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Plaintiff Beatty was injured when
a horse owned by the defendant Alverez that she was riding reared up and fell on
her. The trial court granted
summary judgment for the defendant on the ground of primary assumption of risk
and that she could not prove the horse had a predisposition for the conduct in
issue.
In this opinion, the Court of
Appeals agrees with that decision. There
was no evidence the defendant did anything to increase the inherent risks
associated with horseback riding that were already present.
Plaintiff Laura Beatty (Beatty) appeals from a judgment
entered after the trial court granted summary judgment to defendants Guillermo
Alvarez (Alvarez) and Donna Stewart (Stewart, collectively Defendants). Beatty
suffered serious injuries when Defendants' horse, which she was riding, reared
back and toppled over on top of her. She claims that the trial court erred when
it found that this action is barred by the doctrine of primary assumption of the
risk and the absence of any triable issue of material fact. We affirm.
FACTS AND PROCEDURAL HISTORY
Although there is no evidence in the record to support the
following facts, the parties do not dispute them. Therefore, we will rely upon
their representations to provide background information. In April 2000,
Defendants, who are in the business of buying and selling quarter horses,
purchased a horse at auction. Soon thereafter, while riding the horse on
Alvarez's property, Beatty, Stewart's sister, was seriously injured when the
horse reared and fell over on top of her.
On March 23, 2001, Beatty filed a complaint against
Defendants, alleging that they owned a dangerous horse, were negligent, and
violated Civil Code section 1714, which makes a person liable for his or her
willful or negligent acts that cause injury. She alleged that while on
Defendants' property at their request, a horse she was riding reared and fell
backward onto her. She further alleged that Defendants were experienced in
raising and selling horses and knew or should have known that the horse would
behave in such a manner. In addition, she claimed that Defendants were under a
duty to warn her of the dangerous propensity of the horse to cause injury to
persons and to supervise and manage the animal to prevent such injuries, and
failed in those duties of ordinary care. Both defendants answered, asserting
assumption of the risk as an affirmative defense.
On April 23, 2002, Defendants filed a motion for summary
judgment based upon the grounds that (1) the action is barred by the doctrine of
primary assumption of the risk, and (2) Defendants were unaware of any dangerous
propensity of the horse. At a hearing on July 9, 2002, the trial court took the
matter under submission. On July 11, 2002, it issued an order granting summary
judgment and entered judgment for Defendants. This appeal followed. Thereafter,
on September 26, 2002, the trial court issued rulings sustaining Defendants'
objection to the introduction of the declaration of Dr. Philip Pinto in
opposition to the motion for summary judgment, declining to consider Beatty's
surreply, and explaining its decision to grant summary judgment.
DISCUSSION
A. Standard of Review
The purpose of summary judgment "is to provide courts
with a mechanism to cut through the parties' pleadings in order to determine
whether, despite their allegations, trial is in fact necessary to resolve their
dispute. [Citation.]" (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 844 (Aguilar ).) Our de novo review is governed by Code of Civil
Procedure section 437c, which provides in subdivision (c) that a motion for
summary judgment may only be granted when, considering all of the evidence set
forth in the papers and all inferences reasonably deducible therefrom, it has
been demonstrated that there is no triable issue as to any material fact and the
cause of action has no merit. The pleadings govern the issue to be addressed. (City
of Morgan Hill v. Brown (1999) 71 Cal.App.4th 1114, 1121.) A defendant
moving for summary judgment bears the burden of persuasion that there is no
triable issue. This burden is met by producing evidence that demonstrates that a
cause of action has no merit because one or more of its elements cannot be
established to the degree of proof that would be required at trial, or that
there is a complete defense to it. Once that has been accomplished, the burden
shifts to the plaintiff to show, by producing evidence of specific facts, that a
triable issue of material fact exists as to the cause of action or the defense.
(Aguilar, supra, 25 Cal.4th at pp. 849‑851, 854‑855.)
B. Defendants Shifted
the Burden to Beatty to Show A Triable Issue of Material Fact
Defendants argued that Beatty's entire action against them was
barred by the doctrine of primary assumption of the risk. Primary assumption of
the risk exists in those instances where a legal conclusion is made that a
defendant has no duty to protect a plaintiff from a particular risk. (Knight
v. Jewett (1992) 3 Cal.4th 296, 308, 314‑315 (Knight
).) When the doctrine applies, a plaintiff who has suffered harm is not entitled
to recover from the defendant, whether or not the plaintiff's conduct was
reasonable. (Id. at pp. 309,
314‑ 315.) The determination whether or not a defendant has a duty to
protect a plaintiff from a particular risk of harm depends upon the nature of
the activity in which the defendant is engaged and the relationship of the
defendant and the plaintiff to that activity. (Ibid.)
Specifically, in this case, the question is whether Defendants, as owners of the
horse, had a duty to protect Beatty, a guest, from the risk that it would rear
and fall on top of her.
Subsequent to the decision in
Knight, the inquiry with respect to the existence of a duty has focused on
whether a particular risk of harm is one that is inherent in the activity
undertaken. As the Knight court
recognized, defendants generally have no legal duty to eliminate, or protect a
plaintiff against, risks inherent in an activity. (Knight, supra, 3 Cal.4th at pp. 315‑316; see also, e.g.,
Harrold v. Rolling J Ranch (1993) 19 Cal.App.4th 578, 586‑587 (Harrold
).) Applying this standard, the court in
Harrold held that a riding stable does not owe a duty of care to prevent a
rider, who rented a horse for a ride, from being thrown to the ground by that
horse when it spooked, so long as the horse was not known to be dangerous. (Harrold,
supra, 19 Cal.App.4th at pp. 587‑588.) Being thrown from a horse is an
inherent risk of riding, even on a supervised afternoon trail ride. Sudden
movements of a horse, such as bucking, rearing, biting, stumbling or spooking,
are as inherent to the activity of horseback riding as are moguls to a skier. (Ibid.;
see also Shelly v. Stepp (1998) 62
Cal.App.4th 1288, 1295, and Guido v.
Koopman (1991) 1 Cal.App.4th 837, 842.) Thus, generally the owner of a horse
has no duty to prevent a rider from being thrown, and the doctrine of primary
assumption of the risk applies.
Nevertheless, a defendant generally may not increase the risks
to a participant beyond those inherent in the activity by providing defective
equipment, facilities or related services. (Knight,
supra, 3 Cal.4th at pp. 315‑316; see also, e.g., Harrold, supra, 19 Cal.App.4th at pp. 586‑587.) Thus, a
stable operator owes a duty of due care "to warn the patrons renting a
given horse if that horse has evidenced a predisposition to behave in ways which
add to the ordinary risk of horse riding." (Id. at p. 587.) However, a horse does not exhibit dangerous
propensities when it merely behaves as a horse. (Id. at pp. 588‑589.) Beatty has alleged that Defendants knew
that this horse was dangerous and failed to warn her.
If the standard for a commercial stable operator is a duty not
to increase the risks above those inherent in the activity of horseback riding
by providing a dangerous animal or failing to warn of its dangerous propensities
(Harrold, supra, 19 Cal.App.4th at pp.
586‑587), it cannot reasonably be argued that the duty should be any
higher in this case where Beatty was not a patron, but a guest of Defendants.
Indeed, where one has not, by virtue of a commercial relationship, warranted
that the horse will be suitable for the rider's purposes, the level of duty
cannot be argued to be as high. Still, we hold that in order to have summary
judgment, Defendants must have demonstrated that they were unaware that the
horse had any abnormal and dangerous propensities to rear of which Beatty should
have been warned.
Defendants demonstrated that they had no knowledge that the
horse would rear and fall over onto the plaintiff, and therefore could not be
liable for possession of or failure to warn Beatty about any dangerous
propensities of the animal. [FN1] Stewart testified that when the horse was
purchased, she had been advised that it had been used for trail rides. She
further averred that prior to the incident in question, the horse had never
reared in her presence, and that she had no knowledge that the horse would rear.
Alvarez similarly averred that he had no knowledge that the horse would rear and
that it had never done so in his presence prior to the incident involving
Beatty. Thus, Defendants presented sufficient evidence to shift the burden to
Beatty to demonstrate a triable issue of material fact.
FN1.
Knowledge of the animal's dangerous nature is also an element of Beatty's claim
that Defendants owned or harbored a dangerous animal. (Drake v. Dean (1993) 15 Cal.App.4th 915, 921.) Thus, by
demonstrating her inability to prove this point, Defendants demonstrate both the
application of the doctrine of primary assumption of the risk and that Beatty
cannot prove her dangerous‑animal claim.
C. Beatty Failed to
Demonstrate the Existence of a Triable Issue of Material Fact
The following facts were in evidence before the trial court on
the issue of Defendants' knowledge that the horse was dangerous. When Defendants
acquired the horse, it did not want to get into the trailer and was "a
little bit stubborn." It pulled back when led forward and might have thrown
its head back. Though the horse seemed nervous, it did not try to kick the
person behind it. Once it was loaded, it calmed down for a while, but then began
to kick the trailer. Alvarez had no trouble unloading the horse.
On the day of the accident, Stewart believed that initially
there "was a little bit of a problem with the horse" which
"wasn't acting right," as if it did not want to be mounted or did not
want to be there. It did not seem happy and seemed to be the kind of horse that
had to be worked a bit before it could be ridden. Alvarez saddled it and it
backed up into a fence while he was on it. Beatty witnessed this behavior.
Alvarez rode the horse for about five minutes, during which time it kept wanting
to back up and was nearing the fence. They had to walk the horse because it was
"being an asshole." After Alvarez walked the horse and it calmed down,
Beatty asked if she could ride it. Beatty rode the horse for a time and "it
went around fine." The first time that Stewart noticed any problem with the
horse while Beatty was riding it was when she stopped to get off. That is when
it reared three times in succession, the final time falling on top of Beatty.
As we have observed, a horse does not exhibit dangerous
propensities when it merely behaves as a horse. (Harrold, supra, 19 Cal.App.4th at pp. 588‑589.) Thus, in order
to create a triable issue of material fact, it was incumbent upon Beatty to show
that the above described behavior on the part of the horse was not normal and
would lead one familiar with horses to conclude that this animal posed an
abnormal danger to a rider of Beatty's experience. There is nothing in the
record upon which one could base such a conclusion. Therefore, Beatty failed to
demonstrate the existence of a triable issue of material fact on the question of
Defendants' knowledge that the horse was dangerous such that she should not have
been allowed to ride it.
Beatty next argues that Defendants failed to present evidence
that they did not increase the risk of harm inherent in horseback riding by not
agitating the horse, and therefore did not carry their burden of proof on
summary judgment. However, it is not a defendant's burden to negate every
possible challenge to the application of an affirmative defense. Rather, once
the defendant has established the elements of the defense, the burden is upon
the plaintiff to demonstrate that the defense does not apply. (Gryczman
v. 4550 Pico Partners, Ltd. (2003) 107 Cal.App.4th 1, 6‑7.) Further,
Beatty did not allege that Defendants agitated the horse thereby causing its bad
behavior. On the contrary, she alleged that the horse acted "without
provocation of any kind." A defendant seeking summary judgment need only
respond to those issues raised in the complaint. (City
of Morgan Hill v. Brown, supra, 71 Cal.App.4th at p. 1121.)
Thus, the burden was upon Beatty to demonstrate that
Defendants agitated the horse and that such agitation increased the normal risks
inherent in horseback riding so assumption of the risk did not apply. While
rearing may be a risk inherent in horseback riding if, for example, a horse is
startled by a snake, we are not willing to go so far as to conclude that if a
third person intentionally agitates a horse causing it to rear, the risk to the
rider is one inherent in the activity. Thus, Beatty could defeat summary
judgment by showing a triable issue of fact that Defendants agitated the horse
causing it to rear. In support of her argument, Beatty cited Alvarez's testimony
that when the horse was acting up he began to walk it and also grabbed it by the
tail and turned it, or made it go around to see if it would get under control.
However, there is no evidence in the record from which it can be concluded that
such treatment would aggravate a horse so as to increase the risk inherent in
riding. Nor is there any evidence that grabbing the horse by the tail and
turning it caused it to rear up and fall over onto Beatty. Rather, the evidence
indicates that at least several minutes passed between Alvarez's grabbing the
horse's tail and its rearing up, during which time it allowed Beatty to mount
and ride it around without incident. That Alvarez grabbed the horse's tail and
turned it does not create a triable issue of material fact that Defendants
increased the risk of horseback riding so as to forestall application of the
doctrine of primary assumption of the risk.
There are also several alleged procedural errors about which
Beatty complains. The first is that the trial court recognized the existence of
triable issues of material fact as reflected in certain comments that it made
during oral argument. She asserts that the subsequent minute order and notice of
ruling issued by the court are inconsistent with its comments from the bench and
therefore the judgment must be reversed. We disagree. Until a judgment is
rendered, the trial court is entitled to disregard its prior oral pronouncements
of intended decision, even if they directly contradict the executed judgment.
(Cal. Rules of Court, rule 232(a); Ripani v. Liberty Loan Corp. (1979) 95 Cal.App.3d 603, 614;
Bigelow v. Merz (1922) 57 Cal.App. 613, 616.) So long as its oral ruling has
not been entered in the minutes as the final order, the court can file a written
order that differs from its oral ruling. (In
re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1170.) The record does not
contain any minute order purporting to make the trial court's comments at oral
argument its final decision on the matter. On the contrary, the record reflects
that the matter was taken under submission. Thus, the fact that the trial
court's written notice of ruling differed from its statements from the bench
does not merit reversal of the judgment.
In the same vein, Beatty argues that the trial court
inconsistently stated at oral argument that it would not consider the
declaration of her proposed expert, Dr. Pinto, yet then based its ruling
granting summary judgment on the sustaining of Defendants' objection to that
declaration. Initially, Beatty has misconstrued the minute order and notice of
ruling. While both documents do indicate that the trial court sustained
Defendants' objection to Dr. Pinto's declaration, it cannot be concluded from
either of them that the trial court based its ultimate ruling upon its ruling on
the objection. Further, as we have just observed, an oral statement from the
bench may be contradicted by a subsequent written ruling. (In re Marriage of Drake, supra, 53 Cal.App.4th at p. 1170.) Thus,
this argument does not support a reversal of the judgment.
Beatty also argues that the trial court was required to
consider her surreply because it was filed more than five days prior to the
continued hearing date as required by Code of Civil Procedure section 437c,
subdivision (b). However, that section refers to a reply to an opposition to a
motion for summary judgment. (Ibid.)
It does not authorize Beatty's surreply, and she has not pointed to anything
that supports the filing of such a document absent leave of the court. The trial
court did not err in refusing to consider the document.
Finally, Beatty argues that Code of Civil Procedure section
437c, subdivision (e) prevented the trial court from considering either of
Defendants' declarations as to their state of mind. She asserts that the sole
purpose of the declarations was to establish their state of mind, to wit, their
unawareness that the horse had the dangerous propensity to rear and dislodge
riders. Even were we to accept this characterization of the declarations, our
review of the record reveals that Beatty did not raise this evidentiary
objection below. "Evidentiary objections not made at the hearing shall be
deemed waived." (Code Civ. Proc., § 437c, subd. (b).) Thus, Beatty may not
now raise this objection in support of the relief that she seeks.
DISPOSITION
The judgment is affirmed. Defendants to recover their costs on
appeal.
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