MALDONADO v. COTTER (2026)

Arlene Maldonado (“Plaintiff”) sued James and Cherie Cotter (collectively “Defendants”),  ¹ under premises liability ² for injuries she sustained on their property on February 17, 2017. A jury apportioned 50% fault to each party. Defendants appeal, alleging that (1) implied primary assumption of the risk barred Plaintiff's recovery and (2) the trial court erred in submitting a verdict director for injuries to an invitee. We affirm.

Background

Plaintiff and Defendant Cherie had been friends for some time and previously worked together. They both shared a love of horse riding and rode together on numerous occasions.

Prior to the injury, Plaintiff boarded a horse named “Two Socks” on her property in Arkansas. She had boarded Two Socks for over ten years and, during that time, became familiar with his nature and temperament. Plaintiff advised Defendant Cherie that the owners of Two Socks were interested in selling him. Defendant Cherie then discussed this potential sale with her sister, Catherine Wells (“Wells”), who was interested in purchasing Two Socks from the previous owners. Plaintiff and Defendant Cherie then facilitated the sale of Two Socks from his previous owners to Wells. In connection with this transaction, Defendant Cherie requested Plaintiff transport Two Socks from Plaintiff's farm to Defendants’ property, where the horse would thereafter be boarded. Neither Defendant Cherie nor Wells owned an operable trailer available to haul Two Socks and they otherwise would need to rent or acquire one. Once on the property, Two Socks would be available for use by Defendants’ household.

On February 18, 2017, Plaintiff arrived at Defendants’ property with Two Socks in her trailer and positioned the trailer for unloading. While preparing to unload the horse, Plaintiff observed Defendants’ two dogs, a chocolate lab and a Jack Russell terrier, running loose in the yard near the unloading and tie-up area. Plaintiff expressed concern to Defendant Cherie about the presence of the dogs and asked her to “put them up” before getting Two Socks out of the trailer. Plaintiff was concerned that Two Socks was unaccustomed to having dogs around and might stomp on them. Defendant Cherie declined that request and advised that “they'll be fine.” Plaintiff made additional requests to have the dogs restrained or removed. Defendant Cherie reassured Plaintiff that the dogs would not pose a problem. Despite her misgivings, Plaintiff unloaded Two Socks and handed him to Defendant Cherie, who tied Two Socks to a hitching post.

After Two Socks was secured to the hitching post, Defendant Cherie asked Plaintiff to stay and go riding with herself and Wells. The request was made because Wells was uneasy about the new horse and Plaintiff's familiarity with Two Socks would assist in the transition. Defendant Cherie had planned the ride before Plaintiff arrived. Plaintiff initially declined the request, explaining that she had not planned to ride, did not have appropriate riding gear, and had only come to deliver the horse. However, after further requests by Defendant Cherie, Plaintiff agreed to stay and go on the ride.

Defendant Cherie then selected a different horse, “Flicka,” for Plaintiff to ride and tied Flicka at the rear of Plaintiff's trailer. Defendant Cherie then retrieved another horse, “Misty,” which she was going to ride and tied her near the front of Plaintiff's trailer.

In preparation for the ride, Plaintiff went to the driver's door of her truck – opposite from the side where the horses were tied. While at her truck, Plaintiff heard a commotion coming from where the horses were tied to the trailer and made her way back, where she was met by Defendant Cherie. When they met, Defendant Cherie had already repositioned Misty to the back of the trailer and handed Plaintiff the lead rope for Flicka so Plaintiff could tie her near the front of the trailer. Plaintiff asked what had occurred, to which Defendant Cherie responded, “oh, nothing.”

Plaintiff again asked that the dogs be put away or restrained before she proceeded to prepare Flicka for the ride. Plaintiff was familiar with Flicka and considered her a generally calm horse, but anytime Plaintiff had been around Flicka previously, the dogs were not present. Defendant Cherie again declined to remove the dogs and assured Plaintiff that she would be fine and that the dogs would not bother the horses. Plaintiff trusted Defendant Cherie's assessment given that Flicka was Defendants’ horse and Defendant Cherie was more familiar with Flicka.

Plaintiff proceeded to prepare Flicka for the ride. While doing so, Plaintiff testified Flicka was watching the dogs as she brushed Flicka to calm her down. Flicka appeared relaxed as Plaintiff put the pad on Flicka's back. Plaintiff put a saddle on Flicka and when getting ready to put the “cinches” around her to secure the saddle, Flicka “started pulling against and tensing the rope with her legs all stretched out, pulling back.” Flicka then lunged forward and struck Plaintiff, knocking her to the ground, crushing her ankle, and causing significant injuries. Defendant Cherie did not know what caused Flicka to rear up and did not see the accident. Plaintiff testified that she believed the dogs caused Flicka to react that way.

Plaintiff presented expert testimony from Bridget Brandon (“Expert”) regarding equine behavior, equine safety, and equine liability evaluation.³ Expert testified that it was the responsibility of the person “in charge” (owner or manager generally) of an area to make sure it was a safe area to ride. She acknowledged that there is always a level of risk in working with horses and you always need to be aware of your surroundings around horses as they are reactive animals. However, “you've got to eliminate those hazards, or at least mitigate those hazards so it's not as dangerous of a situation[.]” She opined that it is never acceptable to take an action that elevates the risk of harm when dealing with horses. Expert testified to a reasonable degree of professional certainty that the area was not reasonably safe with the dogs running loose and that loose dogs around horses create a “heightened issue.” Finally, Expert testified without objection that the unsafe condition at Defendants’ farm “caused or contributed to cause” the injury to Plaintiff.

At the close of Plaintiff's evidence, Defendants filed a motion for directed verdict, which the trial court denied. Defendants rested without presenting any evidence and renewed their motion for directed verdict which was again denied.

At the instruction conference, Defendants argued Plaintiff was a licensee as any status as an invitee ended when Two Socks was delivered. The trial court disagreed, finding there was evidence that Plaintiff was an invitee and submitted a verdict director requested by Plaintiff that was based on Missouri Approved Instructions (“MAI”) 22.03, 17.02, 19.01, and 35.15. That instruction read as follows:

Instruction No. 8

In your verdict, you must assess a percentage of fault to [Defendants], whether or not [Plaintiff] was partly at fault if you believe:

First, there were two dogs allowed to run loose in the area of [Defendants’] property where horses were being saddled and as a result the area was not reasonably safe; and,

Second, [Defendant Cherie] knew or by using ordinary care could have known of this condition; and,

Third, [Defendant Cherie] failed to use ordinary care to remove the dogs from the yard, restrain them, or make the area reasonably safe; and,

Fourth, such negligence directly caused or directly contributed to cause damage to [Plaintiff].

Defendants submitted an alternative verdict director based on the duty of care owed to a licensee.

The jury found against Defendants but assessed 50% comparative fault to Plaintiff. The jury determined Plaintiff's damages were $1,000,000. The trial court entered judgment against Defendants and in favor of Plaintiff for $500,000. This appeal follows.

Point 1

Defendants’ first point alleges that the trial court erred in denying Defendants’ motion for judgment notwithstanding the verdict (“JNOV”) because Defendants owed no duty of care to Plaintiff under the doctrine of implied primary assumption of the risk. Specifically, Defendants allege that Plaintiff “knowingly and voluntarily encountered the inherent risk of harm in equine activity and preparing a horse for riding.”

Defendants properly preserved this argument in their JNOV which was denied by the trial court.

Our review of a request for judgment notwithstanding the verdict or a directed verdict is essentially the same standard as de novo review. We will only reverse a trial court's denial on a motion for JNOV or directed verdict if either the plaintiff has not made a submissible case or the defendant establishes an affirmative defense as a matter of law. A motion for directed verdict or JNOV should be granted if the defendant shows that at least one element of the plaintiff's case is not supported by the evidence. We will only reverse the jury's decision if there is a complete absence of probative fact to support the jury's conclusion. We view the evidence in the light most favorable to the jury's verdict, giving the plaintiff all reasonable inferences and disregarding all conflicting evidence and inferences.

Payne v. Fiesta Corporation, 543 S.W.3d 109, 126 (Mo. App. E.D. 2018) (internal quotations and citations omitted). Implied primary assumption of risk does not operate as an affirmative defense; rather, it establishes that the defendant owed no duty to the respondent. Coomer v. Kansas City Royals Baseball Corp., 437 S.W.3d 184, 193 (Mo. banc 2014); Payne, 543 S.W.3d at 126. “The question of whether and to what extent the defendant owes a duty to the plaintiff is always a question for the court, not the jury.” Coomer, 437 S.W.3d at 199.

The Supreme Court of Missouri set out the parameters for implied primary assumption of risk in Coomer. “When the risk arises from the circumstances (e.g., from a condition on the defendant's property or the inherent nature of the defendant's activity), ‘implied primary assumption of the risk’ completely bars recovery by a plaintiff who knowingly and voluntarily encounters that risk.” Id. at 192. “[A] person who voluntarily engages in an activity that has an inherent risk is deemed to voluntarily consent to that risk and may not then assert a defendant's liability for failing to protect them from that risk.” Becker v. Schenk, 716 S.W.3d 350, 361 (Mo. App. E.D. 2025). An inherent risk is “structural or involved in the constitution or essential character of something.” Coomer, 437 S.W.3d at 201. When a risk is determined to be “inherent” in something, it will remain so until there is a fundamental change in that thing's constitution or essential character. Id. However, a defendant still owes a duty of reasonable care not to “alter or increase such inherent risks.” Id. at 197-98; Becker, 716 S.W.3d at 361; Munoz v. Six Flags St. Louis, LLC, 670 S.W.3d 239, 244 (Mo. App. E.D. 2023); Payne, 543 S.W.3d at 127. When an inherent risk is increased by a defendant “the jury must apportion fault between the parties using comparative fault principles.” Coomer, 437 S.W.3d at 199; Payne, 543 S.W.3d at 129-30. In that instance, “the issue regarding the plaintiff's assumption of that risk and whether it was a reasonable assumption of risk, is an element of fault to be compared to the defendant's negligence by the jury.” Coomer, 437 S.W.3d at 199 (quoting Sheppard by Wilson v. Midway R-1 Sch. Dist., 904 S.W.2d 257, 263-64 (Mo. App. W.D. 1995).

The parties do not dispute that equine activities contain certain inherent risks of injury. We agree with that proposition, which is well supported in case law. See Humes v. Salerno, 351 S.W.2d 749, 750 (Mo. 1961) (describing racehorses as “spirited,” “temperamental,” and “unpredictable”); Rosales v. Benjamin Equestrian Center, LLC, 597 S.W.3d 669, 676 (Mo. App. W.D. 2019) (“A horse rearing up and falling over onto a person who is nearby is an inherent risk of equine activities.”); see generally § 537.325 RSMo (2016).⁴ Certainly, a horse rider may be injured by a horse in a myriad of ways. However, that does not end our analysis. Our focus turns to whether that inherent risk was increased by Defendants. If not, the doctrine of implied primary assumption of the risk bars recovery. If so, the principles of comparative fault apply. See Coomer, 437 S.W.3d at 199.

Defendants support their position that implied primary assumption of the risk bars recovery with references to Munoz v. Six Flags St. Louis, LLC, 670 S.W.3d 239 (Mo. App. E.D. 2023); Becker v. Schenk, 716 S.W.3d 350 (Mo. App. E.D. 2025); and Ferbet v. Hidden Valley Golf and Ski, Inc., 618 S.W.3d 596 (Mo. App. E.D. 2020). However, these cases are not dispositive of the matter before us.

Munoz involved a plaintiff who was injured when running away from a “Fright Fest” character at a Halloween-themed event. Munoz, 670 S.W.3d at 248. In that case, the Eastern District of this Court, affirming summary judgment, held that the plaintiff “cannot show that Six Flags owed a duty to prevent her injury because the risk of injury was inherent to [the plaintiff] and other patrons becoming frightened by a Fright Fest scare actor and running away.” Id. at 247. Thus, there was inherent risk. The plaintiff alleged in the alternative that any inherent risk was increased by the actors “chasing” them but crucially did not identify facts which supported an inference that the actor was actually “chasing” them. Id. at 246-47. Given there were no facts supporting the contention that an actor was “chasing” the plaintiff, Munoz is of limited value in assessing whether Defendants increased an inherent risk in the present case.

Becker involved a participant in an amateur adult ice hockey league. The defendant “slashed and body-checked” the plaintiff, causing him to fall and suffer a broken wrist. Becker, 716 S.W.3d at 355. The Eastern District affirmed summary judgment on two separate bases, finding that (1) the plaintiff expressly assumed the risk of injury with a written agreement, and (2) the injuries occurred due to an inherent risk of ice hockey and the doctrine of implied assumption of the risk also barred recovery.⁵ Id. at 361-62. The Court in Becker did not need to analyze if the defendant's actions increased the inherent risks of ice hockey. See id. at 361-62. Thus, Becker is similarly unhelpful in this instance.

Ferbet dealt with a situation where a plaintiff was injured while riding a rubber inner tube down a snow and ice-covered hill. The plaintiff's “dangling right foot engaged with a crevice in the sliding surface of the slippery slope breaking his leg in two places.” Ferbet, 618 S.W.3d at 599. Different from the present situation, the plaintiff in Ferbet signed an agreement releasing the defendant from its negligence. The trial court granted summary judgment based on the agreement. However, on appeal the Eastern District found it was “necessary to employ [defendant]’s assumption of the risk affirmative defense in addition to the release in order to resolve this case.” Id. at 603, 607. The Court in Ferbet was limited by the “paucity” of the summary judgment record. Id. at 607. The Court specifically held:

First, to the extent the crevice was merely a known and understandable risk inherent to snow tubing, then Hidden Valley owed Ferbet no duty and the release is inapplicable and irrelevant because there is no claim to release; Second, if the record had demonstrated that the crevice was so big and dangerous that it went beyond what would be deemed an inherent risk to snow tubing and instead would constitute a negligently maintained surface, then Hidden Valley would owe Ferbet a duty and in that circumstance, the release would be triggered.

Id. at 607-08. Thus, the Ferbet Court did not have to answer the question “how uneven can the surface be and still be considered an inherent risk?” due to the existence of the express waiver. See id. at 608. Ferbet's outcome could have been different without an express waiver. Therefore, Ferbet is also of limited help to this Court when deciding whether or not the Defendants increased an inherent risk.

While the facts of Coomer did not reach the issue of whether a defendant increased an inherent risk, the case discussed two examples which are particularly relevant here. The first example involved a baseball spectator injured by a foul ball which he claimed he was prevented from seeing because he was being repeatedly jostled and distracted by the team's dinosaur mascot. Coomer, 437 S.W.3d at 198 (citing Lowe v. California League of Prof'l Baseball, 56 Cal.App.4th 112, 65 Cal.Rptr.2nd 105 (1997)). While getting hit by a foul ball is an inherent risk to attending a baseball game for which implied primary assumption of the risk precludes recovery because the team owes no duty of care, a jury may hold the team liable if the negligence of the mascot altered or increased that otherwise inherent risk and that negligence causes the spectator's injuries. Id. at 198.

The second example Coomer outlines is from Sheppard by Wilson v. Midway R-1 School Dist., 904 S.W.2d 257 (Mo. App. W.D. 1995) which involved a high school long-jumper injured during a competition by a bad landing in the landing pit. Id. at 259. The Court held that even though the student cannot sue the school district for a bad landing because that is an inherent risk to long-jumping, a jury may hold the school district liable when that inherent risk is altered or increased by the defendant's negligence in preparing the landing pit. Id. at 264.

A case which did directly address whether a defendant increased or altered an inherent risk is Payne v. Fiesta Corporation, 543 S.W.3d 109 (Mo. App. E.D. 2018). In Payne, a plaintiff was injured when he fell from a “Spaceball human gyroscope ride” at a fundraising event. The ride was equipped with a harness that was locked in place with a cotter pin and secured the rider to the chair. It was controlled by an operator who manually spun a wheel which caused the rider to invert and rotate. There were no trained personnel to oversee patrons using the ride. Bystanders secured the plaintiff to the ride. The plaintiff testified he was not aware that the people helping him were bystanders. Due to improper securing of the harness, the plaintiff fell out of the ride and sustained injuries. Id. at 117. After trial, a jury returned a verdict assessing 100% of the fault to the defendant. Id. On appeal, the defendant alleged that plaintiff's claims were barred by implied primary assumption of risk. Id. at 126-27. This Court found that “the relevant question here is whether the defendant increased the risk of or caused the plaintiff's injury by its negligence.” Id. at 129. Since the risk of injury was drastically increased when the defendant failed to ensure trained individuals would operate the ride, implied primary assumption of the risk did not act as a bar to recovery. Id. The Court noted that the defendant did argue that the plaintiff was at least partially at fault for not being more aware of the risk “but that only goes to [the defendant's] comparative fault, which should be presented to the jury for resolution.” Id. Thus, the Court affirmed the judgment on that basis.

Finally, Rosales v. Benjamin Equestrian Center, LLC, 597 S.W.3d 669 (Mo. App. W.D. 2019), dealt with an increased inherent risk in the equine context. The plaintiff in Rosales attended a horse racing event and accompanied a friend into an area where racehorses were being unloaded from trailers in preparation for the event. She entered through an unmonitored gate as security personnel did not monitor the unloading area to ensure that spectators were cleared from the area. The plaintiff was injured by a horse when it reared up and fell on her. Id. at 673. A jury apportioned fault between the plaintiff (20%) and the defendant (80%). The Defendant appealed. Id. The Western District of this Court held that the “common law doctrine of implied primary assumption of risk would not operate to bar [the plaintiff's] claim of negligence.”⁶ Id. at 678. “Missouri law is replete with cases imposing a duty of care not to enhance exposure to the inherent risk of equine activity through acts or omissions of negligence.” Id. Accordingly, the Court affirmed the judgment apportioning fault.

The issue before this Court is whether Defendants’ act of leaving the dogs out with the horses increased the inherent risks of injury of equine activities. After reviewing Coomer and its progeny, we determine that Defendants’ actions in refusing to put the dogs away increased the inherent risks. There was ample evidence from which the jury could believe that the dogs contributed to the horse acting as it did. While not a complete bar to recovery, the trial court appropriately submitted the fault of Plaintiff under comparative fault. Indeed, the jury allocated 50% of the fault to Plaintiff, presumably based on the reasonableness of her actions in continuing in the activity, even after Defendant Cherie refused to secure the dogs. Accordingly, Defendants’ point 1 is denied.

Point 2

Defendants’ second point alleges the trial court erred in overruling their motion for new trial in that the verdict director used by the trial court instructed on the duty of care for an invitee. Defendants allege the trial court should have used their proffered verdict director which contained the standard of care applicable to a licensee.

Whether a jury was properly instructed is subject to de novo review. Moody v. Dynamic Fitness Mgmt., Ltd., 707 S.W.3d 610, 619 (Mo. banc 2025). “Review is conducted in the light most favorable to the instruction's submission.” Id. (quoting Williams v. Mercy Clinic Springfield Cmtys., 568 S.W.3d 396, 413 (Mo. banc 2019)). Generally, in a premises liability case the scope of a defendant's duty is a question of law for the court to resolve. Ford v. Ford Motor Co., 585 S.W.3d 317, 334 (Mo. App. W.D. 2019). However, “when the facts surrounding an entrant's status on the land are in dispute, ‘[a] party is entitled to a verdict-directing instruction predicated on his theory of the case[.]’ ” Id. (quoting Adams v. Badgett, 114 S.W.3d 432, 436 (Mo. App. E.D. 2003)).

“Whether a person entering the premises of another is an invitee or a licensee depends on the purpose for which he enters onto the premises.” Adams, 114 S.W.3d at 437. A licensee enters the premises with the permission of the possessor, but for their own purpose and interest, in no way connected with the business or other relations with the owner. Id. “In Missouri, a social guest is a licensee.” A.R.R. v. Tau Kappa Epsilon Frat., Inc., 649 S.W.3d 1, 12 (Mo. App. W.D. 2022). In contrast, an invitee is a person who enters the premises of another with the consent of the possessor for some purpose of benefit or interest to the possessor, or for the mutual benefit of the invitee and the possessor. Ford, 585 S.W.3d at 332.

The distinction between licensees and invitees is of critical import in Missouri, as the distinction controls the duty of care owed by the possessor of land. The possessor owes a licensee the duty to make safe dangers of which the possessor is aware[.] In contrast, the duties owed by a possessor to an invitee are broader. The possessor owes invitees the duty to exercise reasonable care to protect them against both known dangers and those that would be revealed by inspection.

Scholdberg v. Scholdberg, 578 S.W.3d 831, 835-36 (Mo. App. W.D. 2019) (internal quotations and citations omitted).

The trial court gave Instruction No. 8 as requested by Plaintiff, which was based on MAI 22.03, the instruction for invitees. The record, viewed in the light most favorable to the submission, shows ample evidence supporting the contention that Plaintiff was an invitee. Plaintiff and Defendant Cherie “facilitated” the sale of Two Socks from his previous owners to Wells. Defendant Cherie requested Plaintiff transport Two Socks from Plaintiff's farm to Defendants’ property. Two Socks would be boarded at Defendants’ property thereafter. Neither Defendant Cherie nor Wells had an operable trailer available to haul Two Socks and they otherwise would need to rent or acquire one. The delivery of Two Socks benefited Defendants since the horse would be available for use by their household. Things did not change after Two Socks was taken out of the trailer. Defendant Cherie asked Plaintiff to stay and go riding with herself and Wells. The request was made as Wells was uneasy about the new horse and Plaintiff's familiarity with Two Socks would assist in the transition. Thus, the evidence supported Instruction No. 8 and “[a] party is entitled to a verdict-directing instruction predicated on his theory of the case.” Ford, 585 S.W.3d at 334 (quoting Adams, 114 S.W.3d at 436). Point 2 is denied.

Conclusion

The judgment of the trial court is affirmed.⁷

FOOTNOTES

1.   Because Defendants share the same last name, we refer to Cherie Cotter individually as “Defendant Cherie” to avoid confusion. No disrespect is intended.

2.   Plaintiff initially brought a negligence claim but submitted only the premises liability claim.

3.   Expert was admitted as an expert witness without objection by Defendants.

4.   The Equine Liability Act (“ELA”) provides a limited immunity defense to equine activity sponsors when participants engaged in equine activities suffer injuries arising from the inherent risks of equine activity. Defendants correctly note they do not qualify for protection under the ELA as “equine professionals” or “equine activity sponsors.” Thus, the doctrine of implied primary assumption of risk applies to this case and not the ELA.

5.   The Court in Becker also held there was an express assumption of the risk based on a liability waiver and assumption of risk agreement. Id. at 360.

6.   In Rosales, the defendant sought protection under the ELA. This Court denied the defendant's first point finding that the ELA did not bar the plaintiff's claims as a matter of law. Point 2 of Rosales dealt with implied primary assumption of the risk. The Rosales Court found that “the common law assumption of the risk doctrine has no application here.” Id. at 678. However, because the Court also found that if implied primary assumption of the risk applied, it would not bar the claim of negligence under the facts, Rosales is instructive in this case.

7.   Plaintiff filed a motion to dismiss the appeal alleging that a complete record was not provided. Plaintiff also filed a motion for attorney fees on appeal also alleging issues with the record on appeal. Those motions are denied.

BRYAN E. NICKELL, J.

JACK A. L. GOODMAN, J. – CONCURS MATTHEW P. HAMNER, J. – CONCURS