17-CIV-04843 SHELLY PLATH VS. MARIA MEDEIROS, ET AL

SHELLY PLATH MARIA MEDEIROS
REUBEN J. DONIG ANGELA F. STOREY

DEFENDANT, PALO MAR STABLES INC’S MOTION FOR SUMMARY JUDGMENT TENTATIVE RULING:

Defendant Palo Mar Stables, Inc.’s motion for summary judgment is GRANTED. Defendant has demonstrated that there are no disputed issues of material fact and that it owed no duty to Plaintiff under the doctrine of primary assumption of the risk. Because Plaintiff cannot show that Defendant owed her a duty, Defendant it is entitled to judgment as a matter of law.

The facts of this case are not in dispute. According to Plaintiff’s complaint, on the evening of October 25, 2015,

[P]laintiff was on the premises of the PALO MAR STABLES, there to visit with defendant ROBIN [HOWLAND] and/or to tend to her own horse. As she walked on the premises, she walked past the vicinity of [Ms. Howland’s horse,] Valentino, who was at that time not properly in his stable or corral and who was not under the control of defendant [HOWLAND] or any other person.

At said time and place, defendant MEDEIROS’ dog, Laika, ran freely up to and around Valentino, causing Valentino to become frightened and “spooked” and to run, lash out, and kick about wildly.

In so acting and behaving, Valentino struck, kicked, and otherwise struck plaintiff on and around her body, causing her serious and permanent injuries.

The parties do not dispute that, “At the time of the incident Palo Mar Stables was a selfcare stables where the owners of the horses were responsible for their care.” [Defendant’s UMF ¶ 38] The parties also do not dispute that Palo Mar had a no dogs policy. [Id., ¶ 3] Finally, the parties do not dispute that, immediately prior to the incident, Plaintiff got a wheelbarrow, loaded it up with hay for the horses, and was preparing to feed them. [UMF, ¶ 30]

Defendant contends that Plaintiff assumed the risk of the activities necessary to feed the horses at Palo Mar. According to Defendant, “Feeding the horses by its nature requires intermingling with the horses in their individual stalls and in the stable.” [MPA, p.8] Defendant claims that, because Plaintiff assumed the inherent risk of being in close proximity to horses while caring for them and because there was no special or organized relationship between the parties, it had no duty to Plaintiff.

Plaintiff raises a number of points in opposition to Defendant’s motion. With respect to application of the doctrine of assumption of the risk, the thrust of Plaintiff’s argument is that Defendant improperly considered Plaintiff’s subjective state of mind in its analysis. Plaintiff, however, largely omits its own analysis of assumption of the risk. Instead, Plaintiff asserts general principles and argument relating to premises liability and foreseeability of injury. Plaintiff does assert that “dodging loose horses in a barn” is not inherent “in the sport of horseback riding, or in walking onto the premises of a stable.” [Opposition, p.5] As set forth below, however, Plaintiff’s suggestion that feeding and caring for horses does not present an inherent risk of harm is ultimately unpersuasive.

The doctrine of primary assumption of the risk operates to relieve a defendant of a duty where a plaintiff is injured due to a risk that is inherent in the activity in which the plaintiff chose to participate. Luna v. Vela (2008) 169 Cal.4th 102, 111-112. The doctrine applies where, due to the nature of the activity and the relationship of plaintiff and defendant to that activity, defendant’s ordinary duty of care is negated. Knight v. Jewett (1992) 3 Cal.4th 296, 314-315. Defendant asserts the present case is analogous to cases that have addressed the doctrine of assumption of the risk in the context of an injury sustained as a result of horseback riding. Defendant notes that in Harrold v. Rolling J Ranch, 19 Cal. App. 4th 578, 586–88 (1993), the court affirmed summary judgment in favor of a stables owner after determining that the rider’s assumed the risk inherent in horseback riding, notwithstanding the fact that the owner knew of one previous occasion in which the horse had “spooked” and thrown a rider. In doing so, the court stated as follows:

Public policy supports not imposing a duty on commercial operators of horse renting facilities which provide supervised trail rides, to supply “ideal” horses, but we stop short of eliminating any duty such as a duty to warn of a dangerous propensity in a given horse. However, the one prior incident of the subject horse having spooked does not rise to the level of a dangerous propensity, in our opinion. It does rise to the level of a “horse behaving as a horse” with no incumbent duty on the part of the stable operator. In our opinion, to impose some sort of duty on a lessor of horses when a “horse acts as a horse” is to tell the commercial world that strict liability is imposed for any action of a horse inherent in horseback riding, with the concomitant result that in all probability all commercial horseback riding will cease because of the risk involved to those that are self-insured or by reason of the prohibitive expense to obtain liability insurance for such an enterprise.

[Id.]

Defendant also cites Levinson v. Owens, 176 Cal. App. 4th 1534, 1546–50 (2009). In that case, a social guest who was injured after falling off a horse, “Pistol,” while attending a party at a ranch brought negligence action against the ranch owners. The court affirmed summary judgment in favor of the ranch owners after determining that the Plaintiff assumed the risk inherent in horseback riding. In reaching this determination, the court noted that “The only legal conclusion to be drawn from all of this is that plaintiffs failed to present a triable issue of material fact tending to show that Pistol was an ‘unduly dangerous’ horse, rather than a horse simply acting as a horse when he uncharacteristically galloped off and Levinson was injured.” Id., at 1549.

The present case is analogous to Harrold v. Rolling J Ranch and Levinson v. Owens. The nature of the activity at issue in this case – tending to horses roaming freely around a stable – presents no less of an inherent risk than that involved in horseback riding. Whereas the inherent risks of horseback riding are being bucked or thrown by the horse, the inherent risk of tending to horses is being kicked or stomped. Both activities present the inherent risk of a “horse behaving as a horse.”

Further, in comparison to Harrold v. Rolling J Ranch, there is an even more tenuous relationship between Plaintiff’s activity and Defendant in this case. Unlike the defendant in Harrold v. Rolling J Ranch, Palo Mar did not provide a commercial ride to Plaintiff. Indeed, Plaintiff alleges no organized relationship between her and Palo Mar. Plaintiff contends that “PALO MAR’s relationship to Plaintiff was as a premises owner, rendering upon it the duty to manage its property so as to eliminate obvious, foreseeable dangers.” [Opposition, p.1] Accordingly, Plaintiff alleges no relationship between her and Palo Mar other than that of property owner and invitee.

Notably, Plaintiff does not discuss or attempt to distinguish Harrold v. Rolling J Ranch or Levinson v. Owens. Although Plaintiff contends that Defendant “relies primarily on preKnight law,” both of these cases were decided after Knight. [Opposition, p.1] Further, Plaintiff has not presented a single authority, from California or elsewhere, in which the owner of horse stables has been found liable for injuries caused by a horse under a theory of premises liability. Plaintiff’s suggestion that tending to horses does not present an inherent risk of harm, without any supporting authority, is unpersuasive.

Plaintiff relies on McGarry v. Sax, 158 Cal. App. 4th 983, 994 (2008), a case in which the court found that the doctrine of primary assumption of the risk applied to negate any duty that defendant owners of a skateboard store may have owed to the plaintiff, who was injured in a melee after a professional skateboarder threw a skateboard into a crowd of spectators. The portions of the opinion quoted by Plaintiff, however, are contained in the court’s analysis as to the foreseeability of harm to the plaintiff. Plaintiff does not address the court’s analysis with respect to the plaintiff’s assumption of the risk. This fact is particularly unhelpful to Plaintiff considering that, in McGarry, the court ultimately found that “The determination of duty in this case does not hinge on foreseeability but rests on a consideration of the nature of the activity and the relationship of the parties to that activity.” Id., at 1000. As in McGarry, the pertinent issues here are the nature of Plaintiff’s activity and the relationship of the parties to that activity. Plaintiff’s focus on the foreseeability of injury, and her reliance on McGarry, are misplaced.

To the extent that Plaintiff contends Palo Mar had knowledge that Valentino was particularly dangerous, Plaintiff presents no admissible evidence in support of that claim. According to Plaintiff’s UMF ¶ 60, “Ted Vlahos [owner of Palo Mar] knew three to four months prior to the accident that Valentino posed a danger to others due to his tendency to kick.” As support for this proposition, Plaintiff cites to her deposition, where she testified that in response to Mr. Vlahos’ query as to whether she had seen Valentino acting out, she stated “Yes, you know, I have seen Valentino get aggressive with people, you know, and you just have to learn to get out of the way when he gets that way.” [Plath Depo., p.108:6-8] Plaintiff’s self-serving testimony is clearly hearsay, and Plaintiff has not suggested any exception to hearsay that would render her statement admissible. Further, even if the statement was admissible, it does not show that Valentino was, in fact, unusually dangerous. Notably, unlike the plaintiff in Harrold v. Rolling J Ranch, Plaintiff has presented no evidence of any specific prior incidents involving Valentino.

Plaintiff also objects to Defendant’s separate statement, claiming that it is not codecompliant because it “consists of numerous run-on sentences full of numerous facts.” [Opposition, p.4] As noted by Plaintiff, however, the court has discretion to consider a separate statement that does not meet statutory guidelines. Further, even if the court could determine that the separate statement was not code-complaint, Plaintiff identifies no prejudice resulting from the compound factual statements.

Finally, Plaintiff contends that “A disputed material fact remains . . . as to Ms. Howland’s employment status at PALO MAR.” [Opposition, p.12] Plaintiff, however, has not explained why this fact is material to the dispute between these parties. Plaintiff asserts a direct theory of liability with respect to Defendant Palo Mar. Accordingly, whether Defendant Howland was an employee of Defendant Palo Mar is not relevant to the court’s determination of the present motion.

Objections to Evidence:

Defendant objects to Plaintiff’s evidence contained in the declarations of Timothy O’Byrne and Reuben Donig.

Defendant’s objections numbers 1 through 11 attack the foundation and relevance of Plaintiff’s witness, Timothy O’Byrne. The objections are OVERRULED. Mr. O’Byrne has laid an adequate foundation for his opinions. Mr. O’Byrne’s CV indicates the experience and qualifications upon which he bases his knowledge of horse handling. The court notes, however, that it reaches the same conclusion irrespective of the rulings on these objections. Notably, Mr. O’Byrne’s declaration contains no opinions with respect to the specific facts of this case.

Defendant’s objection number 12 is SUSTAINED. Plaintiff’s testimony that “Mr. [Vlahos] told me himself that he didn’t want dogs on the property because he felt like that they would you know, unsettle the horses” is hearsay. Defendant’s objection number 13 is SUSTAINED. Plaintiff does not identify what the documents are or who made them. Accordingly, the documents lack foundation and authentication. Further, Plaintiff has not explained how the documents are relevant to this motion.

Defendant’s objection number 14 is SUSTAINED. Plaintiff has not explained how this code enforcement letter is relevant to this motion.

Defendant’s objection number 15 is OVERRULED. Defendant’s objection number 15 is not an objection to evidence. The adequacy of Defendant’s separate statement has been addressed above.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Defendant Palo Mar shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.