country the next day. Mrs. Eriksson refused to allow it, citing her prior agreement with Nunnink that the horse would not “run any more” that season. Mrs. Eriksson testified she told Nunnink that Mia was not allowed compete the following day. However, according to Mrs. Eriksson, Nunnink repeatedly reassured her Kory had schooled well over fences earlier in the week and was ready to compete cross-country. Nunnink’s statements regarding Kory’s preparedness were apparently false.

Mrs. Eriksson testified that on the morning of the cross-country phase, Nunnink told her to “shut up” and that she should not worry; Nunnink would pull Kory from the competition if he wasn’t performing well. Nunnink again reassured Mrs. Eriksson the horse had been schooling well. Mrs. Eriksson also testified she did not tell Mia that day she wasn’t allowed to ride because Nunnink had “already made the decision.” Mrs. Eriksson also did not tell the event officials that Mia was not permitted to ride cross-country. Based upon Nunnink’s statements and expertise, Mrs. Eriksson relented, allowing Mia to ride in her last, fatal ride.

Nunnink testified the Galway Downs two-star course was “very challenging,” yet Mia and Kory had the training, capability, and experience to compete at that level. Nunnink testified no one complained that Kory was acting strangely or out of the ordinary during the pair’s warm up for cross-country, or that Kory posed a danger to Mia. Nunnink also testified that she “would have said something” if she believed Mia’s horses should not be competing.

Nunnink testified she had a “barn rule” that if one of her riders had two refusals on course, the rider must pull up. In stark contrast to Nunnink’s testimony, Mrs. Eriksson testified Nunnink had no such rule, and Nunnink instead, “had a practice of telling Mia to keep riding despite the number of refusals…”

Mia and Kory started the cross-country course after warming up. By Fence 10, the pair was unfortunately in trouble: Kory had already refused 3 times. A fourth refusal would disqualify them. Competition rules prohibited Mrs. Eriksson and Nunnink from communicating with Mia on course. Nunnink admitted that at this point she knew “things were not going well,” yet Mia and Kory continued on. Kory refused a fourth time at Fence 17; Mia and Kory continued on despite being disqualified. The fence judge at Fence 20 was directed to stop the pair. Tragically, Mia and Kory never made it that far. At Fence 19, Kory balked and tripped over the fence. Mia flew over Kory’s head and hit the ground. Kory fell, crushing Mia. She later died at the hospital from her injuries.

Nunnink testified Mia and Kory, “obviously…did something wrong,” Kory “didn’t want to go out that day,” and Mia, “kept encouraging him, and at some point he…made a mistake.”

What Happened At The Trial Court?

The Erikssons sued Nunnink for negligence and negligent infliction of emotional distress. To win, the Erikssons need to prove Nunnink:

– Nunnink owed Mia a duty of care;

– Nunnink breached the duty owed to Mia; and

– Nunnink’s action (or inaction) legally caused Mia’s death.

More specifically, the Erikssons’ claims are based on four basic arguments:

– Nunnink, as Mia’s instructor, owed Mia a duty of care not to increase her risk of death by allowing her to compete with Kory;

– Nunnink breached her duty of care to Mia by allowing her to compete with Kory when she knew, or should have known, the horse was unfit for competition because of his prior injuries and his lack of schooling prior to Galway Downs;

– Nunnink legally caused Mia’s death by allowing her to compete on a horse whose unfitness kept him from clearing Fence 19; and

– Neither the Erikssons nor Mia assumed the increased risk of competing at Galway Downs on an unfit horse because Nunnink concealed Kory’s true condition.

Nunnink tried to dismiss the Erikssons’ claims using a common procedural device called a motion for summary judgment. Such a motion can completely dispose of a case, or certain parts of a case, before the case goes all the way to trial. In essence, to defeat the Erikssons’ claims using summary judgment, Nunnink must show no reasonable juror could decide the case in the Erikssons’ favor. If the Erikssons had no chance of winning at trial, then their case should not go that far.

In her motion, Nunnink argued the following to defeat the Erikssons’ claims:

– Death is an inherent risk of equine activities;

– The Erikssons assumed the inherent risk of death associated with Mia competing at Galway Downs;

– Mrs. Eriksson signed a liability release that bars the Erikssons’ claims; and

– Nunnink did not know, and should not have known, Kory was unfit to compete because no one complained about the horse’s condition prior to taking the cross-country course at Galway Downs.

The trial court agreed with Nunnink. There was not enough evidence presented to the trial court with which a reasonable juror to find Nunnink (1) owed a duty of care to Mia, (2) breached any duty, and (3) legally caused Mia’s death. The trial court further stated California’s primary assumption of risk doctrine barred the Erikssons’ claims. The trial court did not base its ruling upon the signed liability release.

The Erikssons’ claims were dismissed and a judgment was entered in Nunnink’s favor. Then Erikssons appealed the dismissal to the California Court of Appeals.

What Happened At The Appellate Court?

The appellate court reversed the trial court’s ruling, setting the stage for the Erikssons’ claims to eventually go to trial. The appellate court’s reversal is based upon the following:

Nunnink Owed Mia A Duty of Care, and May Have Breached That Duty:

After analyzing earlier California cases involving sports-related injuries, the court concluded there were two important legal principles at play in this case:[4]

– A coach is not liable for a student’s injury if the coach is simply “pushing” and/or “challenging” a student to improve and advance; and

– A coach has a duty of ordinary care not to increase the risk of injury to a student by encouraging or allowing the student to participate or by allowing the student to use unsafe equipment or instruments

There was evidence Nunnink’s responsibilities included “the authority and responsibility to determine whether Mia’s horse was fit for competition.” Nunnink consequently owed Mia a duty of care not to increase her risk of injury or death.

To be entitled to summary judgment, Nunnink needed to produce evidence showing she owed no duty to Mia, and that she did not breach a duty. However, Nunnink failed to produce the evidence she needed. Nunnink could have accomplished what she needed to by arguing and producing evidence showing:

– Kory was fit for that competition; or

– Nunnink had no control over or responsibility as to whether Mia and Kory participated in the cross-country phase.

Nunnink also needed to show that she did not breach a duty, which could have been done by establishing she did not know, or should not have reasonably known, Kory was unfit. Nunnink’s argument that “no one complained” was not enough. Based upon Nunnink’s years of expertise, she could have known or had reason to know Kory was unfit regardless of whether anyone complained about the horse.

In the end, Nunnink failed to adequately disprove these two elements, duty and breach of the Erikssons’ claims.

Did Nunnink Legally Cause Mia’s Death?

Nunnink did not adequately refute the Erikssons’ allegation that Kory’s unfitness was “a contributing factor to Mia’s failure to clear” Fence 19, the fence at which she was fatally injured. A reasonable juror could find Kory’s condition contributed to Mia’s failure to clear Fence 19.

Did Nunnink’s Liability Release Bar the Erikssons’ Claims?

Generally, liability releases are enforceable and can bar ‘regular’ negligence claims. However, liability releases are not enforceable to bar claims alleging more egregious conduct, such as gross negligence or intentional misconduct. Here, the appellate court found Nunnink’s liability release would not bar the Erikssons’ claims to the extent they were based on Nunnink’s aggravated misconduct.

What Happens Next?

Unless it is resolved earlier, the case is scheduled to go to trial in January 2012.

Conclusion: What Lessons Can Be Learned Here?

If you are an equine professional, Eriksson v. Nunnink should prompt you to reevaluate your business practices. Could Mia’s death have been avoided? If so, how and by whom? What lessons can be learned from this case? This tragedy presents all equine professionals with an opportunity to contemplate answers to the following questions:

	– Who has the ‘final say’ over whether a client or the client’s horse competes? You or your client? Why?
	– How forthright are you with your clients about the ability, soundness, condition, and limitations of the horses they own, ride, or want to buy? Why?
	– What instructions, if any, have you given your clients about pulling up or stopping during a lesson or competition if it is not going well? Why?
	– What policies, if any, do you have to monitor and rehabilitate injured horses in your program? Are these policies any different for horses with brain injuries? Why?
	– What policies, if any, do you have to “clear” a horse to return to work or competition after an injury, including a brain injury? Why?
	– How receptive are you to hearing your clients’ concerns about their own riding ability, limitations, and fears, or those of their children? Why?
	– How receptive are you to hearing your clients’ concerns about their horses’ ability, training, soundness, condition, and limitations? Why?
	– Do your clients sign a written liability release, and do you understand its limitations? Why?
	– If a minor child rides or trains with you, do both parents sign a written liability release? Why?
	– Do you have liability insurance? Will your insurance adequately protect you if your client, or your client’s horse, is injured or killed while under your care, supervision, direction, or control?
	– Do you understand your state’s equine inherent risk law, if there is one, and its limitations?

[1] 191 Cal. App. 4^th 826, 120 Cal. Rptr. 3d 90, 11 Cal. Daily Op. Serv. 380, 2011 Daily Journal D.A.R. 468 (2011). The opinion discusses only the claims against Nunnink; the claims against the other defendants are not addressed.

[2] The court opinion does not mention whether Mia was injured in this initial fall.

[3] The court record show this follow up examination never took place, and it is unclear the extent to which the veterinarian’s other recommendations were followed.

[4] Tan v. Goddard, 13 Cal. App. 4^th 1528, 17 Cal. Rptr. 2d 89 (1993) and Galardi v. Seahorse Riding Club, 16 Cal. App. 4^th 817, 20 Cal Rptr. 2d 270 (1993).