University of Texas at Austin UTopia





 Court of Appeal, First District, Division 5, California

 2005 WL 995554

April 29, 2005

Not Certified for Publication 

Summary of Opinion 

Plaintiff Nelson, a race track exercise rider with 30 years experience, was seriously injured when the horse he was riding went out of control and crashed into a “shadow fence” on the track throwing plaintiff into the fence.  The appellate court rejects the plaintiff's argument saying there was no evidence that the fence increased the risk to the rider beyond those inherent in this activity. 

Text of Opinion

 Kenneth Nelson appeals a summary juPlaintiff Nelson, a race track exercise rider with 30 years experience, was seriously injured when the horse he was riding went out of control and crashed into a “shadow fence” on the track throwing plaintiff into the fence.  The appellate court rejects the plaintiff's argument saying there was no evidence that the fence increased the risk to the rider beyond those inherent in this activity.dgment in favor of Ladbroke Racing Corporation and Pacific Racing Association in his action for damages based on negligence and strict product liability. 


 Undisputed Facts


 Plaintiff was injured while exercising a racehorse at Golden Gate Fields, a part-time race track and year-round thoroughbred horse training facility owned by defendant Ladbroke Racing Corporation, and managed by a Ladbroke-owned entity, defendant Pacific Racing Association. Golden Gate Fields is licensed by the California Horse Racing Board (Racing Board), which is required to establish safety standards for race tracks, including, inter alia, inner and outer rails, gates and gaps, and egress to the track, in order to improve the safety of horses, riders and workers in the racing enclosure. (Bus. & Prof.Code, §  19481.)  [FN1]


FN1. Business and Professions Code section 19481, subdivision (a), requires the Racing Board to "establish safety standards governing the uniformity and content of the track base and racing surface, inner and outer rails, gates and gap, turf, access and egress to the track, lighting for night racing, equipment for horse and rider, drainage, communications, veterinary services, medical and ambulance services, and other track facilities in order to improve the safety of horses, riders, and workers at the racetrack."


At the time of his accident, plaintiff had been a professional freelance racehorse exercise rider for 30 years and had worked primarily at Golden Gate Fields for nine years. He was also licensed by the Racing Board. Exercise riders at Golden Gate Fields are employed by horse trainers, not by defendants.


The main track at Golden Gate Fields is a one-mile oval dirt course. The oval has two straightaways that run north-south: the western "homestretch" that lies parallel to the grandstand and the eastern "backstretch" that lies parallel to Interstate 80. It also has a north curve or turn, a south curve or turn, an inner boundary, and an outer boundary. Because horses race in a counter-clockwise direction around the Golden Gate Fields oval, they are moving in a southerly direction when they are on the homestretch and a northerly direction when they are on the backstretch.


Surrounding the oval's inner boundary is a fence consisting of evenly spaced, angled metal posts ("goosenecks") on top of which sits a continuous railing that protrudes slightly over the dirt track. This fence is known as the inner rail and is required at all California race tracks by Racing Board rule 1472. Following extensive discussions between the Racing Board and defendants, a new type of inside rail was installed a few years before plaintiff's accident to decrease the likelihood of jockeys being impaled by the component parts of the rail during collisions with it.


A similar outer rail begins on the oval's outer boundary at the point where the backstretch curves into the north turn. The outer rail continues around the north turn until it reaches a gap where the north turn curves into the homestretch. This gap is referred to as the northern or quarter chute. The outer rail resumes on the other side of the northern gap and proceeds south along the homestretch in front of the grandstand, goes around the south turn, and terminates just before the beginning of the northbound backstretch.


A chain-link fence, often referred to as a shadow fence, runs parallel to and just outside the oval along the backstretch, separating the oval from Interstate 80. Trees and shrubbery grow between the shadow fence and Interstate 80. The shadow fence does not contain a rail. Racing Board rule 1472 requires race tracks to have either an outer rail or a shadow fence designed to meet the same impact standards as a permanent rail. Rule 1472 requires a permanent rail to be designed so that it does not collapse or break away when a horse that is "running parallel to the rail either bumps, lugs or falls into the rail or [its upright] posts during normal training or racing." Between 1972 or 1973 and 1994 the shadow fence contained redwood slats. There is no evidence they were ever painted white. Because wood could impale a horse or rider, the redwood slats were replaced with vertical green plastic slats in 1994, to comply with Racing Board rule 1472 that forbids wooden rails. The green slats give the shadow fence the appearance of a solid fence.


There is another gap, known as the southern or three-quarter chute, between the termination of the outer rail and the green shadow fence. It permits access to the stables that lie to the south of the southern turn of the oval.


Plaintiff's accident occurred when he was exercising CooCooWalk, a horse he had ridden approximately 100 times previously. As they were halfway through the south turn, moving at a gallop, something "triggered fear" in CooCooWalk, and she began to drift to the oval's outer boundary, i.e., to the right. Plaintiff attempted to turn her head to the left, but he could not control her or slow her down. When CooCooWalk reached the south chute, plaintiff released CooCooWalk's head, hoping she would see the green shadow fence and avoid it. However, she collided with the shadow fence and plaintiff was thrown, crashing into the fence himself and sustaining severe injuries.


 Prior to plaintiff's accident, defendants had never received reports that horses had difficulties perceiving the green shadow fence or that it posed a danger for horses or riders. At the time of the accident, the fence complied with all applicable written regulations, which were silent as to fence color.




Plaintiff's fourth amended and operative complaint contained causes of action for premises liability and strict product liability against defendants.  [FN2] The gravaman of his premises liability cause of action was that defendants negligently and carelessly erected the green shadow fence in such a place and manner that it created a dangerous condition for those using the track, and this dangerous condition created a reasonably foreseeable risk of the kind of injury that plaintiff incurred.


The gravaman of plaintiff's strict product liability cause of action was that the design of Golden Gate Fields and its related safety system was intended to protect riders such as him from the kind of accident in which he was injured, that the design was defective, and that he was injured because of the defects in the design.


 Motion for Summary Judgment


Defendants moved for summary judgment on the grounds plaintiff's action was without merit and/or barred by defendants' affirmative defense of assumption of the risk, and because plaintiff could not establish that defendants' premises and/or actions concerning the premises were a substantial factor in causing his injuries.


Plaintiff opposed the motion on the ground the primary assumption of the risk doctrine was inapplicable because defendants had a duty to provide a safety rail system that improved rider and horse safety, to design a reasonably safe track, and not to increase the risk of harm. He also opposed the motion on the ground defendant was subject to strict products liability because it placed a defective product--the tracks' safety rail system--in the stream of commerce.



The trial court concluded that plaintiff did not present competent evidence to create a triable issue of fact as to defendants' affirmative defense of assumption of the risk in his premises liability cause of action, nor did he present evidence adequate to create a triable issue as to whether the color of the fence was a substantial factor in causing the accident. It also concluded that plaintiff failed to present evidence to establish that the shadow fence was a "product" for purposes of strict products liability. It therefore granted defendants' motion and entered judgment in their favor.



 Standard of Review


A court properly grants summary judgment if the record establishes no triable issue of fact and the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc. §  437c, subd. (c).) A defendant moving for summary judgment meets its burden of showing a cause of action has no merit if it establishes that one or more elements cannot be established or an affirmative defense exists as to that cause of action. (Code Civ. Proc. §  437c, subd. (o)(2).) Once the defendant meets this burden, the plaintiff must show the existence of a triable issue as to that cause of action. (Code Civ. Proc. §  437c, subd. (p).) The appellate court reviews the record de novo, applying the same standard as the trial court to determine whether the motion was properly granted. (Bed, Bath & Beyond of La Jolla, Inc. v. La Jolla Village Square Venture Partners (1997) 52 Cal.App.4th 867, 873.)


 I. Assumption of the Risk


 Plaintiff contends defendants failed to establish the affirmative defense of assumption of the risk.


Knight v. Jewett (1992) 3 Cal.4th 296 noted two kinds of assumption of the risk. Primary assumption of the risk "embodies a legal conclusion that there is 'no duty' on the part of the defendant to protect the plaintiff from a particular risk," and the plaintiff's assumption of the risk acts as a complete bar to liability. (Id. at pp. 308, 310.) Secondary assumption of the risk refers to the circumstance in which the defendant owes a duty of care but the plaintiff knowingly encounters a risk created by the breach of the duty. (Id. at p. 310.) Secondary assumption of the risk is subsumed into the comparative fault scheme, and the plaintiff's assumption of the risk does not act as a complete bar. (Id. at p. 315.)


Participation in an active sport is generally governed by primary assumption of the risk, relieving the defendant of any duty to protect against risks inherent in the sport. (American Golf Corp. v. Superior Court (2000) 79 Cal.App.4th 30, 36.) However, under secondary assumption of the risk, a recreation provider owes the participant in an active sport a duty not to increase the risk of harm over and above the inherent risk of the sport. (Id. at pp. 36-37.) If a risk is inherent in a sport, a duty is not imposed because the defendant had a feasible means to remedy the danger, nor is a duty created because safer materials are available to remedy the danger. (Ibid.)


 Summary Judgment


"In a given active sport setting, the question whether the defendant owes a duty to the plaintiff '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. [Citation.] Thus, the question of assumption of risk is much more amenable to resolution by summary judgment under a duty analysis....' " (Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1632-1633 (Staten ), quoting Knight v. Jewett, supra, 3 Cal.4th 296.) In determining the scope of the defendant's duty, the court decides whether an activity is an active sport, the inherent risks of that sport, and whether the defendant has increased the risks beyond the risks inherent in the sport. (Staten, supra, 45 Cal.App.4th at p. 1634; Vine v. Bear Valley Ski Co. (2004) 118 Cal.App.4th 577, 593, fn. 4 (Vine ).)


 Horse Racing


There is no gainsaying that horse racing, whether the actual competitive matchup or training and exercise for the upcoming event, is an active sport with inherent dangers, including unpredictable behavior by the horse, which, by its nature, is difficult to control, and collisions of horse and rider with stationary objects like fences or moving objects like other horses. (See Shelly v. Stepp (1998) 62 Cal.App.4th 1288, 1294-1295; see also Harrold v. Rolling J Ranch (1993) 19 Cal.App.4th 578, 587: even afternoon trail ride on back of walking horse has inherent risk of injury.) Plaintiff has never seriously argued otherwise. His complaint is premised on the assertion that the "camouflaged" green shadow fence without a rail increased the inherent risk of collision because the fence was camouflaged by the vegetation growing behind it and was misapprehended by the horse as an avenue of escape. Therefore, a swiftly moving horse would not be able to perceive the shadow fence, as it would be able to perceive a white fence that contrasted with the foliage or by an outer rail. According to plaintiff, defendants thereby increased the risks inherent in riding or exercising horses.


Given this allegation, defendants had to show that the rail-less green shadow fence did not increase the inherent risks of horse racing in order to establish they owed no duty to plaintiff because he had assumed the risk of injury. (Balthazor v. Little League Baseball, Inc. (1998) 62 Cal.App.4th 47, 52.) Industry standards define the nature of the risks of a sport. (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 257.) By requiring a track to have either a shadow fence or an outer rail and by prescribing the permissible height and construction material of those rails and fences, the Racing Board, which sets industry standards, acknowledges that collisions with these fixed objects establishing the boundaries of the race course are an inevitable risk of horseracing. These regulations also constitute an industry recognition that the inherent risk of collision is not increased if the rails and fences comport with the Racing Board's specifications. Defendants presented undisputed evidence that Golden Gate Fields complied with all safety standards governing fences imposed by the Racing Board. The Racing Board inspects Golden Gate Fields twice a year, and, in more than 40 inspections, it had not disapproved or ordered alterations to the green shadow fence. Defendants also presented undisputed evidence that in the 20 years of the green shadow fence's existence prior to plaintiff's accident, during which time between 550 and 700 horses were trained six or seven days per week on the track, there had been no complaints that the fence presented a danger to horses or jockeys or that horses had difficulty seeing it. In light of this uncontroverted evidence, the green shadow fence did not increase the inherent risk in horseracing of injury from collision by a runaway horse with a stationary object.


The declarations of plaintiff's experts that a white fence and/or a rail would have prevented injury because horses generally shy away from white fences and rails does not suffice to create a duty on defendants. Even accepting these declarations as competent, the evidence that an inherent risk could be decreased by use of more protective equipment or alteration of an object that is integral to the sport facility does not meet plaintiff's burden to establish that defendants increased that inherent risk by failing to provide the equipment or make the alteration. Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8 (Connelly ) is instructive on this point.


In Connelly, the plaintiff, an advanced skier familiar with the ski run at issue, was injured when he lost a ski, fell, and slid into a ski lift tower that was visible to approaching skiers for 200 yards. (Connelly, supra, 39 Cal.App.4th at p. 10.) He did not dispute that colliding with the tower was an inherent risk of skiing or allege that the ski resort did or failed to do anything that caused him to collide with the tower. (Id. at pp. 12, 14.) Rather, he argued that the tower was not adequately padded to cushion the blow and prevent his injuries. (Id. at p. 11.) Given the absence of evidence that the ski resort increased the inherent risk of injury from colliding with a ski lift tower while skiing, Connelly concluded that the ski resort was entitled to summary judgment because it showed that the plaintiff could not establish the duty element of his negligence and negligence-based premises liability causes of action. (Id. at p. 14.)


Likewise in this case, there was no evidence that the green rail-less shadow fence increased the risk inherent in horse racing of the horse, particularly a "spooked" horse, colliding with fences or railings or increased the risk that the injuries resulting from such a collision would be more severe than those resulting from a collision with a fence of a different material or color. As American Golf Corp. v. Superior Court, supra, 79 Cal.App.4th at page 39 observes, it is always possible for a plaintiff who sustains a sports injury to obtain expert testimony that an injury would not have occurred had the owner of the sports facility done something differently. "Such expert testimony is not sufficient to establish that the recreation provider increased the inherent risks of the sport. Such expert opinion does not create a triable issue of fact on a motion for summary judgment based on the primary assumption of the risk defense."


Plaintiff principally relies on the following cases to support his contention that a triable issue exists as to whether the green shadow fence increased the inherent risk. These cases are distinguishable.


In Vine, supra, 118 Cal.App.4th 577, the plaintiff was injured when she fell while attempting a snowboard jump at an employee party. (Id. at p. 583.) She alleged that the jump, which defendant ski resort had shaped with a snow cat, was a dangerous condition that increased the risks to snowboarders beyond those inherent in the sport. (Ibid.) The ski resort moved for summary judgment on, inter alia, a primary assumption of the risk defense, contending that it owed no duty to protect against the inherent risk of falling in the sport of snowboarding. (Id. at p. 591.) The trial court denied the motion after concluding the sport does not inherently require jumps designed in such a way as to create an extreme risk of injury. (Id. at p. 590.) A jury subsequently awarded plaintiff substantial damages. (Id. at p. 583.)


On appeal, the ski resort contended the trial court erroneously denied its motion for summary judgment. (Vine, supra, 118 Cal.App.4th at p. 590.) Vine stated that reviewing the interim summary judgment ruling would be inappropriate because (a) much more extensive evidence was presented at trial than in the summary judgment papers on the "critical" question of whether the jump was defectively constructed, and (b) the interests of justice would not be served were the appellate court to ignore the fully developed record and conduct an independent review of the summary judgment papers. (Id. at p. 591.) Nevertheless, before discussing the ski resort's claim of instructional error regarding assumption of the risk, Vine discussed why the trial court's denial of the summary judgment on primary assumption of the risk was correct. (Id. at pp. 591-592.) This latter discussion was thus dicta for purposes of the present case, which is not an appeal from a jury trial but from the grant of summary judgment.


In any case, even the dicta show the distinction between the two cases. In  Vine, the defendant ski resort's summary judgment asserted merely that falling was an inherent risk in snowboarding; it made no showing that the jump it fabricated did not increase the inherent risks of snowboard jumping or that whatever defects the jump contained were included in those risks. (Vine, supra, 118 Cal.App.4th at p. 591.) Here, defendants' moving papers argued not only that collisions with fences and rails and the unpredictable behavior of a horse are inherent risks of horseracing but also demonstrated why this rail-less green shadow wall did not increase the inherent risk of a horse colliding with it.


In Van Dyke v. S.K.I. Ltd. (1998) 67 Cal.App.4th 1310, a skier was injured when he struck a signpost directing skiers to the trail connecting the slope on which he was skiing to a chair lift. (Id. at p. 1313.) The trial court granted summary judgment on the defendant ski resort's primary assumption of the risk defense. (Id. at p. 1314.) The appellate court reversed. It acknowledged that directional signs are necessary to a ski area and that collisions with obviously visible equipment are inherent dangers in skiing. However, it concluded that the signpost at issue increased the inherent risk because it was placed where it was virtually invisible to skiers crossing the ski run to the connector trail, and it was small, steel, and of a color that made it blend into the background. (Id. at pp. 1315, 1317.) Van Dyke specifically contrasted the signpost to the large, highly visible ski lift tower that Connelly concluded did not increase the inherent risk of downhill skiing. (Connelly, supra, 39 Cal.App.4th at pp. 13-14.)


Plaintiff asserts that the green shadow fence at issue in this case was camouflaged by the foliage growing behind it. However, there was no evidence that he or any other Golden Gate Fields rider was unaware of the fence or that there had ever been complaints of riders having difficulty seeing it in its 20 years' existence. Indeed, how the rider negotiates the fence, as he or she heads the horse into the northbound backstretch from the south curve, "is consistent with, and enhances, the excitement and challenge of the active conduct of the sport" (Ford v. Gouin (1992) 3 Cal.4th 339, 345), comparable to an outfielder's negotiation of the outfield fence when he is reaching for a high fly ball or fielding a line drive. In fact, the challenge, and arguably therefore the excitement, are greater in thoroughbred horse racing than baseball because the athlete is maneuvering not only his own body to avoid the wall but the body of a much larger, headstrong, and unpredictable animal. The fence is thus an integral part of the sport, and, absent being constructed of a material that could increase the risk of an injury caused by a collision, e.g., wood rather than smooth plastic, does not increase the inherent risk of collision.


In Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal.App.4th 703, a college baseball pitcher was injured by a line drive struck by an aluminum bat. (Id. at p. 706.) The appellate court reversed a summary judgment in favor of defendants because the plaintiff presented sufficient evidence that the particular bat significantly increased the inherent risk in baseball that a pitcher would be hit by a line drive. Specifically, he presented evidence that the inventor of the bat believed it substantially increased this risk, and that the Pac-10 (the collegiate athletic conference to which the batter's college, University of Southern California, belongs) and the National Collegiate Athletic Association believed the bat created a significant issue of safety. (Id. at p. 713.)


Here, as already discussed, there was no evidence that defendants were ever alerted to an increased risk of collision because of the green shadow fence's color and lack of rail, or that the Racing Board, the riders at Golden Gate Fields, or the horse racing community generally had ever expressed such concerns.


Under the facts of this case, plaintiff's unfortunate accident was the result of one of the greatest risks inherent in the sport of horse racing: the inexplicable behavior of the animal which causes it to bolt and collide at full gallop with a stationary object. As such it falls within the doctrine of primary assumption of risk, and bars plaintiff's negligent premises liability cause of action against defendants.


 II. Causation


Even assuming defendants did not establish the complete defense of primary assumption of the risk, we conclude they are entitled to summary judgment because the evidence does not demonstrate causation.


Defendants moved for summary judgment on the alternative ground that plaintiff could not establish that their premises or their actions concerning the premises were a substantial factor in causing plaintiff's injuries. Causation, of course, is an essential element in any negligence cause of action, including premises liability. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767 (Saelzler ).) Legal cause, for purposes of a negligence action, exists if the defendant's conduct is a substantial factor in bringing about the harm, and there is no rule of law relieving the defendant from liability. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052.)


A defendant moving for summary judgment has the initial burden of showing that an essential element of the plaintiff's case cannot be established. (Saelzler, supra, 25 Cal.4th at p. 768.) The moving defendant may do so by pointing not only to affirmative evidence negating that essential element, but also to the absence of evidence to support the plaintiff's case. (Id. at p. 780.) Once the defendant does so, the burden shifts to the plaintiff to present evidence showing a triable issue of material fact. (Ibid.)

Defendants met their threshold burden of demonstrating that the rail-less green shadow fence was not a substantial factor in causing plaintiff's injuries. According to the undisputed evidence, after CooCooWalk was spooked, she "drifted" to the outside of the track and was rounding the southern curve at high speed. In racing parlance, a horse "drifts" when it is not going in the straight path the rider intends the horse to go. Plaintiff surmised she was trying to return to her stable via the southern chute, and thought that, given her speed and position on the outside, she "was never going to make" the sharp right-hand turn into the chute, situated between the end of the southern curve and the beginning of the backstretch. Therefore, he tried to correct her direction by pulling her head to the left so she would straighten out and instead proceed up the backstretch. Because he was unable to get her "straightened away" by the time they reached the chute, he released her head at a point very close to the green shadow fence, hoping that if he allowed her to see the fence she would not hit it. However, according to plaintiff, she was "going too fast" to avoid it. Plaintiff acknowledged that racehorses frequently drift, and that on numerous previous occasions the horse he was riding had collided with the green shadow fence. He also never asserted that the placement of the fence was improper, thereby implicitly acknowledging that some kind of barrier was necessary in the particular location of this fence in order to demarcate the course and prevent horses from running out of bounds.


Because these facts show an absence of evidence that CooCooWalk's collision with the fence was caused by any breach of defendants' duty to have constructed a different kind of fence, the burden shifted to plaintiff to demonstrate a substantial link or nexus between the nature and position of this particular fence and his injury. (Saelzler, supra, 25 Cal.4th at p. 778.)


Plaintiff relied primarily on the declarations of his experts as evidence of a triable issue of fact regarding causation. Plaintiff asked the experts, who included a veterinary ophthalmologist, neurobiology and anatomy professor specializing in color vision in mammals, and visual neuroscience researcher, to formulate opinions regarding the cause of his accident. All of them declared that the visual acuity and color vision of horses are inferior and diminished compared to that of humans, and therefore horses cannot distinguish colors as readily as humans. Horses also lack an ability to focus on near objects because of their peripheral vision. Given these visual limitations of a horse, the experts opined that a horse such as CooCooWalk would have difficulty perceiving the green shadow fence because from her perspective its color "probably" blended into the foliage behind the fence and the brown turf in front of it; that CooCooWalk perceived the green shadow fence as an opening in the track; that she did not recognize it as a distinct and impenetrable barrier or she would not have run into it; that defendants should have equipped the track or the fence with a visual cue to warn horses of the fence; and that a white fence and outer rail would have served this purpose.


Statements in supporting declarations presented in summary judgment proceedings are disregarded if those statements would be excluded under the rules of evidence as conclusions or impermissible opinion when offered by a witness at trial. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1119-1120.) "[P]roffering an expert opinion that there is some theoretical possibility the [defendant's breach of duty] could have been a cause-in-fact of a particular injury is insufficient to establish causation." (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108,1118 (Jennings ).) "Instead, the plaintiff must offer an expert opinion that contains a reasoned explanation illuminating why the facts have convinced the expert, and therefore should convince the jury, that it is more probable than not the [breach] was a cause-in-fact of the plaintiff's injury." (Ibid.) Expert testimony that posits a " 'mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.' " (Saelzler, supra, 25 Cal.4th at pp. 775-776.)


The value of opinion evidence does not rest on the conclusion reached but in the factors considered and the reasoning employed. (Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 563.) Expert opinions are purely conclusory if they are not accompanied by a reasoned explanation that connects the factual predicates to the ultimate conclusion, and as such have no evidentiary value. (Jennings, supra, 114 Cal.App.4th at p. 1117.) Similarly, "while expert criticism of the defendant's [safety] measures may establish abstract negligence, an expert's speculative and conjectural conclusion that different measures might have prevented an injury cannot be relied upon to establish causation." (Thompson v. Sacramento Unified School Dist., supra, 107 Cal.App .4th at p. 1373.)


These experts' conclusions that CooCooWalk would not have run into the fence had she recognized it as a distinct barrier, i.e., had it been white in color or had it been equipped with an outer rail, were too conjectural to satisfy the requirements for admissibility as evidence of causation. Their conclusions lack a reasoned explanation why, under the facts of this particular accident, CooCooWalk ran into this fence. The experts do not explain why, even though she had previously raced many times at Golden Gate Fields without incident, her lack of visual acuity prevented her from seeing the fence on this occasion, nor do they address why in the 26-year existence of the rail-less shadow fence--21 years with non-white redwood slats and five years with green plastic slats--there were no reports of any other racehorse colliding with the fence because it had difficulty seeing it. They do not account for the fact she was in an agitated state when she ran into the fence (notably, although they are undeniably experts in equine and/or mammalian vision, none of them is an expert in equine behavior), nor do they address whether, given her speed, location on the track, and the manner in which plaintiff tried to control her, she had any opportunity to see the fence at all, or at least in enough time to avoid it.


In fact, plaintiff presented contradictory evidence from another veterinarian. She wrote that when a horse is spooked, which can happen for reasons a rider may never know, its instinct is to run away from what it perceives as a danger or threat, and in so doing may run over the rider, " 'through your fences,' " or into large objects parked in its path, and that this " 'flight or fight' " instinct of a frightened horse makes it oblivious to anything or anyone around it, including self-inflicted pain.


The expert opinions on which plaintiff relies failed to tie the undisputed circumstances of this case with the general fact that horses have inferior visual acuity and color sense. Consequently, their opinions were no more than " 'mere possibilit[ies]' " (Saelzler, supra, 25 Cal.4th at p. 775) that the rail-less green shadow fence caused plaintiff's injuries. Because they did not suffice to demonstrate that it was more probable than not that the green fence was the legal cause of plaintiff's injury, they did not suffice to satisfy plaintiff's burden of showing triable issues of material fact on the element of causation. [FN3]


FN3. In his moving papers and at oral argument, appellant noted that Golden Gate Fields had an outer rail--not a fence--along the backstretch prior to 1972 or 1973 (at least 26 years before his accident), and that there has never been a Racing Board rule prohibiting a white fence or outer rail along the backstretch or a geographical impediment on Golden Gate Fields's terrain to such a fence or rail. To the extent he asserts this is evidence that the rail-less green shadow fence constituted a substantial factor in causing his injury, it is too speculative to establish causation on a premises liability theory, for the same reasons the expert opinions fail to do so.


 III. Products Liability


Plaintiff contends defendants are strictly liable for injuries caused by the rail-less green shadow fence under a design defect theory. He argues they designed, built and installed the fence to prevent a horse from injuring itself or a rider, and it failed to do so. However, plaintiff presented no evidence, other than his conclusory assertion that defendants placed this fence or the racing complex in the stream of commerce, a requisite element of such a cause of action. (Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 62.) Furthermore, the manufacturer must know the product will be used without inspection for defects. (Ibid.) It is undisputed that the Racing Board inspects Golden Gate Fields twice a year before it renews its license.


 IV. Continuance


Plaintiff contends the court abused its discretion in refusing him a continuance because he had not received defendants' interrogatory answers regarding whether they were "in the business" of designing race tracks, related to his strict products liability cause of action. Section 437c, subdivision (h), provides that if it appears from affidavits submitted in opposition to a motion for summary judgment that facts essential to justify opposition may exist but cannot then be presented, the court shall either deny the motion or order a continuance to permit discovery.


 The plain language of the statute obligates the court to order a continuance only if it determines essential facts may exist. Whether the trial court's determination that the supporting affidavit does or does not demonstrate the existence of such facts is measured by an abuse of discretion standard. (Frazee v. Seely (2002) 95 Cal.App.4th 627, 633.) Given the existing evidence that defendants were patently not manufacturers of race track fences or safety systems that they placed on the market without inspection, the court did not abuse its discretion in concluding that any further evidence was not essential to his opposition.



 The judgment is affirmed.

  2005 WL 995554 (Cal.App. 1 Dist.) Not Officially Published, (Cal. Rules of Court, Rules 976, 977)