A 2017 rodeo in Freestone County turned tragic when a barrel racer exiting the arena at full speed was struck when the out gate suddenly blew shut. She was thrown from her horse and sustained injuries that rendered her a tetraplegic. She and her husband sued the county fair association, the rodeo company hired to produce the rodeo (Murray), the pattern judge for the barrel race (Adams), and several other parties (who were eventually dismissed from the lawsuit). Plaintiffs alleged premises liability, negligence, negligent undertaking, and joint enterprise. After trial, the trial court rendered a directed verdict in favor of the defendants on the negligence, negligent undertaking, and joint enterprise claims. The only issue submitted to the jury was the premises claim against the association and Murray, accompanied by an instruction on unavoidable accident. The jury returned a verdict for the defendants. The plaintiffs appealed.
The issues before the Amarillo Court of Appeals in Vicki Allred and Charles Allred v. Freestone County Fair Association, Inc., Jason Murray d/b/a J&J Rodeo Company, and Jimmy Adams (No. 07-20-00169-CV) were primarily evidentiary. The crux of the plaintiff’s case was whether somebody owed a duty to either tie back or hold the out gate so that it would not blow shut when a rider exited the arena. The evidence showed that many other riders, including the plaintiff, had passed through the gate without incident in the two days of the event. It also showed that the gate had a rusty latch and a banner without vent cuts hanging on it. Finally, the evidence indicated that the weather “was a little breezy,” but the parties disagreed on how windy it actually was that day.
The plaintiff designated a retained expert, a lawyer with experience volunteering at his daughter’s rodeos. The expert testified that he had never seen a gate blow shut because “it is supposed to be tied back.” The trial court excluded the expert’s testimony because it found the expert unqualified and that the jury might give him “an unreasonably high level of credibility that is not founded and supported by [his] background and experience.” The expert nevertheless presented an offer of proof giving his opinion that the gate presented a dangerous condition with a duty to warn. The court of appeals agreed with the trial court that the plaintiff’s expert had not experience as a rodeo expert and based his opinion on his informal experience as a rodeo participant. Moreover, his opinions were not necessary to assist the jury “in understanding any scientific, technical, or specialized knowledge.” Consequently, the trial court did not abuse its authority in excluding the expert.
The plaintiff next presented as a non-retained expert a rider (and friend of the plaintiff) who performed in the rodeo later on the day of the accident. She testified that the gate was tied back for her race. She also testified that she could not recall ever seeing an unsecured gate or a gate without a gate man. She was not present at the accident and based her testimony on a video and inspection of the arena. The plaintiffs expected her to opine to the jury that someone was negligent in failing to secure the gate and the negligence proximately caused the plaintiff’s injuries. But she conceded that all riders sign a release stating that equine activities pose an inherent risk, she had no knowledge of premises liability issues, and no rule existed requiring gates to be tied back. The trial court allowed her to testify, but only as a person with personal knowledge of barrel racing. The court prohibited her from testifying on inherent risks or “the setup and safety of the arena,” in which she had no knowledge or training. The court of appeals again sided with the trial court on limiting her testimony.
After the plaintiffs rested on Friday, the defendant rodeo producer, Murray, advised the trial court that he wished to call another witness when the trial resumed on Monday. This witness, a rodeo judge, testified as a rebuttal witness to impeach the rider’s testimony regarding the securing of the gate. The trial court allowed the testimony over the plaintiffs’ objection even though Murray had not timely disclosed the witness. The trial court found that Murray had good cause for the failure to disclose because a party is not required to disclose the identity of rebuttal or impeaching witnesses whose testimony was not reasonably anticipated before trial (citing TRCP 192.3(d)). Since the plaintiffs never disclosed that the rider would testify that the out gate should always be tied back, Murray was caught by surprise and had good cause to offer the rodeo judge in rebuttal. The judge, who had over 40 years of experience as a judge, testified that he had judged many races involving the plaintiffs’ witness but had never tied a gate or seen one tied. He stated that gates are not tied because doing so would make it harder to shut the gate if livestock in the arena got loose and tried to exit the arena. The court of appeals agreed that this testimony was necessary to rebut the plaintiffs’ witness and found the argument that they were surprised “disingenuous.”
Finally, the plaintiffs offered evidence of wind speeds that day from the Mexia airport, about 30 miles from the rodeo arena. The defendants objected on grounds that the data was taken from a website, offered without expert testimony, irrelevant, lacking proper foundation, and likely to be misleading and confusing. The trial court excluded the data. There was other direct evidence of wind conditions, so the court of appeals ruled that even if the data were improperly excluded, the error was harmless.
The plaintiffs challenged the trial court’s directed verdict on the negligence-based claims. The court looked at this issue in terms of proximate cause: did allegedly negligent activity cause the injury or a defective condition of the premises? Based on the plaintiffs’ almost exclusive focus on the allegedly faulty gate and the defendants’ failure to eliminate an unreasonable risk of harm, the court of appeals concluded that their claims “sounded in premises liability and not in negligence and the trial court properly submitted a premises liability question to the jury.” The jury’s verdict against the plaintiffs’ on the premises liability issue was based on the same evidence as the plaintiffs’ negligence theories, so even if the trial court erred in directing a verdict on those claims (which the court of appeals said it did not), the error was harmless.
I have gone into this case in some detail because it demonstrates how a competent trial judge should conduct business. As we have said before, it cannot be easy for judges who have to make tough calls in cases with tragic facts, as this one has. At times judges might be inclined just to let the jury hear everything and sort it out later, but this judge didn’t do that. He applied the law correctly, and the court of appeals backed him up. This is what it means to have a society based on the rule of law, not the whims of partisan actors. We are prone to attack judges when we don’t agree with their rulings, even if they followed the law. What we ought to be doing is to applaud them for doing their job conscientiously and with integrity, regardless of the outcome.
