This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Dawn Marie Pike, et al.,





Connie Nesset, et al.,



Filed May 13, 2003


Harten, Judge


Freeborn County District Court

File No. C8-00-1401


Peter C. Sandberg, Dunlap & Seeger, P.A., 206 South Broadway, Suite 505, P.O. Box 549, Rochester, MN 55903-0549 (for appellants)


Phillip A. Kohl, Kevin H. Siefken, Christian & Peterson, P.A., 314 South Broadway, Albert Lea, MN 56007 (for respondents)


            Considered and decided by Halbrooks, Presiding Judge, Harten, Judge, and Forsberg, Judge.*


U N P U B L I S H E D   O P I N I O N




Appellants, defendants in a negligence action, challenge the district court’s denial of their motion for JNOV or a new trial.  Appellants argue that the district court erred in determining that they owed a duty to respondent and in instructing and submitting special-verdict questions to the jury.  Because we see no error of law or abuse of discretion, we affirm.


Appellant Dwaine Bridley owned and trained horses; appellant Connie Nesset helped him care for them.  In exchange for her services, Bridley allowed Nesset to ride the horses.  Nesset had considerable experience with horses.  She began riding when she was a child, and she studied horse management in college.

Nesset and respondent Dawn Pike were friends.  On 3 May 1995, Pike visited Nesset at her home.  When Pike arrived, Nesset told her that she needed to exercise two of Bridley’s horses.  Pike agreed to help.  After they arrived at Bridley’s stable, Nesset got the horses and asked Pike to saddle one of them.  Pike said that she would try, but she saddled the horse incorrectly.  Nesset fixed the saddle and asked Pike if she knew how to ride.  Pike replied, “I have ridden * * * about half a dozen times.”  Nesset handed Pike a riding crop.  Pike asked about the purpose of the crop, and Nesset told her it was used “in case the horse acts up.”  Pike told Nesset that she “didn’t want to ride [the horse] if [she] couldn’t control it.”  Nesset “promised [that Pike] would be okay” and told her “not to worry about it.”

After Nesset and Pike mounted the horses, they walked and trotted them for about 90 minutes.  Nesset led the way as they entered a field, walking single file.  Without warning Pike, Nesset “took off running with her horse.”  Pike’s horse “bolted,” throwing Pike to the ground, which resulted in her breaking her wrist in several places.  She had multiple surgeries over the next four years and now has only minimal use of her arm.

            Pike brought a negligence action against Nesset and Bridley.  The action was tried to a jury, which returned a special verdict finding that Nesset and Bridley were 55% at fault, that Pike was 45% at fault, and that Pike sustained approximately $766,000 in damages.  Based on the special verdict, the district court apportioned about $421,000 in damages against appellants.  Appellants moved for judgment notwithstanding the verdict (JNOV) or a new trial.  The district court denied the motion, and this appeal followed.


1.         Appellants’ Duty

            Appellants argue that the district court erred in determining that they owed a duty to Pike.  Whether a duty exists is a question of law.  Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985).

[W]henever a person is placed in such a position with regard to another that it is obvious that, if he does not use due care in his own conduct, he will cause injury to that person, the duty at once arises to exercise care commensurate with the situation in which he thus finds himself, and with which he is confronted, to avoid such danger * * * .


Depue v. Flateau, 100 Minn. 299, 303, 111 N.W. 1, 2 (1907).  The law imposes a duty of care on a defendant if the plaintiff’s injury was reasonably foreseeable.  Oswald by Thies v. Law, 445 N.W.2d 840, 842 (Minn. App. 1989), review denied (Minn. 15 Nov. 1989).

Pike’s vulnerability to injury when dealing with horses should have been obvious to Nesset, who knew of Pike’s inexperience: Pike told Nesset that she had only ridden horses a half-dozen times and that she did not want to ride a horse that she could not control.  Despite Pike’s apprehension, Nesset encouraged her to ride. 

Nesset had a corresponding duty to exercise care in her own conduct so Pike would not be injured.  At trial, two expert witnesses testified that a horse will run if the horse ahead of it begins to run.  As an experienced rider, Nesset should have known that her conduct in running her horse would cause Pike’s horse to run.  Given Pike’s inexperience, it was foreseeable that she would be thrown if the horse she was riding began to run.  We conclude that the district court did not err in determining that appellants owed Pike a duty and in denying appellants’ motion for JNOV on that basis.

Relying on Boitz v. Preblich, 405 N.W.2d 907 (Minn. App. 1987), appellants argue that Pike has the burden of showing an earlier incident when the animal misbehaved or was untrustworthy.  But appellants’ reliance on Boitz is misplaced.  Boitz holds that “[i]f proof is adequate to show that respondents were negligent, appellant may recover without a showing of the [animal’s] viciousness or of scienter.”  Id. at 911-912 (citing Ryman v. Alt, 266 N.W.2d 504, 505 (Minn. 1978) (“A person injured by a domestic animal may recover either by proving that the animal had a vicious propensity known to the animal’s keeper or by proving that the animal’s keeper was negligent without establishing dangerousness of the animal and scienter.”)).  Pike can recover for her injury based on Nesset’s negligence without demonstrating that the horse she rode had known dangerous propensities.

2.         Jury Instruction and Special Verdict Question

            Appellants argue that the district court erred in not instructing the jury or submitting a special verdict question on primary assumption of risk.

It is within the district court’s discretion to decide whether to instruct the jury on assumption of risk.  Rusciano v. State Farm Mut. Auto. Ins. Co., 445 N.W.2d 271, 273 (Minn. App. 1989).  Primary assumption of risk does not apply unless the plaintiff had knowledge of the risk, appreciated the risk, and voluntarily assumed the risk when faced with a choice of avoiding it.  Snilsberg v. Lake Washington Club, 614 N.W.2d 738, 746 (Minn. App. 2000), review denied (Minn. 17 Oct. 2000).  Moreover, primary assumption of risk is also not appropriate when the evidence demonstrates that a defendant’s conduct enlarged the inherent risk assumed by a plaintiff.  Rusciano, 445 N.W.2d at 273.

The district court found that Nesset’s conduct enlarged the risk to Pike.  The record supports that finding: Pike’s horse would not have bolted if Nesset’s horse had not begun to run.  The evidence indicates that Pike did not know or appreciate that her horse might bolt and that she did not voluntarily assume the risk of riding a running horse.  The district court did not abuse its discretion by not instructing the jury or submitting a special-verdict question on assumption of risk.

Appellants also argue that the district court erred by failing to give their proposed jury instruction.  “District courts are allowed considerable latitude in determining jury instructions.”  Russell v. Johnson, 608 N.W.2d 895, 898 (Minn. App. 2000) (citation omitted), review denied (Minn. 27 June 2000).  “Where jury instructions fairly and correctly state the applicable law, this court will not reverse the denial of a new trial.”  Id. (citation omitted).

Appellants requested a jury instruction based on a theory of common-law scienter, which would have been inapplicable to the facts presented.  Pike’s claim was based on Nesset’s negligence in running her horse, and the district court gave a standard negligence instruction that correctly stated the applicable law.  Accordingly, the district court did not abuse its discretion in denying appellants’ motion for a new trial based on the failure to instruct on common-law scienter.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.