University of Vermont AAHS

Beatty v. Alverez

California Court of Appeals
UNPUBLISHED, 2003 WL 21470302

June 26, 2003

Summary of Opinion

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.

Text of Opinion

 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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