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Plaintiff Valente was an exercise
rider at Hollywood Park racetrack. He
was injured when a horse he was exercising reared when a backhoe operated by
defendant company moved its arm toward the horse. He filed a lawsuit, claiming the company was negligent in
operating the backhoe in the presence of numerous horses.
The trial court granted summary judgment for the defendant and in this
opinion the Court of Appeals upholds that decision.
There is no liability when a socially-beneficial machine is properly
operated but spooks a horse. There
is no evidence here that the backhoe was not being properly operated.
Alfonso C. Valente appeals from a
judgment in favor of defendant D.W. Burhoe Construction, Inc. in his personal
injury action stemming from an accident while he was riding a horse at Hollywood
Park racetrack. He contends the trial court erred in granting defendant's motion
for summary judgment because defendant owed him a duty and breached it by
operating a backhoe at a racetrack near a horse path. We agree with defendant's
argument that it breached no duty to plaintiff and affirm.
FACTUAL AND PROCEDURAL HISTORY
Plaintiff was employed as an exercise rider for trainer Bob
Frankel from January 2000 until August 2000. Six days a week he rode six to
seven horses for Frankel between 5:00 a.m. and 10:30 a.m. at Hollywood Park Race
Track. According to plaintiff, there were signs posted in the stables and barns
prohibiting anyone other than veterinarians, blacksmiths, or security personnel
from parking or operating motor vehicles. A security person positioned at Gate 7
to the park would prohibit the entry of unauthorized motor vehicles.
On August 3, 2000, plaintiff was preparing to exercise his
third horse of the day on the training track at Hollywood Park. There was
"lots" of building work being done at the track. There had been
construction activity the day before, but it had not begun yet when he exercised
his first horse that morning. Plaintiff was aware that there was a lot of
construction equipment in the stable area. For several days before August 3,
2000, he had ridden horses past active construction work and some of the horses
became jittery.
The third horse plaintiff rode on August 3 was very calm, and
he had never had problems with it in the previous four or five times he had
exercised it. When plaintiff rode toward the track on the third horse, he could
hear the engine running on the construction equipment. Plaintiff saw a man
sitting on a piece of construction equipment.
Suddenly, without warning, the arm of a 354‑B Cat
backhoe owned and operated by defendant moved in plaintiff's direction, causing
the horse to rear and fall backwards on top of him. The backhoe was digging a
trench for piping 10 to 15 meters from plaintiff's location. There is a dispute
as to whether there was a screen or fence between plaintiff and the backhoe at
the time of the accident.
On January 2, 2001, plaintiff filed an action for personal
injuries against Churchill Downs California Company (erroneously sued as
Hollywood Park) alleging negligence and dangerous conditions. Defendant Burhoe
Construction was added by amendment to the complaint on the cause of action for
negligence.
Defendant Burhoe moved for summary judgment on the ground it
had no duty to plaintiff or that plaintiff had assumed the risk of falling as an
inherent risk of riding. Defendant Burhoe relied on Parsons v. Crown Disposal
Co. (1997) 15 Cal.4th 456 (Parsons ), in which the Supreme Court held that the
operator of a garbage truck had no duty of care to a nearby horse rider. (Id. at
p. 461.)
Plaintiff opposed the motion for summary judgment on the
ground that there were triable issues of material fact as to whether defendant
owed a duty to him and breached that duty. He distinguished Parsons on the
ground that Parsons involved "a casual horseback rider whose horse was
frightened by a socially beneficial garbage truck operating in a manner that is
regular and necessary." Plaintiff argued that Burhoe knew it was using
machinery in a place "where horses were the business" and failed to
take proper measures to protect the horseback riders at the track. Both the
motion for summary judgment and the opposition were supported by declarations,
deposition excerpts, and photographs of the track area.
The trial court granted the motion for summary judgment,
applying the principles set out in Parsons, supra, 15 Cal.4th 456. It concluded
that the moving defendant had established that there is no triable issue of
material fact that would support the existence of a duty of care to plaintiff
which had been breached. Plaintiff appeals from the ensuing judgment in favor of
defendant.
DISCUSSION
A plaintiff in an action for negligence must establish that
the defendant had a duty of care toward the plaintiff and breach of that duty. (Allabach
v. Santa Clara County Fair Assn. (1996) 46 Cal.App.4th 1007, 1011.) We agree
with the trial court and defendant that this case is controlled by the Supreme
Court's opinion in Parsons, supra, 15 Cal.4th 456, which found no duty in
similar circumstances. We begin our analysis with an examination of that
decision.
In Parsons, plaintiff was injured when thrown from the horse
he was riding on a bridle trail. The horse was frightened by loud noise caused
by a garbage truck emptying a container on a parking lot located adjacent to the
trail and behind a nearby restaurant. The Supreme Court's opinion was based on a
long line of negligence cases involving horses: "[F]or more than 150 years
courts have recognized that a defendant breaches no duty of care merely by
operating socially beneficial machinery in a manner that is regular and
necessary, even if such ordinary operation happens to frighten a nearby horse
and, as a result of the horse's reaction, some injury or damage ensues. This
long‑standing line of authority establishes that although defendant had a
duty to conduct its garbage collection activity in a prudent fashion (and to use
due care to avoid making unusual noises unnecessary to accomplish its task), it
had no duty to avoid making the regular noises that were a normal incident to
its operations merely because of the possibility that these ordinary operations
might happen to frighten a horse that was in the vicinity of its truck. Once the
scope of defendant's duty of care is properly understood, we believe it is clear
that the record in this case discloses no evidence that defendant breached its
duty of care to plaintiff and, thus, that the trial court properly entered
summary judgment in favor of defendant." (Parsons, supra, 15 Cal.4th at p.
461.)
After reviewing this jurisprudence which involved a wide
variety of mechanical equipment, the Parsons court observed: "Weighing the
social utility of these machines and devices against the likelihood that horses
might become frightened by the operation of such objects, the courts developed a
remarkably uniform rule, holding that a plaintiff whose horse 'shied' or
'spooked' and caused damage because of the noise, sight, or odor caused by the
defendant's regular and necessary conduct, cannot state a cause of action for
negligence, because the defendant in such a case has breached no duty of
care." (Parsons, supra, 15 Cal.4th at p. 466.)
The Parsons court recognized exceptions to the general rule of
nonliability in these cases: "It has been held that a defendant breaches a
duty of care if (i) the defendant conducts or uses a train, automobile, or other
device in a careless or imprudent manner, or causes noises or emissions
unnecessary to the regular operation of the machine, (ii) the defendant fails to
take reasonable protective actions after it knows that the plaintiff's horse
actually has become frightened, (iii) the defendant or its employees conduct its
machinery in an unnecessary or malicious fashion designed to cause fright, or
(iv) the defendant violates a safety statute designed to protect the class of
which the plaintiff is a member." (Parsons, supra, 15 Cal.4th at pp.
469‑470, fns. omitted.)
Plaintiff attempts to come within the second exception,
arguing that defendant failed to take reasonable protective actions. He cites
Eddy v. Stowe (1919) 43 Cal.App. 789. In Eddy, the plaintiff, an experienced
horseman, was riding a young horse he was breaking on a highway. The horse was
frightened by a passing motorcycle, began rearing and bucking, and attempted to
jump over the fence on the side of the highway. As the plaintiff attempted to
control the horse, one automobile passed, and another approached, driven by the
defendant. The defendant admitted that as he was 200 yards from the horse he
noticed that the horse was bucking and lunging in fright but nevertheless
proceeded directly toward the plaintiff, striking the horse and causing
plaintiff serious injuries. The Supreme Court in Parsons characterized Eddy as
an application of the second exception because the defendant, with knowledge of
the plaintiff's " 'perilous position,' " made no effort to slow, stop,
or otherwise take appropriate action. Under these circumstances, the defendant
breached his duty of care to the plaintiff. (Parsons, supra, 15 Cal.4th at p.
471.)
Plaintiff argues that Burhoe knew it was using machinery
"in a place of business ... where horses were the business." He notes
that Burhoe admitted using screen fences in the construction at Hollywood Park.
[FN1] Plaintiff argues that the photographs submitted as evidence established
that the accident happened in a location where no screen separated plaintiff's
horse from the machinery. He concludes: "Therefore, Burhoe had known of the
plaintiff's 'perilous position' and negligently failed to take reasonable
protective actions."
FN1. The
Supreme Court in Parsons rejected an argument that a breach of duty should be
found because the defendant in that case could have guarded against his injuries
by employing various preventative measures, like changing the hours of garbage
collection, blocking off the area of collection with cones or tape, or posting
warning signs. The Parsons court observed that courts had declined to impose
such conditions on the employment of similarly beneficial machines,
"because to do so unreasonably would impair the utility of those
devices." (Parsons, supra, 15 Cal.4th at p. 474.) The court declined to
impose such a burden on the operators of garbage trucks. (Ibid.) Like the court
in Parsons, we see no basis for imposing such conditions on construction
companies, whose work is socially beneficial.
We agree with the trial court that plaintiff failed to
establish a breach of duty under the second Parsons exception. We have reviewed
all the evidence, including photographs and a declaration by plaintiff,
submitted on the motion for summary judgment. The evidence does not clearly
depict the exact position of the horse and the backhoe at the time the accident
happened. But more fundamentally, unlike Eddy, there is no evidence that the
defendant's employee knew that plaintiff's horse was frightened by the machinery
before the arm was moved and the horse reacted. To the contrary, plaintiff
declared that the accident happened "without warning:" "The noise
from the backhoe did not make the horse I was riding jittery. I had no warning
until all of a sudden the backhoe got the dirt and then the arm moved in the
direction of where I was at with the horse. The horse then reared up and fell
backwards on top of me." Thus, plaintiff failed to show that "the
defendant fail[ed] to take reasonable protective actions after it [knew] that
the plaintiff's horse actually [had] become frightened, ..." (Parsons,
supra, 15 Cal.4th at p. 470, italics added.)
Plaintiff attempts to distinguish the activity of using a
backhoe in construction from the garbage collection in Parsons. In applying the
principles of limited duty to the facts before it, the Parsons court examined
the considerations employed by courts in determining the scope of duty.
(Parsons, supra, 15 Cal.4th at pp. 472‑473.) It observed: "[W]hen
addressing conduct on the part of a defendant that is 'deliberative, and ...
undertaken to promote a chosen goal, ... [c]hief among the factors which must be
considered is the social value of the interest which the actor is seeking to
advance.' [Citations.]" (Id. at p. 473.) Characterizing this principle as
the " 'social utility' " policy consideration, the Parsons court
concluded: "[T]he cases stand for the proposition that, as a matter of
policy, there shall be no liability for fright to a horse and consequent damages
arising therefrom when all that the plaintiff can point to is that a socially
beneficial machine or apparatus‑‑steam locomotive, streetcar,
automobile, truck, transmission wire, steamroller, etc‑‑properly was
used in the manner for which it was designed. Nothing involved in this social
utility analysis has changed to direct a different result. If anything, given
the declining relative importance of horses in a contemporary society,
defendant's position has been strengthened." (Id. at pp. 473‑474,
italics added.)
Plaintiff argues that unlike the socially beneficial machines
discussed in Parsons, "using a
backhoe at a horse race track where trainers are exercising horses but failing
to properly protect those horseback riders is a breach of their duty owed. There
in [sic ] no difference in the operation of the backhoe in the manner presented
than the auto in the Eddy case."
There are differences between the operation of the backhoe
here and the automobile in Eddy. As we have seen, in Eddy, there was undisputed
evidence that the driver of the automobile knew that the plaintiff's horse was
already frightened when the driver still had an opportunity to take evasive
action. The accident happened here without warning. Moreover, plaintiff
presented no evidence that the backhoe was not properly "used in the manner
for which it was designed," the standard identified in Parsons. (See
Parsons, supra, 15 Cal.4th at pp. 473‑474.) There is no evidence that the
backhoe was used in anything but a normal manner on the morning of the accident.
To the extent that plaintiff is arguing that the mere use of
construction equipment in a location frequented by horses was sufficient to
satisfy this standard, we disagree. Although plaintiff declared that some of the
horses he rode the day before the accident became "jittery" in the
vicinity of the construction, there was no evidence that there had been any
other incidents of horses bucking or rearing and throwing their riders in
reaction to the construction equipment. We are unwilling to declare, as a matter
of law, that any construction company doing work on a site such as a race track
or stable which is populated by horses and riders has a duty to take protective
actions before it knows that a horse has actually become frightened by its
activities. Such a rule would be contrary to the principles expressed in
Parsons.
Plaintiff also argues that his case is analogous to Breslin v.
Fredrickson (1957) 152 Cal.App.2d 780. In that case, a contractor had performed
resurfacing work on a stretch of roadway. Shortly after the work was completed,
a woman driving on the roadway moved her car toward the shoulder in response to
the position of an on‑coming vehicle. The right front wheel of her car
dropped suddenly because of a six inch drop between the road surface and the
shoulder. As a result, the driver lost control of her car, swerved back onto the
road and hit a telephone pole on the other side, killing the driver. The Breslin
court held the contractor had a duty to protect the public against the dangerous
conditions that might be encountered in the course of rightful use of the
roadway. (Id. at p. 786.) Breslin is inapposite. It preceded Parsons, and did
not arise in the situation applicable both here and in Parsons, the reaction of
a horse to machinery or other mechanical equipment.
In Parsons the Supreme Court explained that in the context of
an action for negligence, duty is " ' " 'only an expression of the sum
total of those considerations of policy which lead the law to say that the
particular plaintiff is entitled to protection.' " " ' (Parsons,
supra, 15 Cal.4th at p. 472.) Here, the Supreme Court has expressed the
controlling policy: that a defendant will not be held liable for injuries
resulting when a horse is frightened by machinery operated in the manner
intended unless one of the four exceptions identified in Parsons is established.
Plaintiff failed to raise a triable issue of material fact as to whether his
case falls within one of these exceptions. Therefore, defendant was entitled to
summary judgment. In light of this conclusion, we need not address the
alternative arguments based on assumption of the risk.
DISPOSITION
The judgment is affirmed.
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