Eleven year old plaintiff Esraelo was injured while riding double on defendant Chavez’ horse. The injury occurred when the horse on which plaintiff was riding trotted to catch up with two horses that had moved hurriedly away from the group. The trial court granted summary judgment for the defendant.
In this opinion, the Court of Appeals agrees with that decision. Defendant merely supplied the horse. He was not an instructor or coach. The plaintiff assumed the risk of such an injury by riding the horse. Defendant did nothing to increase that risk, so is not liable for the injury.
This case involves the doctrine of assumption of risk. Appellant, Melissa Esraelo, who was 11 years old at the time of the accident at issue here, rode an undisputedly gentle horse with her friend Caitlin Fernandes while on respondent Louis Chavez's ranch. Melissa fell off the horse, injured her arm, and now seeks compensation for her injuries.
FACTUAL AND PROCEDURAL BACKGROUND
On March 16, 2000, Melissa asked her parents' permission to stay the night with her friend Caitlin. Melissa's parents, guardians ad litem John and Ninva Esraelo, talked to Caitlin's father, Larry Fernandes. Fernandes told the Esraelos that the girls would be visiting a ranch and going horseback riding. The Esraelos gave their permission for Melissa to spend the night and ride horses.
On March 18, 2000, Melissa and Caitlin visited Chavez's ranch and were allowed to ride Chocolate, a 20-year-old horse that was undisputedly "gentle" and appropriate for inexperienced children to ride. Chocolate had been saddled that morning and the girls spent most of the day riding the horse "double." It was undisputed that the horse was left saddled while Chavez was taking a nap. Two other girls visiting the ranch, Katie and Jordan, had their own horses and were riding at the same time as Melissa and Caitlin. At the time of the accident, Katie and Jordan decided to race their horses while Melissa and Caitlin were riding Chocolate. Chocolate took off in a trot trying to keep up with the racing horses. Caitlin, who was riding behind Melissa, began to fall off Chocolate and grabbed onto Melissa, pulling her off the horse. Melissa injured her arm in the fall.
On March 19, 2001, Melissa, through her parents, filed a complaint against Chavez making a single claim of negligent supervision. Melissa's complaint alleged, in pertinent part:
"9. On or about March 19, 2001, defendants LOUIE CHAVEZ, and DOES 1 through 3, negligently and carelessly allowed without appropriate adult supervision plaintiff minor, MELISSA ESRAELO, and a friend, also a minor, access to his horse known as 'Chocolate' on his property located on Turlock Road in the City of Ballico, County of Merced, State of California.
"10. On said date, the minor plaintiff MELISSA ESRAELO and her minor friend, one Caitlin Fernandes, rode the horse known as 'Chocolate' with the permission, consent and knowledge of defendants, LOUIE CHAVEZ and DOES 1 through 3, inclusive. At said time and place Chocolate had a single saddle with one saddle horn, one set of stirrups and a single set of reins. The defendants negligently permitted and consented to both minors riding the horse at the same time, i.e., both being in the single saddle at the same time.... [¶] ... [¶]
"11. The two minors were not capable, under the circumstances described hereinabove, of managing, guiding, controlling, or directing the horse 'Chocolate,' and defendants knew or should have known of that fact.
"12. As a proximate result of defendant's negligence and carelessness, plaintiff, while riding 'Chocolate' was thrown form the horse to the ground with great force and violence."
Chavez answered the complaint on June 5, 2001, and filed a motion for Judgment on the Pleadings on September 7, 2001. The trial court denied the motion for Judgment on the Pleadings and Chavez moved for summary judgment with a hearing date of April 18, 2002. Chavez contended in his motion that Melissa's claim was barred by the doctrine of primary assumption of risk. Melissa timely opposed the motion, arguing that assumption of risk was inapplicable and that a triable question of fact existed with respect to Chavez's duty to supervise and by increasing the risk of harm to Melissa by allowing her to ride double.
The trial court heard argument on the motion on April 18, 2002. The trial court concluded Melissa assumed the risk of injury when she rode the horse, noting, "If you ever rode a horse, they knock you off sometimes" and that "unless someone elevated the risk here, which I don't see ... " then summary judgment was appropriate. The order granting summary judgment was filed June 26, 2002, and judgment entered the same day. Melissa, through her parents, timely appeals.
Standard of Review
The standard of review on appeal from a summary judgment is well settled: "A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) We review the trial court's decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded), and the uncontradicted inferences the evidence reasonably supports. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
A defendant moving for summary judgment meets his burden of persuasion showing that there is no merit to a cause of action if that party has shown that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o)(2); Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003 (Kahn ).) Once the defendant does so, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or to a defense to the cause of action. In doing so, the plaintiff cannot rely on the mere allegations or denial of his pleadings, "but, instead, shall set forth the specific facts showing that a triable issue of material fact exists...." (Code Civ. Proc., § 437c, subd. (p)(1); see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.)
When a defendant moves for summary judgment based on the doctrine of implied assumption of risk, he or she has the burden of establishing the plaintiff's primary assumption of risk by demonstrating that the defendant owed no legal duty to the plaintiff. Thus, the doctrine of primary assumption of risk negates any elements of a plaintiff's negligence claim. (See Prosser & Keeton on Torts (5th ed.1984) § 30, pp. 164‑165 [elements of a claim of negligence are duty, breach, causation and damages]; Freeman v. Hale (1994) 30 Cal.App.4th 1388, 1395.) Determining whether the primary assumption of risk doctrine applies is a legal question to be decided by the court. (Knight v. Jewett (1992) 3 Cal.4th 296, 313 (Knight ); Mastro v. Petrick (2001) 93 Cal.App.4th 83, 88; Record v. Reason (1999) 73 Cal.App.4th 472, 479.) If the doctrine applies, there is no triable issue of fact because the defendant legally owed the plaintiff no duty, and therefore plaintiff is unable to establish an element of the negligence cause of action.
Primary versus Secondary Assumption of Risk
As stated, primary assumption of risk applies when, as a matter of law, a defendant has no duty to protect a plaintiff from a particular risk. (Knight, supra, 3 Cal.4th at pp. 308, 314‑315 (Knight ).) The Knight court recognized that in the sports setting "conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself." (Id. at p. 315.) However, primary assumption of risk does not apply as a matter of law when plaintiff is able to create a triable issue of material fact as to whether the defendant increased a risk inherent in the sport. Where the defendant increased risk to the plaintiff, then secondary assumption of risk applies and comparative negligence principles come into play. (See Li v. Yellow Cab Co. (1975) 13 Cal.3d 804.)
Primary Assumption of Risk is Appropriate Here
Chavez asserts that the doctrine of primary assumption of risk as defined in Knight applies in this case because being thrown from a horse while horseback riding is about the most obvious risk there is in the sport. His point is well taken. Nevertheless, Melissa maintains that primary assumption of risk does not apply because Chavez breached his duty "to provide a safe horse equipped with safe riding gear appropriate for the inexperienced rider." Thus, Melissa argues that Chavez increased the risk she would harm herself and therefore secondary assumption of risk applies.
In support of this argument Melissa relies on cases where courts refused to apply primary assumption of risk as a matter of law because a question of fact existed regarding whether the defendant had provided faulty equipment. (Bjork v. Mason (2000) 77 Cal.App.4th 544 [question of fact existed regarding whether rope used to pull inner tube was faulty]; Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248 [assumption of risk properly applied where no evidence that rafting boat provided increased inherent risks in sport of rafting].) However, even assuming the applicability of these cases generally, Melissa has failed to meet her evidentiary burden in this case to raise any material question of fact that the equipment supplied here was "faulty" in any way. The trial court pointedly asked,
"[COURT]: Do you have any expert testimony that somehow [riding double] elevates the risk of an eleven year old ‑ Do you have an expert?"
"[COUNSEL]: I don't have an expert. I think common sense ‑
"[COURT]: Kids ride double on horses all the time."
Once Chavez established by his motion that he owed no duty to protect Melissa from the inherent risk that she might fall off a horse while riding a horse, it became Melissa's burden to show Chavez did something to increase the risk of horseback riding in order for secondary, not primary, assumption of risk to apply. Melissa failed to do so. In Bjork, the inner tubing case, the plaintiff avoided summary judgment by presenting the declarations of two expert witnesses that "(1) the towrope which broke was 'very old' (perhaps 10 years old) and frayed, (2) a towrope should be replaced whenever it appears frayed and damaged and, in any event, at least every two years, and (3) it is important to use a towrope that is appropriate for the weight being towed." (Bjork v. Mason, supra, 77 Cal.App.4th at p. 547.) In Ferrari, a case in which the plaintiff claimed the defendant breached a duty to provide safer boating equipment to her, summary judgment against the plaintiff was affirmed because the plaintiff failed to provide any evidence "of the availability or feasibility of safer alternatives to the industry standard, or of safety features such as padding or helmets." (Ferrari v. Grand Canyon Dories, supra, 32 Cal.App.4th at 256.)
Here, while Melissa claims a question of fact exists "as to whether [Chavez] increased the risks inherent in horseback riding by his actions in permitting an amateur and inexperienced horse rider to ride his horse ... without furnishing appropriate riding gear ...," she provides no evidence whatsoever that the gear she had was inappropriate. Additionally, as set forth below, even if we were to accept Melissa's argument that "common sense" dictates the conclusion there is some increased risk in riding double, Melissa assumed that increased risk and there was no evidence Chavez had any duty to prevent that increased risk. Chavez Was Not an Instructor or Coach
In a corollary argument, Melissa argues that she should not have been allowed to ride double, and thus secondary assumption of risk is more appropriately applied to her case. That is, she contends Chavez breached his duty of care by allowing her to ride double and, to the extent she assumed that risk, comparative negligence principles should apply. (See Knight, supra, 3 Cal.4th at p. 308 [defining secondary assumption of risk as "those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant's breach of that duty"].) The fallacy in this argument brings us to an additional basis upon which Melissa's claim fails: there was no evidence Chavez instructed the girls to ride double or that Chavez was in any way responsible for supervising the girls. Hence, even assuming someone could, in the abstract, breach a duty of care by allowing "double" riding, there was simply no evidence here that Chavez assumed such a responsibility for the safety of appellant. Chavez was not an instructor, supervisor or even a caretaker here. Appellant tries to argue that Chavez's "role as owner and controller of the property and horse provided to [a]ppellant to ride were more analogous to that of instructor or supervisor." Appellant then goes on to cite cases in the horseback riding context finding primary assumption of risk inapplicable with respect to an instructor who may have set up dangerous jumps and a children's horse camp that provided a "head shy" horse. (See Galardi v. Seahorse Riding Club (1993) 16 Cal.App.4th 817; Giardino v. Brown (2002) 98 Cal.App.4th 820.) No such analogy is appropriate.
We fully understand the general tenor of appellant's argument: "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." (Knight, supra, 3 Cal.4th at pp. 315‑316.) Thus, in Galardi v. Seahorse Riding Club, supra, 16 Cal.App.4th 817, for example, the court held that while falling off a horse is an inherent risk of riding through a jump course, an instructor at a riding club had a duty of care to ensure that the course the instructor set up for the rider was not beyond the capabilities of the horse and rider. (Id. at pp. 822‑823.) While recognizing the risk of injury from a fall cannot be eliminated "and in fact creates the challenge which defines the sport," the court concluded the defendants owed a duty "to avoid an unreasonable risk of injury to plaintiff and to take care that the jumping array was not beyond the capability of horse and rider." (Id. at p. 823.) Similarly, in Branco v. Kearny Moto Park, Inc. (1995) 37 Cal.App.4th 184, the court concluded that while jumps and falls are inherent in the sport of bicycle motocross racing, the operator of a race course had a duty "to refrain from utilizing jumps which by design create an extreme risk of injury." (Id. at p. 193.)
These cases are inapposite. The undisputed evidence here was that Melissa came to appellant's ranch with a friend and the friend's dad and rode Chavez's horse. Chavez was in fact taking a nap while the children were riding, and it was undisputed Melissa's parents had given her permission to go riding, that Chocolate was known to be a gentle horse, and that Melissa's friend's father was the adult that brought them to the ranch. Any idea that simply allowing someone on to your ranch ‑ basically because you are a generous person ‑ results in an increased duty of care analogous to a commercial operator, supervisor or sports coach is simply unfair and would be devoid of any public purpose. (See Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal.App.4th 703, 712, ["When addressing the applicability of primary assumption of the [sic ] risk, we analyze the nature of the activity and the role of each of the parties to that activity and decide as a matter of public policy whether the defendant should owe the plaintiff a duty of care"] citing Shannon v. Rhodes (2001) 92 Cal.App.4th 792, 795.) Not only was Chavez not Melissa's instructor, he had only just met her, was taking a nap when the girls decided to ride the horse on their own, and apparently had no involvement whatsoever in allowing the girls to ride the horse (other than perhaps not telling them not to), let alone ride double.
It should go without saying that unless the defendant instructed, coached or supervised he or she will not be held to the standard of an instructor, coach or supervisor. All of the authority relied on by Melissa and uncovered by our research regarding instructors or coaches was applied to cases where the defendant was unquestionably the plaintiff's instructor or coach. (See Kahn, supra, 31 Cal.4th 990 [discussed, infra ] (swimming coach potentially liable for reckless conduct); Tan v. Goddard (1993) 13 Cal.App.4th 1528, [jockey school instructor owes duty of care not to increase risk of activity]; Galardi v. Seahorse Riding Club, supra, 16 Cal.App.4th 817 [equestrian instructor at riding club owed duty not to raise jumps beyond student's capabilities]; Regents of University of California v. Superior Court (1996) 41 Cal.App.4th 1040 [rock climbing instructor owed no duty to absolutely insure proper placement of anchors]; Bushnell v. Japanese‑ American Religious & Cultural Center (1996) 43 Cal.App.4th 525, 531 [judo instructor owed no duty to prevent judo injury and noting, that the "doctrine of primary assumption of risk can apply even if the defendant was in some manner in control of the situation and thus in a better position than the plaintiff to prevent the plaintiff's injury"]; Fortier v. Los Rios Community College Dist. (1996) 45 Cal.App.4th 430, 432‑433 [primary assumption of risk bars claim of negligence against football coach].)
These cases stand in stark contrast to the Supreme Court's holding in Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 460, where the court recognized that, "there are circumstances in which the relationship between defendant and plaintiff gives rise to a duty on the part of the defendant to use due care not to increase the risks inherent in the plaintiff's activity. For example, a purveyor of recreational activities owes a duty to a patron not to increase the risks inherent in the activity in which the patron has paid to engage. [Citations.] Likewise, a coach or sport instructor owes a duty to a student not to increase the risks inherent in the learning process undertaken by the student" but finding a third party that spooked a horse to have no duty to the plaintiff because as "independent actors, separately pursuing their own activities," and third parties generally have no duty to avoid increasing the risks inherent in a plaintiff's activity. (Id. at pp. 482‑483.). While Chavez's relationship to Melissa falls somewhere between these two extremes, the facts make clear he was more akin to a third party than an instructor. The idea that Chavez should be held to the standard of an instructor or coach is without merit. [FN7]
FN7. Likewise unpersuasive are appellant's attempts to analogize Chavez's duty to those of common carriers or horseback riding operators who rent out their horses and lead supervised horseback riding excursions. Obviously, commercial horse renting operations more easily lend themselves to an analogy to the duty of an instructor or supervisor. (See, e.g., Giardino v. Brown, supra, 98 Cal.App.4th at p. 834 [precluding summary judgment where plaintiff presented evidence that horseback riding camp knowingly provided horses to children that were "inappropriate for their skill level"], compare, Harrold v. Rolling J. Ranch (1993) 19 Cal.App.4th 578, 580 [finding "[s]udden movements of a horse ... inherent in horseback riding"].) But those are simply not the facts here. In this case, if anyone besides Melissa were to bear any legal responsibility for her broken arm [though we in no way mean to imply anyone does], it would be either Melissa's parents who expressly permitted her to go to a stranger's ranch and allow her to ride horses knowing she had never been on a horse, the friend who pulled Melissa off the horse, or Mr. Fernandes who brought them to the ranch and left them unsupervised. They all certainly had a much more direct line of responsibility to Melissa than Chavez.
There was no "dangerous condition"
Finally, perhaps in recognition of the flaws in her case, appellant moved below at the time of the summary judgment motion to amend her complaint and add a claim of dangerous condition of property. Her argument was apparently that by leaving the horses saddled and the girls unsupervised Chavez created a dangerous condition. She makes a similar type of argument on appeal by contending Chavez is responsible for her injuries under Civil Code section 1714, subdivision (a), which provides for liability for a possessor of property based on their negligent operation and control of that land. She then reasons that, "[Chavez] knew the children were inexperienced riders ... [he] knew the horses were bridled and saddled before he took his nap ... [and he] saw her riding Chocolate [before the accident]...." Appellant completes this logic by reasoning that the Restatement of Torts calls for liability "on the part of anyone supplying chattels...."
First, to the extent this is simply a repeat argument that Chavez increased any risk of harm by supplying a "single" saddle for "double" riding, we reiterate that Melissa provided no evidence to support that proposition. Alternatively, to the extent appellant intends this argument to be that by allowing children to be on property where horses were saddled he created some sort of dangerous condition, we summarily reject it. Though she does not call her theory one of "attractive nuisance," we perceive her argument to be along those lines and find it untenable to conclude having a saddled horse on one's property could ever be ‑ in and of itself ‑ a dangerous condition. In any event, there is simply no basis in law or logic for concluding that merely allowing pre‑teenaged children, who are accompanied by a parent, on the same property as saddled horses creates liability for having "dangerous property."
Kahn does not help appellant
Finally, we quickly dismiss appellant's reliance on our Supreme Court's recent pronouncement in Kahn, supra, 31 Cal.4th 990, as misplaced. Appellant argues Kahn is relevant here because Chavez is analogous to the high school coach in Kahn who was alleged to have failed to provide proper instruction and take "plaintiff beyond her skill level." As set forth above, the suggestion that Chavez assumed a role anything close to that of coach is overreaching, at best. In fact, it was undisputed that Chavez had only briefly met appellant prior to the accident.
Moreover, even if we were to accept as true that "doubles" riding may increase a risk of harm in horseback riding, and even if we were to assume an instructor/supervisor relationship between Chavez and Melissa, there is still no triable issue of material fact in this case. There is simply no evidence that allowing someone to ride double is "totally outside the range of ordinary activity involved in the sport" [citation] and therefore creates no triable issue that Chavez's conduct was wanton and reckless. (See Kahn, supra, 31 Cal.4th at p. 996 [allowing for possible liability to a sports instructor "only if the instructor ... engages in conduct that is reckless in the sense that it is 'totally outside the range of the ordinary activity' [citation] involved in teaching or coaching the sport"].) Because Melissa did not demonstrate the existence of a triable issue of material fact that Chavez engaged in wanton and reckless misconduct, she failed to remove herself from the complete bar to recovery created by the doctrine of primary assumption of risk.
The judgment is affirmed. Costs to respondent.
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