Heather Rutecki v. CSX HOTELS, INCORPORATED, d/b/a The Greenbrier Resort

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1144
HEATHER RUTECKI,
Plaintiff - Appellant,
v.
CSX HOTELS, INCORPORATED, d/b/a The Greenbrier Resort,
Defendant - Appellee.
No. 07-1711
HEATHER RUTECKI,
Plaintiff - Appellant,
v.
CSX HOTELS, INCORPORATED, d/b/a The Greenbrier Resort,
Defendant - Appellee.
Appeals from the United States District Court for the Southern
District of West Virginia, at Beckley. Thomas E. Johnston,
District Judge. (5:05-cv-00226)
Argued: May 14, 2008 Decided: August 19, 2008

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Before MOTZ, Circuit Judge, HAMILTON, Senior Circuit Judge, and
Claude M. HILTON, Senior United States District Judge for the
Eastern District of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Roy D. Wasson, WASSON & ASSOCIATES, CHTD, Miami, Florida,
for Appellant. James Wade Turner, HUDDLESTON & BOLEN, LLP,
Huntington, West Virginia, for Appellee. ON BRIEF: W. Sam Holland,
THE FERRARO LAW FIRM, Miami, Florida, for Appellant. Curtis R. A.
Capehart, HUDDLESTON & BOLEN, LLP, Huntington, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Heather A. Rutecki brought suit against CSX Hotels, Inc.,
d/b/a The Greenbrier Resort (Greenbrier) for injuries she sustained
during a guided horseback ride at the resort. Rutecki’s complaint
asserts three causes of action. First, Rutecki argues that
Greenbrier violated the West Virginia Equestrian Responsibilities
Act (the Act), W. Va. Code § 20-4-1 et seq. Next, Rutecki argues
that Greenbrier committed gross negligence. Finally, Rutecki
argues that Greenbrier committed ordinary negligence. The district
court granted Greenbrier’s motion for summary judgment on all three
counts. We affirm.
I.
Rutecki, an attorney from Florida, planned a visit to the
Greenbrier with her mother for September 12, 2004. While making
reservations for her stay, she inquired about horseback riding
opportunities and scheduled a guided group ride. She was told by
Greenbrier staff that all necessary equipment would be provided for
her and that she did not have to bring her own newly-purchased
equipment. Rutecki had been horseback riding on multiple occasions
prior to her trip to the Greenbrier.
On September 13, Rutecki went to Kate’s Mountain Outfitters,
the Greenbrier’s outdoor activities purveyor. There was no record
of Plaintiff’s group ride reservation, so she scheduled a one-on-

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one guided trail ride. She was given a riding helmet and presented
with a prepared statement regarding West Virginia’s liability
limitations, restrictions, and responsibilities relative to
equestrian activities. Rutecki printed and signed her name on the
prepared statement, but claims she did not read it as she was told
that it was a “sign-in sheet.” The prepared statement also
contained a place for the guest to fill in his or her level of
riding experience, which Rutecki did not do.
Karl Diem, a trail guide on the Greenbrier’s equestrian staff,
rode to the riding circle on a horse named “Thunder” leading a
horse named “Trump” for Plaintiff to ride. Diem had never ridden
Thunder before. Plaintiff mounted Trump and the ride began.
Diem and Rutecki successfully completed a portion of the ride
without incident. After entering a riding trail through a wooded
hillside, Diem’s horse, Thunder, stopped on the trail and refused
to advance. Diem attempted to get Thunder moving by talking,
making a “kissing” noise, and using his heels. He then struck
Thunder with a riding crop multiple times. After being struck with
the crop, Thunder turned off the trail and attempted to go up the
adjacent hillside. Diem lost his balance and jumped off Thunder
holding the reins. During the Diem-Thunder melee, Rutecki’s horse,
Trump, spun around and ran back down the trail causing Plaintiff to
be thrown off and to sustain severe physical injuries.

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Rutecki filed suit on March 16, 2006. Prior to the end of
discovery, but after Diem and Rutecki testified at deposition,
Greenbrier filed a motion for summary judgment. While the motion
was pending but not fully briefed, Rutecki’s counsel withdrew and
Rutecki filed multiple pro se responses in opposition to the
motion. Rutecki successfully hired new counsel prior to the
district court’s final pretrial conference in December, 2006. At
the final pretrial conference, the district court inquired as to
whether Rutecki wished to conduct further discovery, and she
replied that she wanted the case to proceed to trial as scheduled,
but requested leave to make supplemental filings on Greenbrier’s
summary judgment motion. The district court permitted both parties
to make supplemental filings and ultimately entered summary
judgment in favor of Greenbrier.
II.
This Court reviews de novo the district court’s entry of
summary judgment. See Nat’l City Bank of Ind. v. Turnbaugh, 463
F.3d 325, 329 (4th Cir. 2006)(“We review a grant of summary
judgment de novo”). Summary judgment is appropriate where there is
no genuine issue as to any material fact. See Fed. R. Civ. P.
56(c). Once a motion for summary judgment is properly made and
supported, the opposing party has the burden of showing that a
genuine dispute exists. See Matsushita Elec. Indus. Co. v. Zenith

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Radio Corp., 475 U.S. 574, 586-87 (1986). A material fact in
dispute appears when its existence or non-existence could lead a
jury to different outcomes. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A genuine issue exists when there is
sufficient evidence on which a reasonable jury could return a
verdict in favor of the non-moving party. See id. Mere
speculation by the non-moving party “cannot create a genuine issue
of material fact.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.
1985); see also Ash v. United Parcel Serv., Inc., 800 F.2d 409,
411-12 (4th Cir. 1986). Summary judgment is appropriate when,
after discovery, a party has failed to make a “showing sufficient
to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When
a motion for summary judgment is made, the evidence presented must
always be taken in the light most favorable to the non-moving
party. See Smith v. Virginia Commonwealth Univ., 84 F.3d 672, 675
(4th Cir. 1996)(en banc).
A.
Rutecki first challenges the district court’s decision to
grant summary judgment on her claims under the West Virginia
Equestrian Activities Responsibility Act. The West Virginia
Equestrian Activities Responsibility Act, W. Va. Code § 20-4-1 et

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seq., states as its purpose “to define those areas of
responsibility and those affirmative acts for which the operators
of equestrian businesses shall be liable . . . and to further
define those risks which the participants expressly assume” because
“there are inherent risks in equestrian activities . . . which are
essentially impossible for the operators of equestrian businesses
to eliminate.” W. Va. Code § 20-4-1.
The Act provides four duties of horsemen relevant to this
case, requiring every horseman to:
(1) Make reasonable and prudent efforts to determine the
ability of a participant to safely engage in equestrian
activity, to determine the ability of the horse to behave
safely with the participant, and to determine the ability
of the participant to safely manage, care for and control
the particular horse involved;
(2) Make known to any participant any dangerous traits or
characteristics or any physical impairments or conditions
related to a particular horse which is involved in
equestrian activity of which the horseman knows or
through the exercise of due diligence could know; . . .
(4) In providing equipment or tack to a participant, make
reasonable and prudent efforts to inspect such equipment
or tack to assure that it is in proper working condition
and safe for use in the equestrian activity;
(5) Prepare and present to each participant or
prospective participant, for his or her inspection and
signature, a statement which clearly and concisely
explains the liability limitations, restrictions and
responsibilities set forth in this article.
W. Va. Code § 20-4-3. In its liability section, the Act provides
in relevant part that:
(a) A horseman shall be liable for injury, loss or damage
caused by failure to follow the duties set forth in

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section three of this article where the violation of duty
is causally related to the injury, loss or damage
suffered . . .
(b) A horseman shall be liable for acts or omissions
which constitute gross negligence or willful and wanton
conduct which is the proximate cause of injury to a
participant . . . .
W. Va. Code § 20-4-5. With regard to duties of participants, the
Act states that:
It is recognized that equestrian activities are hazardous
to participants, regardless of all feasible safety
measures which can be taken.
Each participant . . . expressly assumes the risk of and
legal responsibility for any injury . . . which results
from participation in an equestrian activity. Each
participant shall have the sole individual responsibility
for knowing the range of his or her own ability to
manage, care for, and control a particular horse or
perform a particular equestrian activity, and it shall be
the duty of each participant to act within the limits of
the participant’s own ability, to maintain reasonable
control of the particular horse . . . .
W. Va. Code § 20-4-4.
The district court found that there was a genuine issue of
material fact with respect to Greenbrier’s compliance with the
first duty required of horsemen under the Act. The district held
that a jury could find that Greenbrier failed to make a reasonable
effort to determine Rutecki’s riding ability generally and also
with respect to her ability to ride Trump. However, in addition to
finding that Greenbrier did not violate any of the other relevant
duties under the Act, the district court found that there was no
evidence in the record to establish that Greenbrier’s actions were

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“causally related” to Rutecki’s injuries, as required for a
horseman to be liable under the Act. We agree with the district
court.
The Act’s first duty required Greenbrier to make a reasonable
effort to determine Rutecki’s riding ability. Greenbrier presented
Rutecki with a sheet containing liability limitation language and
a space for Rutecki to fill in her level of horseback riding
experience. While Rutecki signed the liability limitation form,
she did not fill out the portion indicating her level of
experience. Consequently, a jury could find that Greenbrier did
not make a reasonable effort to determine Rutecki’s riding ability,
as Rutecki testified at deposition that Greenbrier made no follow-
up inquiry to determine her ability. In addition, the Act’s first
duty requires horsemen to match the participant’s ability with the
particular horse she will ride. Since a jury could reasonably
conclude that Greenbrier did not reasonably ascertain Rutecki’s
riding ability, a jury could also conclude that Greenbrier failed
to determine Rutecki’s ability to manage Trump.
The Act’s second duty requires horsemen to make known to a
participant any dangerous conditions of a particular horse.
Rutecki provides no evidence that either Trump or Thunder possessed
any dangerous characteristics at the time of her trail ride.
Moreover, the record shows that Trump was successfully used as a
trail horse for ten years and there is no indication that

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Greenbrier had experienced any problems with Thunder prior to
Rutecki’s injury. Consequently, no jury could find that Greenbrier
breached this duty.
The Act’s third duty requires horsemen to inspect equipment
provided to participants to insure that it is in proper working
condition. Rutecki presents no evidence that the equipment she was
provided with was defective in any way. However, she argues that
Greenbrier’s failure to provide her with additional equipment –
specifically riding boots and pants – constitutes a violation of
this duty. This argument fails because Rutecki presents no
evidence that riding boots or pants were necessary for the ride she
took or that Greenbrier’s failure to provide such equipment was
unreasonable.
The Act’s fourth duty requires horsemen to present
participants with a clear statement of the Act’s liability
limitation. A clear and concise statement of the Act’s liability
limitation was presented to and signed by Rutecki on the date of
her ride, thus satisfying Greenbrier’s obligation to comply with
this duty. Rutecki argues, however, that because she was told to
sign a “sign-in sheet” she did not realize she was being presented
with a liability limitation statement. However, the document
signed by Rutecki is titled “The Greenbrier Notice, Release, and
Indemnification,” and contains a paragraph explaining the various

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duties of horsemen and riders. Greenbrier has clearly complied
with this duty in this case.
While we conclude Greenbrier’s compliance with the Act’s first
duty is a material fact in dispute, in order to survive summary
judgment, Rutecki must also point to a disputed material fact
concerning the causation required by the Act. For Greenbrier to be
liable, its failure to ascertain Rutecki’s riding ability and her
ability to control Trump must be “causally related” to the injuries
she sustained. W. Va. Code. § 20-4-5(a). In contrast, to be
liable for gross negligence under the Act, Greenbrier’s actions
must have proximately caused the participant’s injuries. Id. at §
20-4-5(b). Consequently, the “causally related” standard requires
a degree of causation somewhat less than that required by the
familiar proximate cause standard.
While the West Virginia legislature has not explicitly defined
the “causally related” standard, a court in West Virginia has had
occasion to interpret the standard in the context of another
statute. See Hardin v. Ski Venture, 848 F. Supp. 58 (N.D. W. Va.
1994)(interpreting the West Virginia Ski Responsibility Act, W. Va.
Code § 20-3A-1 et seq., which contains the same “causally related”
standard). In Hardin, the court denied the defendant’s motion for
summary judgment holding that the plaintiff’s expert witness had
set forth sufficient evidence to create a material fact issue by
“opin[ing], by deposition and an accompanying report, that the

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1Greenbrier’s initial motion for summary judgment advances the
theory that the Act precludes liability for injuries sustained in
a fall from a horse. The district court rejected this argument and
Greenbrier does not pursue it on appeal.
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accident resulted from the making of excessively wet snow which
stuck to plaintiff’s goggles and obscured his vision. In addition,
plaintiff’s expert believes that the placement of the snow-making
machine . . . may have contributed to the accident.” Id. at 59.
Here, Rutecki has not presented any evidence that could lead
a jury to conclude that her injuries were causally related to
Greenbrier’s failure to assess her horseback riding ability.
Indeed, had Greenbrier more thoroughly investigated Rutecki’s
ability, they would have found that she had been riding on multiple
prior occasions. Without any evidence that Trump or Thunder could
be ridden only by more experienced riders, there is no evidence
that Greenbrier would have had Rutecki ride a different horse or a
different route given her level of experience. Consequently, we
agree with the district court that “[r]egardless of what
[Greenbrier] may or may not have done, the intervening event of the
inexplicable behavior of the two horses appears to be the cause of
this accident.”
Rutecki argues that the district court erred in granting
summary judgment based on a lack of evidence of causation because
Greenbrier did not move for summary judgment on causation grounds.1
See John Deere Co. v. American Nat. Bank, 809 F.2d 1190 (5th Cir.

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1987)(reversing summary judgment where, without adequate notice to
the plaintiff, the district court granted defendant’s motion on
grounds not urged by defendant). However, “district courts are
widely acknowledged to possess the power to enter summary judgments
sua sponte, so long as the losing party was on notice that she had
to come forward with all of her evidence.” Hughes v. Bedsole, 48
F.3d 1376, 1379 (4th Cir. 1995)(quoting Celotex, 477 U.S. at 326).
The record indicates that Rutecki received notice that
causation was a live issue on summary judgment. First, Greenbrier
moved for summary judgment on Rutecki’s entire complaint, and
success on the merits of Rutecki’s claim under the Act would
require proof of causation. Second, in a supplemental opposition
brief, Rutecki specifically argued that her injuries were caused by
Greenbrier’s actions and referenced evidence in the record in an
attempt to highlight a material fact in dispute. Third, in its
response to Rutecki’s supplemental finding, Greenbrier explicitly
argued that its actions had not caused Rutecki’s injuries.
Consequently, it is clear that Rutecki had notice that causation
was an issue the district court would consider on defendant’s
motion for summary judgment.
B.
West Virginia law “recognizes a distinction between
negligence, including gross negligence and wilful [sic], wanton,

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and reckless misconduct.” Mandolidis v. Elkins Indus., 246 S.E.2d
907, 913 (W. Va. 1970). While the West Virginia Supreme Court of
Appeals has never provided its own definition of gross negligence,
it has interpreted Virginia law to define gross negligence as the
“degree of negligence which shows an utter disregard of prudence
amounting to complete neglect of the safety of another.” Dodrill
v. Young, 102 S.E.2d 724, 730 (W. Va. 1958). Virginia courts have
further defined gross negligence as “an utter disregard of
prudence, amounting to complete neglect of the safety of another,
such as to be shocking to reasonable men,” Finney v. Finney, 125
S.E.2d 191, 193 (Va. 1962), and the “absence of slight diligence,
or the want of even scant care.” Colby v. Boyden, 400 S.E.2d 184,
189 (Va. 1991)(internal quotation omitted).
We agree with the district court that Rutecki has produced “no
affidavits, no deposition testimony, and no expert opinion that Mr.
Diem’s conduct even strayed from what was reasonable under the
circumstances, let alone to such a degree as to show an utter
disregard for prudence.” The only evidence Rutecki points to is
her own deposition testimony describing Diem’s struggle with
Thunder prior to her injury. No reasonable juror could conclude
from this testimony that Diem’s conduct was without prudence to the
point of being shocking. Moreover there is no evidence in the
record to suggest that Greenbrier’s actions were the direct or
proximate cause of Rutecki’s injuries.

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2In No. 07-1711, the Court affirms the district court’s award
of costs.
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C.
We agree with the district court that the West Virginia
Equestrian Activities Responsibility Act displaces actions for
ordinary negligence. The Act states that “there are inherent risks
in equestrian activities . . . which are essentially impossible for
the operators of equestrian businesses to eliminate.” W. Va. Code
§ 20-4-1. To permit an action for ordinary negligence against a
horseman operating under the Act would contravene its purpose.
III.
For the foregoing reasons, the judgment of the district court
is affirmed. 2
AFFIRMED

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