University of Vermont AAHS

Jorst v. D’Ambrosio Brothers

 

U.S. District Court, N.D. California
2001 WL 969039
August 13, 2001

 

Summary of Opinion

Plaintiff Jorst sued the defendant stables for an injury suffered by the nine-year-old plaintiff while being taught a lesson by an employee of defendant. She was injured when her leg caught of some PVC pipe that had been attached to the arena wall, causing her to become unseated. Plaintiff’s mother had signed a release from liability, which the defendants claimed means they should win on a motion for summary judgment.

In this opinion, the trial court denies the motion for summary judgment. The release of liability form does not clearly release the defendant from liability based on a defect in the premises, which may have arguably caused the injury. Therefore, although the mother signed the release, it did not excuse liability for this injury.

In addition, the boarding contract required that any lawsuit must be brought within six months of the injury, which was not done here, but that limitation did not apply because the boarding contract provided it was not valid until signed by the stables manager, and it never was. So, the trial court refused to grant the motion for summary judgement in favor of the defendants.

 

Text of Opinion


Now before the Court are the motions for summary judgment by the defendants D'Ambrosio Brothers Investment Company and Frank D'Ambrosio and by the defendant Lee Webster. Having carefully considered the parties' papers, and with the benefit of oral argument on August 10, 2001, the defendants' motions are both DENIED.

BACKGROUND

On September 26, 1999, the plaintiffs Christine Jorst and her mother Charlotte Jorst brought their horse to a ranch in Napa County known as the Rapp Ranch ("the Ranch") owned by the defendants D'Ambrosio Brothers Investment Company and Frank D'Ambrosio (collectively, "D'Ambrosio"). On that day, Charlotte received and executed a packet with nine pages of documents.

The sixth page of the packet contained a document entitled "Rapp Ranch Release of Liability." The person who executes the document acknowledges that "horseback riding and related activities is a sport which is inherently dangerous and carries with it risks of injury and damage to not only myself, my horse, but others as well." Morris Decl., June 8, 2001, Ex. B ("Release"),

The document releases and holds harmless the Ranch and its employees "for any injuries which I, my horse, or other property suffers as a results [sic] of others who are also participating in horseback riding activities at the Rapp Ranch." Id. 1. The Release also indicates that the signatory releases the Ranch and D'Ambrosio "from all liability for any act of negligence or want of ordinary care on the part of Rapp Ranch" or its employees. Id. 2. The remaining paragraphs of the Release contain similar language waiving any rights under California Civil Code section 1542, indemnifying and holding harmless the Ranch for all claims--including court costs and attorneys' fees-arising from a lawsuit brought for the signatory's benefit, and disclaiming liability for a variety of damages, including injury to a person. See id. 3-5. The person executing the Release attests, "I acknowledge that I have read this Release of Liability and know and understand its contents." Id. 6. Charlotte signed the document below that acknowledgment.

The Release also contains a section noting in all capital letters that "MINORS MUST HAVE THE FOLLOWING LIABILITY SIGNED BY PARENT OR LEGAL GUARDIAN," id. 7, and that the undersigned parent "in consideration of my minors [sic] participation in horseback riding and related activities, agree that the terms and conditions of this Release of Liability shall be binding upon us and our minor child as to damage or injury to my minor, their horse, and property arising out of their participation in horseback riding and related activities." Id. 8. That portion of the Release contains another acknowledgment that the signatory has read the Release and has understood its contents. See id. 9. Charlotte signed the Release again under that acknowledgment and dated the Release September 26, 1999.

Another document in the packet, entitled "Rapp Ranch Boarding Contract," contains additional language affecting the Jorsts' claim. See Morris Decl., Ex. C ("Boarding Contract"). The Boarding Contract, which Charlotte also executed on September 26, incorporates the Release of Liability. See id. 10. The document also provides:

In the event, that any cause of action in tort, contract, or otherwise, which arises out of this agreement, the Owner or Owner's parent or guardian shall have no more than Six (6) months from the date any said cause of action or claim arises to proceed with their claim or causes of action. This paragraph is intended to limit any and all statutes of limitation arising pursuant to California law.

Id. 12. Finally, the Boarding Contract indicates that the contract is binding on both parties--including the horse owner's parent or guardian if the owner is a minor--when both parties sign the contract. See id. 13.

In her deposition, Charlotte indicated that she did not read the papers before signing them. She concedes that she did not ask for an explanation as to the contents of the documents, nor did she request more time to read the documents before signing them. However, she also claims that she was hurried by the Ranch employee who instructed her to fill out the papers and that the employee told her she would not be able to board her horse or ride at the Ranch unless she signed them. Charlotte made several mistakes when filling out the documents, including dating one document with the wrong month and incorrectly listing the height of her horse on another. Charlotte is a native of Denmark who has lived in the United States for approximately thirteen years. She began learning English in the fifth grade and claims to be comfortable with her ability to read and understand English on a daily basis.

On October 5, Christine, who was nine years old at the time, was receiving riding instructions in the Ranch's indoor arena from Ms. Lee Webster, an independent contractor hired by the Ranch. The Ranch had used twenty-foot lengths of PVC pipe for an event several weeks before and had stored the pipe by attaching it to the walls of the arena. Christine was injured when her left foot caught in the PVC pipe, causing her horse to throw her against the arena wall and to the ground. The Jorsts then filed the present suit alleging negligence on the part of D'Ambrosio and Webster in failing to remove the pipe and in failing to adequately supervise Christine during the lesson.

DISCUSSION

D'Ambrosio and Webster have each separately moved for summary judgment on a variety of grounds, including that: (1) the plaintiffs' claim is barred by the Jorsts' express assumption of risk; (2) the plaintiffs' claim is barred by the primary assumption of risk doctrine; (3) the plaintiffs' claim is time-barred; and (4) Webster cannot be liable under a premises liability theory.

I. STANDARD FOR SUMMARY JUDGMENT

Summary judgment is appropriate when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A fact is "material" if the fact may affect the outcome of the case. See id. at 248.

"In considering a motion for summary judgment, the court may not weigh the evidence or make credibility determinations, and is required to draw all inferences in a light most favorable to the non-moving party." Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir.1997). A principal purpose of the summary judgment procedure is to identify and dispose of factually unsupported claims. See Celotex Corp. v. Cattrett, 477 U.S. 317, 323-24 (1986).

The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery, and affidavits which demonstrate the absence of a genuine issue of material fact. See id. at 323. Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. See id. Once the moving party meets this initial burden, the non-moving party must go beyond the pleadings and by its own evidence "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The non-moving party must "identify with reasonable particularity the evidence that precludes summary judgment." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.1996) (quoting Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir.1995), and noting that it is not a district court's task to "scour the record in search of a genuine issue of triable fact"). If the non-moving party fails to make this showing, the moving party is entitled to judgment as a matter of law. See Celotex, 477 U.S. at 323.

II. WHETHER THE PLAINTIFFS' CLAIM IS BARRED BY THEIR ASSUMPTION OF RISK

The defendants contend that Christine assumed the risk of riding her horse in the indoor arena and thus is completely barred from recovering from the defendants. Both D'Ambrosio and Webster contend that the Jorsts' claim is barred by their express assumption of risk in the Release, and Webster also argues that the plaintiffs' claim is barred by the primary assumption of risk doctrine.

A. Express Assumption of Risk

Both D'Ambrosio and Webster contend that the Jorsts' claim is barred by their express assumption of risk in the Release. When a plaintiff expressly assumes the risk of an activity by signing a release form, the plaintiff has relieved the defendant of its duty of care and cannot sue the defendant for negligent conduct. See Madison v. Superior Court, 203 Cal.App.3d 589, 597 (1988) (citing Prosser & Keeton, Torts 68, at 480-81 (5th ed.1984)); BAJI No. 4.30 (8th ed.1994) (noting that a plaintiff may not recover damages where a plaintiff has "expressly assumed the risk of such injury by specifically agreeing with the defendant that plaintiff would not hold the defendant responsible if an injury should be caused by the defendant's negligence"). However, for a release to be enforceable, California courts have identified three prerequisites. First, the release "must be clear, unambiguous and explicit in expressing the intent of the parties." Madison, 203 Cal.App.3d at 598; see id. at 597 (noting that a release is enforceable if it "constitutes a clear and unequivocal waiver with specific reference to a defendant's negligence"). Second, "the act of negligence, which results in injury to the releasor, [must] be reasonably related to the object or purpose for which the release is given." Id. at 601. Third, the release must not be contrary to public policy. See id. at 598-99. Because the parties do not seriously contend that the Release is contrary to public policy, the Court will focus on whether the Release was clear in expressing the intent of the parties and whether D'Ambrosio's act of negligence was reasonably related to the object for which the Release was provided.

First, the Release must have been clear and unambiguous in expressing the intent of the parties. "A valid release must be simple enough for a layperson to understand and additionally give notice of its import." Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 1566 (1990). The release must be easily readable, with the operative language placed in a position that is readily noticeable and distinguishable from the surrounding text. See Leon v. Family Fitness Ctr. (# 107), Inc., 61 Cal.App. 4th 1227, 1232 (1998) ("In other words, a release must not be buried in a lengthy document, hidden among other verbiage, or so encumbered with other provisions as to be difficult to find."). Whether the release language is sufficiently conspicuous depends on the size of the print, the form of the document, and the location of the release language within the surrounding document. See id. The use of specific language, such as the term "negligence," is "not required to validate an exculpatory clause." Sanchez v. Bally's Total Fitness Corp., 68 Cal.App. 4th 62, 67 (1998). Moreover, a defendant need not outline every possible specific act of negligence in the release. See Madison, 203 Cal.App.3d at 601; see also Hohe, 224 Cal.App.3d at 1566 ("A drafter of such a release faces two difficult choices. His Scylla is the sin of oversimplification and his Charybdis a whirlpool of convoluted language which purports to give notice of everything but as a practical matter buries its message in minutiae."). Ultimately, whether an express assumption of risk is sufficiently clear and unambiguous to be enforced is a question of law, not of fact. See Madison, 203 Cal.App.3d at 598.

Here, the Release is clear and unambiguous to the extent that it disclaims liability for injuries related to horseback riding. It is obvious that the Jorsts could not sue the Ranch if Christine fell off her horse merely because the horse stumbled, reared, or suddenly accelerated. It is also manifest that Christine could not pursue a claim if she had fallen when her horse collided with a foreseeable object such as a branch or another horse. Moreover, the Release makes it apparent that Christine could not sue the Ranch if her horse was injured while she was riding.

However, the Release does not clearly express an intent to exculpate the Ranch for its negligent maintenance of its premises. At best, the Release includes a general release from any act of negligence or want of ordinary care, but that does not sufficiently notify a Ranch customer that the Ranch cannot be held responsible if it increases the danger of riding by operating an unsafe facility. A layperson reading the Release would recognize that he or she could not sue for injuries resulting from horseback riding, but he or she would not presume that the Ranch could fail to maintain its facilities in a safe condition. Courts must strictly construe documents waiving liability on the part of the drafter. See Saenz v. Whitewater Voyages, Inc., 226 Cal.App.3d 758, 764 (1990). The Court recognizes, of course, that a drafter of a release cannot be expected to include every type of risk imaginable in its release, but from the Ranch's perspective, the negligent maintenance of the Ranch's premises is one of the more likely sources of injury to the Ranch's customers. The Ranch's failure to include it in the Release renders the document unclear and ambiguous with respect to whether the Ranch intended to disclaim liability for negligent operation of its facilities. As a result, the Release is unenforceable, and D'Ambrosio's motion for summary judgment on the basis of the Jorsts' express assumption of risk is DENIED.

Even if the Release was clear and unambiguous regarding premises liability, the plaintiffs' injuries must have been reasonably related to the purpose for which the Release was given. A plaintiff who has executed an express release need not have specific knowledge of the particular risk that led to his injury. See id. at 766 (noting that knowledge of a particular risk "is not necessary where there is an express agreement to assume all risks of a particular situation, whether known or unknown to the releasor"); Madison, 203 Cal.App.3d at 601 & n.8. However, the risks of the particular act of negligence which caused his injuries must have been reasonably foreseeable by him so as to have been fairly encompassed by the agreement. See Madison, 203 Cal.App.3d at 600; Leon, 61 Cal.App. 4th at 1235. In other words, a court must employ an objective standard--whether a reasonable person in the plaintiff's position could have foreseen the particular act of negligence which caused his injuries--rather than a subjective standard which inquires into what a particular plaintiff knew about the risk that caused his injury.

Here, a Ranch customer who signed the release could have easily foreseen that the Release was designed to exculpate the Ranch for injuries normally associated with horseback riding such as a fall caused by a horse stumbling or brushing against a foreseeable object. If the customer were injured in such a foreseeable fashion, his or her injuries would be reasonably related to the purpose for which the Release was given. However, the risk that the Ranch would negligently maintain its premises is not one that is reasonably related to the purpose for which the Release was given. A Ranch customer signs the Release to be able to ride a horse. In executing the Release, the customer recognizes the inherent risks of horseback riding and releases the Ranch from those risks so that the Ranch is not forced to bear the costs of injuries caused by those inherent risks. The customer does not acknowledge the additional risk created when the Ranch maintains its premises negligently, and he or she cannot reasonably foresee injuries caused by the Ranch's facilities. For instance, if the ceiling of a barn collapsed and injured several of the Ranch's customers, some of whom were riding at the time and some who were not, one would not contend that the reason for which the customers signed the Release was implicated by the riders' injuries but not the non-riders' injuries. Similarly, if the Ranch maintained its trails in a particularly unsafe manner, a rider who was injured could not have reasonably foreseen that additional risk. Thus, the Jorsts' injuries were not reasonably related to the purpose for which they signed the Release. Christine was not injured as part of the inherent risk of horseback riding; she was injured in an unforeseeable, unrelated way when the Ranch's allegedly negligent maintenance of the indoor arena caused her to fall.

Accordingly, D'Ambrosio's motion for summary judgment on the ground that the Jorsts expressly assumed the risk of injury to Christine must be DENIED. Similarly, because the Court concludes that the Release is unenforceable, the Court need not consider Webster's contention that the Release applies to her as an assignee of D'Ambrosio or an intended beneficiary of the Release, and her motion for summary judgment on that basis is DENIED as well.

B. Primary Assumption of Risk

Under the doctrine of primary assumption of risk, a plaintiff is completely barred from recovering from a defendant where the defendant owes the plaintiff no duty to protect the plaintiff from a particular risk of harm. See Knight v. Jewell, 3 Cal.4th 296, 308, 310, 314-15 (1992). If the defendant does owe a plaintiff a duty of care with respect to a particular risk, however, then the doctrine of secondary assumption of risk applies, and the defendant is not entirely relieved of liability for an injury proximately caused by the defendant's breach of that duty; instead, the plaintiff's recovery is reduced in proportion to the extent the plaintiff knowingly encountered that risk. See id. at 309; see also Glared v. Seahorse Riding Club, 16 Cal.App. 4th 817, 823 (1993) (noting that a trier of fact must apportion the loss resulting from the plaintiff's injury when the defendant breached a duty of care and the secondary assumption of risk doctrine applies); Tan v. Gadded, 13 Cal.App. 4th 1528, 1532 (1993) (noting that the distinction between primary and secondary assumption of risk cases is whether the defendant owes a duty of care to the plaintiff).

To determine whether a defendant owes a plaintiff a duty of care to protect the plaintiff from a particular risk of harm, a court must evaluate "the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport." Knight, 3 Cal.4th at 309. A court should also consider: (1) the foreseeability of harm to the plaintiff; (2) the degree of certainty that the plaintiff suffered injury; (3) the closeness of the connection between the defendant's conduct and the injury suffered; (4) the moral blame attached to the defendant's conduct; (5) the policy of preventing future harm; (6) the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach; and (7) the availability, cost, and prevalence of insurance for the risk involved. See Parsons v. Crown Disposal Co., 15 Cal.4th 456, 473 (1997) (quoting Rolland v. Christian, 69 Cal.2d 108, 113 (1968), superseded by statute as stated in Perez v. Southern PAC. Transept. Co., 218 Cal.App.3d 462, 467 (1990)). Whether the plaintiff's conduct in undertaking the activity was reasonable or unreasonable is irrelevant. See Knight, 3 Cal.4th at 309. Similarly, a plaintiff's "subjective knowledge and expectations" regarding the risks of the activity are also immaterial. Id. at 312; see id. at 313 (noting that assessing a defendant's liability based on an individual plaintiff's knowledge would create "drastic disparities in the manner in which the law would treat defendants who engaged in precisely the same conduct, based on the often unknown, subjective expectations of the particular plaintiff who happened to be injured by the defendant's conduct" and that such an approach is inconsistent with principles of fairness underlying a comparative negligence system).

Rather, the "existence and scope of a defendant's duty of care is a legal question which depends on the nature of the sport or activity in question and on the parties' general relationship to the activity, and is an issue to be decided by the court, rather than the jury." Id. at 313 (emphasis in original). Because whether the primary assumption of risk doctrine applies depends on the defendant's duty, the scope of the doctrine may be determined on motions for summary judgment. See Parsons, 15 Cal.4th at 465 ("Duty, being a question of law, is particularly amenable to resolution by summary judgment."); id. at 472 (noting that whether a duty of care exists in a given circumstance is a question of law to be determined on a case-by-case basis); Harold v. Rolling J Ranch, 19 Cal.App. 4th 578, 584 (1993) (noting that "the inquiry begins--and ends--with an analysis of whether the defendant owed a duty to a plaintiff").

It is clear that horseback riding is an inherently dangerous activity involving the risk that a person will fall off a horse when the horse stumbles, rears, or goes faster than a rider can handle. See Harold, 19 Cal.App. 4th at 587 ("There is no doubt horseback riding, even the rather tame sport of riding on the back of walking horses in an afternoon trail ride, carries some inherent risk of injury."); id. (noting that such risks include a horse stumbling, rearing, or breaking suddenly into a gallop); Guido v. Koopman, 1 Cal.App. 4th 837, 842 (1991) (noting that the risk of being thrown off a horse "is one of the most obvious risks of that activity, and readily apparent to anyone about to climb on a horse"); id. ("The cases of injuries from horseback riding are numerous, and we have found none which describe this risk as unexpected or extraordinary."); see also Galardi, 16 Cal.App. 4th at 822 (noting that "the sport of horse jumping has the inherent risk that both horse and rider will fall and suffer injury" and that "[c]ollisions with the jumps and ensuing falls are thus an integral part of the sport").

It is also clear that coaches and instructors owe a duty of care to persons in their charge. See Tan, 13 Cal.App. 4th at 1534-35 (citing a long line of cases). However, a coach is not liable for all injuries that his or her students suffer, as there are certain risks inherent in recreational activities--and in learning new activities--for which an instructor does not owe a duty under the primary assumption of risk doctrine. See Allan v. Snow Summit, Inc., 51 Cal.App. 4th 1358, 1368-69 (1996) ("Learning any sport inevitably involves attempting new skills. A coach or instructor will often urge the student to go beyond what the student has already mastered; that is the nature of (inherent in) sports instruction."). Instead, in order to be liable for breaching a duty of care, a coach must do something "besides teaching, encouraging, or 'pushing' the student" which increases "the risk of injury beyond the risks inherent in the sport." Id. at 1369 (emphasis in original); see Knight, 3 Cal.4th at 315-16 ("Although defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport."). Thus, a coach or instructor "owes a duty to a student not to increase the risks inherent in the learning process undertaken by the student." Parsons, 15 Cal.4th at 482.

In the horseback-riding context, an instructor's duty to avoid increasing the inherent risk of riding means that he or she has a duty to make sure that the riding conditions--including the status of the horse--are reasonably safe. See Tan, 13 Cal.App. 4th at 1535. [FN1] An instructor is not expected to eliminate the risk that a student will fall off her horse if the horse stumbles, rears, or suddenly accelerates, as that risk is inherent in the sport of horseback riding. A teacher who merely encourages a student to ride a little faster or attempt a new maneuver cannot be said to have breached her duty to the student. However, an instructor does have a duty to make sure that she does not increase that risk beyond its normal level by asking a student to perform tasks unreasonably beyond the student's capacity, having the student ride an injured or overly skittish horse, conducting a lesson in an unsafe area, or using equipment the instructor knows to be defective. If there are genuine issues of material fact with respect to whether the instructor breached her duty not to increase the dangers of horseback riding, then summary judgment is inappropriate. See Tan, 13 Cal.App. 4th at 1536.

FN1. Similarly, a commercial operator who offers horseback riding has a duty to ensure that the horses, equipment, and facilities it supplies do not increase the risk of injury above the level inherent in riding. See Harrold, 19 Cal.App. 4th at 586-88 (noting that a commercial operator has obligations to supply horses which are not unduly dangerous, to warn customers if a given horse has demonstrated a tendency to act in ways which increase the ordinary risk of riding, to provide safe equipment, to take the customers on safe trails, and so on).

The scope of the duty outlined by the Court properly balances the inherent risk in horseback riding with instructors' duty of care to their students. A rule imposing a duty on instructors to avoid any injury to riding students would ignore the dangers inherent in the activity, would impose liability where there was little connection between the instructors' conduct and the students' injuries, would assign moral blame to a coach where none may be warranted, may do little to prevent future harm, may unnecessarily burden instructors and society generally, and may make it prohibitively expensive for instructors to obtain insurance. On the other hand, a rule absolving instructors of any duty to protect their students would remove any incentive for instructors to make riding as reasonably safe as the activity--and its inherent risks--permits. Instructors cannot reasonably be expected to prevent students from falling off their horses for any reason, but coaches can reasonably be asked to avoid engaging in conduct that makes injury more likely. Thus, holding instructors to their duty not to increase the risks inherent in horseback riding properly imposes fault where the instructors' conduct--and not the inherent risk of riding--is responsible for a student's injuries.

The issue here, then, is whether the risk that a person will brush against a wall and fall off her horse is inherent in the sport of horseback riding or whether Webster's conduct increased the risks in riding. Ordinarily, where the object with which a rider collides is a foreseeable part of riding--a tree branch or fence post when a rider is outside or a jump, wall, or stall door when riding inside--the risk that a rider would brush against some object and fall is inherent in the activity. However, when the object is not a foreseeable part of riding, such as PVC pipe stored along a wall, the contact with that item cannot be considered an inherent risk of riding. Put another way, a rider must anticipate avoiding obstacles that are reasonably foreseeable such as branches, fences, walls, and other horses, as the risk of falling after colliding with those objects is inherent in the sport. A rider should not,

however, be required to expect unforeseeable objects that increase the risk inherent in riding. If an instructor's conduct negligently increases the risk posed by such unexpected objects, the teacher should be liable for any damages caused by the breach of her duty.

Here, there are genuine issues of material fact with respect to whether Webster's conduct increased the inherent risk of riding. The plaintiffs contend that Webster increased the inherent risk of riding by: (1) failing to warn Christine of the risk posed by the PVC pipe; (2) permitting Christine to ride too close to the wall; and (3) remaining too large a distance away from Christine during the lesson. Webster acknowledged that it can be dangerous when a rider brushes against a wall, as it can spook the horse and can be uncomfortable for the rider. See Shapiro Decl. in Opp'n to Webster Mot. for Summ. J., July 27, 2001, Ex. 1 ("Webster Dep."), at 56. Webster estimated that Christine was approximately one foot away from the wall during her lesson. See id. at 55. However, Webster conceded that her distance from Christine-- approximately forty feet when the accident occurred--made it difficult for her to judge the distance of the horse from the wall without guessing. See id. at 69, 77. In fact, she could only monitor whether Christine was too close to the wall by listening for the sound of the stirrup scraping against the wall. See id. at 56.

Webster's conduct may have been reasonable--in other words, she may not have breached her duty not to increase the inherent risks of riding--but there are genuine issues of material fact upon which a reasonable jury could decide that Webster's failure to warn Christine about being too close to the wall, particularly given the presence of the PVC pipe, did increase the risk of riding beyond its inherent risk and that Webster therefore breached her duty to Christine. Accordingly, Webster's motion for summary judgment on the basis that the plaintiffs' primary assumption of risk completely bars their claim must be DENIED.

III. WHETHER THE PLAINTIFFS' CLAIM IS TIME-BARRED

D'Ambrosio also contends that the plaintiffs' claim is time-barred due to the provision in the Boarding Contract limiting claims against the Ranch to six months. In D'Ambrosio's view, the six-month limitation period is reasonable and therefore enforceable. The plaintiffs counter that the Boarding Contract is unenforceable against Christine since she is a minor and the Contract was not signed by the Ranch and that D'Ambrosio's failure to plead any contractual limitations period in its answer waives that affirmative defense.

A defendant waives an affirmative defense where the defendant fails to plead that defense in its answer. See Fed.R.Civ.P. 8(c) (providing that an answer "shall set forth affirmatively ... statute of limitations ... and any other matter constituting an avoidance or affirmative defense"); United States Postal Service v. American Postal Workers Union, AFL-CIO, 893 F.2d 1117, 1122 (9th Cir.1990) ("Federal Rule of Civil Procedure 8(c) requires that a statute of limitations defense be pleaded or it is waived."). A defendant may raise an affirmative defense on a motion for summary judgment even where the defendant did not plead that defense in its answer, but only where the delay does not prejudice the plaintiff. See, e.g., Magana v. Northern Mariana Islands, 107 F.3d 1436, 1446 (9th Cir.1997). Here, the plaintiffs have suffered prejudice, as the parties have proceeded through almost a year of litigation, including the depositions of multiple witnesses and preparing the summary judgment motions.

Moreover, even if D'Ambrosio did not waive its contractual period of limitations defense, the Boarding Contract in which the limitations period appears is unenforceable. Paragraph 13 of the Contract indicates that it is binding on both parties only when the Ranch manager and the horse owner sign the Contract. See Boarding Contract 13. Courts must strictly construe documents waiving liability on the part of the drafter. See Saenz, 226 Cal.App.3d at 764. The Ranch manager never signed the Contract, so its provisions, including the contractual period of limitations, are not enforceable. [FN2] Thus, D'Ambrosio's motion for summary judgment on the basis of the limitations period in the Boarding Contract is DENIED.

FN2. As a result, the Court need not consider whether the six-month period was reasonable in light of Christine's status as a minor.


IV. WHETHER WEBSTER IS SUBJECT TO PREMISES LIABILITY

Webster also moves for summary judgment on the ground that she cannot be liable under a premises liability theory since she did not own or control the Ranch. The Jorsts concede that Webster did not have control over the indoor arena at the Ranch but insist that their complaint also contemplates a claim that Webster negligently supervised Christine during her lesson by failing to recognize that the pipe constituted a danger and to instruct Christine accordingly. The allegations in the plaintiffs' complaint are not expressly limited to a premises liability theory and could arguably encompass a negligent supervision claim against Webster. See Compl. 14-15 (alleging that the defendants should have known that the PVC pipe was dangerous and that the defendants' failure to remedy that condition caused Christine's injuries). Thus, Webster's motion for summary judgment must be GRANTED IN PART to the extent that the plaintiffs' claims are predicated on a premises liability theory but DENIED IN PART to the extent the plaintiffs' complaint is based on general negligence or a negligent supervision theory.

CONCLUSION

For the foregoing reasons, D'Ambrosio's motion for summary judgment is DENIED since the Release is unenforceable, D'Ambrosio waived its contractual limitation defense, and the Boarding Contract is unenforceable. Webster's motion for summary judgment is DENIED IN PART as to the plaintiffs' express and primary assumption of risk but GRANTED IN PART to the extent the plaintiffs seek to recover on a premises liability theory.

IT IS SO ORDERED.


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