University of Vermont AAHS

Valente v. D.W. Burhoe Construction

California Court of Appeals
UNPUBLISHED, 2003 WL 1310066
March 19, 2003

Summary of Opinion

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.

Text of Opinion

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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