Case Number: BC708578 Hearing Date: January 15, 2020 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

RAQUEL TROPE, ETC.,

Plaintiff(s),

vs.

PEAM LLC, ET AL.,

Defendant(s).

Case No.: BC708578

[TENTATIVE] ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

Dept. 3

1:30 p.m.

January 15, 2020

1. Background Facts

Plaintiff, Raquel Trope, a minor by and through her GAL, Konrad Trope, filed this action against Defendants, Peam LLC dba Paddock Riding Club, Allison Hilton, Aian Johnson, and Julie Sloan dba Sagebrook Farms for damages arising out of injuries sustained when a horse spooked and she fell off the horse.

2. Motion for Summary Judgment

At this time, Sloan dba Sagebrook moves for summary judgment, contending the action is barred by the doctrine of primary assumption of the risk.

a. General Law Governing Assumption of the Risk

Assumption of risk falls into two categories: primary and secondary. Primary assumption of risk occurs when a plaintiff voluntarily engages in a sport or activity with inherent risks. It embodies those instances where there is a legal conclusion that there is no duty on the part of the defendant to protect the plaintiff from that particular risk. Secondary assumption of risk embodies 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. Secondary assumption of risk cases are merged into the comprehensive comparative fault system, requiring that the trier of fact determine the relative responsibility of the parties in apportioning the loss. Balthazor v. Little League Baseball, Inc. (1998) 62 Cal.App.4th 47, 49.

In the context of primary assumption of the risk, liability should attach only when the defendant has increased the risks to a participant over and above those inherent in the sport. Courts look to the nature of the activity or sport at issue and the relationship of the defendant and the plaintiff to that activity or sport to determine if a defendant owes a duty to protect a plaintiff from the particular risk of harm. Id. at 50. Cases in which a duty was found include where, for example, an instructor gave specific directions to the participant which increased the risk of harm inherent in the sport. The rationale is that where the defendant has acted so as to increase the risk of harm inherent in a particular sport, he/she should not be able to thereafter rely on the primary assumption of risk doctrine. Id. at 51.

In Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8, the court declined to hold that a ski resort had a duty to decrease the risk of injury by padding the ski lift towers. In Balthazor, the court held that the Little League’s failure to require additional equipment (a face guard) did not increase the risk inherent in the sport – i.e., the risk that a player might be struck by a carelessly thrown ball.

Whether a defendant owes a duty of care to protect a plaintiff from the risk that resulted in the injury turns on the nature of the activity in which the defendant was engaged and the relationship of the parties to the activity. Knight v. Jewett (1992) 3 Cal.4th 296, 309. The existence and scope of a defendant’s duty of care is a legal question for the Court to determine. Id. at 313. Thus, determinations regarding the elements on which the existence of the duty depends also present questions of law. When the injury occurs in a sports setting, the Court must decide whether the nature of the sport and the defendant’s relationship to the sport – as co-participant, coach, premises owner or spectator – support the legal conclusion of duty. Id.

“As a general rule, persons have a duty to use due care to avoid injury to others, and may be held liable if their careless conduct injures another person.” Id. At 315. In the sports setting, however, conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport. In this respect, the nature of the sport is highly relevant in defining the duty of care owed by the particular defendant. Id.

Generally, defendants have no legal duty to eliminate risks inherent in the sport itself, but they have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport. Id. at 315-316. In some activities, the careless conduct of others is treated as an inherent risk of the sport, thus barring recovery by the plaintiff. For example, a baseball player may not recover if he or she is injured by a negligently thrown ball, and a basketball player may not recover for an injury caused by a negligently extended elbow. Id. at 316.

Under Knight, whether a defendant owes a duty of care to the plaintiff does not depend on the plaintiff’s subjective knowledge or appreciation of the potential risk of being injured. Rather it turns on whether the defendant had a legal duty to avoid such conduct or to protect plaintiff against that particular risk of harm. Id. at 316 317.

b. Initial Note

Co-Defendant, Peam LLC dba Paddock Riding Club, filed an opposition to the motion for summary judgment. Peam contends Sloan is not entitled to judgment as a matter of law because Peam has a cross-complaint for contractual indemnification pending against Sloan. Peam provides evidence that Sloan entered into a contract with Peam pursuant to which Sloan must indemnify Peam for damages such as those incurred by Plaintiff in this case.

Sloan is NOT moving for summary judgment on the cross-complaint. Sloan is moving for summary judgment on the complaint only. The cross-complaint for contractual indemnification will remain pending regardless of the outcome of the ruling on this motion.

c. Undisputed Facts

The basic facts relating to the incident are not in dispute. Plaintiff was a riding student with Sagebrook, which is owned by Sloan. Non-party JoElla Griffith was an independent contractor with Sagebrook, and was conducting Plaintiff’s lesson at the time of the incident. The facility is owned by Peam.

Plaintiff and Griffith were conducing their lesson in Ring 2, while Defendants Hilton and Johnson were in an adjacent sand ring. Hilton and Johnson were taunting a pony in the sand ring, using a whip and causing the pony to be scared. Because Hilton and Johnson were doing this, Griffith kept Plaintiff in the far end of Ring 2, away from the sand ring, to ensure she would be safe.

At some point during the lesson, Griffith looked over at the sand ring and saw the pony standing peacefully. She did not see the children who had been taunting the pony, but did not go over to ensure the children were gone. Believing the area to be safe, Griffith had Plaintiff commence trotting across the entirety of Ring 2. As Plaintiff and her horse approached the sand ring, the children abruptly whipped the pony, causing the pony to rear up. This in turn caused Plaintiff’s horse to spook, throwing Plaintiff off the horse.

b. Cases Cited by Parties in Connection with Motion and Opposition

The parties cite various cases decided in the horseback riding context in support of the motion and opposition. Defendant relies on Harrold v. Rolling J. Ranch (1993) 19 Cal.App.4th 578, 588 in support of her position that Griffith’s conduct did not breach any duty to Plaintiff. Plaintiff relies on Tan v. Goddard (1993) 13 Cal.App.4th 1528, 1534-35 and Galardi v. Seahorse Riding Club (1993) 16 Cal.App.4th 817, 823. The Court has read and considered these cases in ruling on this motion.

In Harrold, the plaintiffs were members of the defendant resort. The resort offered horseback riding lessons to its members. One of the members, during the ride, decided to give her jacket to another rider. While she was doing so, her horse suddenly spooked. Notably, the same horse had suddenly spooked on a prior ride when a rider took off a hat during the ride. The trial court granted summary judgment, and the court of appeals affirmed. The court of appeals ruled:

The general principle which may be extracted from this discussion in Jewett is that commercial operators of sports and recreational facilities owe a duty of care to their patrons. In general terms, that duty is to ensure the facilities and related services which are provided do not increase the risk of injury above the level inherent in the sport or recreational activity itself. A *587 commercial operator violates this duty if, for instance, it sells or rents its patrons defective equipment which aggravates the patrons’ risk of injury.

The recreational activity here, of course, was horseback riding, specifically supervised trail riding with horses rented from the commercial operator of this horse-riding recreational service and with “wranglers” the operator employed to guide and supervise the trail ride. The commercial operator received compensation from the riders, both for renting them the horses and supplying them with “wranglers.”

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. A horse can stumble or rear or suddenly break into a gallop, any of which may throw the rider. But this does not necessarily mean the commercial operator of the horse-riding facility owes no duty of care to those who rent its horses and can never be liable for injuries suffered because a horse stumbles, rears, or suddenly breaks into a gallop. The commercial operator has a duty to supply horses which are not unduly dangerous.2 Furthermore, the operator owes the duty to warn the patrons renting a given horse if that horse has evidenced a predisposition to behave in ways which add to the ordinary risk of horse riding.

This level of duty is consistent with duties owed by commercial operators of other forms of recreational facilities such as ski resorts. Skiing is an inherently dangerous sport. But this does not mean ski resort operators avoid owing a duty to skiers to supply them with nondefective ski lifts and trails. (Sunday v. Stratton Corp. (1978) 136 Vt. 293 [390 A.2d 398] [ski resort owes duty to skiers to properly groom novice trail]; cases collected in Annot. (1979) 95 A.L.R.3d 203.) Nor does the inherent danger which goes along with participating in or watching other sports mean the commercial operators of facilities offering these activities owe no duty of care toward participants or spectators. (Meistrich v. Casino Arena Attractions (1959) 31 N.J. 44 [155 A.2d 90, 82 A.L.R.2d 1208] [ice rink owes duty to skaters not to supply unusually hard and slippery ice]; Rosenberger v. Central Lousiana Dist. Livestock Show, Inc. (La. 1975) 312 So.2d 300 [rodeo arena owes duty to spectators regarding operation and maintenance of arena].)

Likewise, a whole host of duties can be ascribed to commercial providers of horse-riding facilities, i.e., not to provide faulty saddles, bridles and other equipment, not to provide dangerous trails, not to provide horses that are shodded poorly-and the list can go on and on. However, in this case we stop short of imposing a duty on stable owners to provide “ideal” riding horses such that they never buck, bite, break into a trot, stumble or “spook” when confronted by a frightening event on the trail such as a shadow or snake or react to peculiar movements of a rider such as excessive spurring or waving of a coat as in this case. We view sudden movements of a horse just as inherent in horseback riding as the presence of moguls on a ski slope are to skiers.

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 concomitatant 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.

We might add that here there indeed was evidence plaintiff rider had been contributorily negligent. She took her hands off the reins for a moment to unselfishly remove her coat to hand to a co-rider, a young girl, who was complaining of the cold. But this act of contributory negligence is immaterial as the Supreme Court has taught us in Jewett. Consequently, we are unwilling and do not impose on purveyors of horse rides a duty when a horse “acts” as a horse, any more than we would impose a general duty on commercial small boat operators when a wave suddenly moves a boat causing a passenger to be unbalanced and injured.

In Tan, the plaintiff wanted to become a jockey. He enrolled in the defendant’s school, and the school told him the horse he would be riding was injured, and he should only ride the horse easily to see how it was. The plaintiff did so, and found the horse to be off. He reported this to his trainer, who assured him the horse would be fine. This happened several times. Ultimately, the trainer told the plaintiff to ride the horse “backwards,” meaning in the ring but in the opposite direction of typical travel. The area on the track was very rocky. The horse stepped on something and its front legs gave way; the horse went down, causing the plaintiff to sustain injuries. The trial court granted the defendant’s motion for summary judgment, and the court of appeals reversed. The court of appeals held:

Our case is different. Here, we do not deal with the relationship between coparticipants in a sport, or with the duty that an operator may or may not owe to a spectator. Instead, we deal with the duty of a coach or trainer to a student who has entrusted himself to the former’s tutelage. There are precedents reaching back for most of this century that find an absence of duty to coparticipants and, often, to spectators, but the law is otherwise as applied to coaches and instructors. For them, the general rule is that coaches and instructors owe a duty of due care to persons in their charge. (citations).

…

According to his testimony and declaration, Tan placed himself in the hands of the jockey school’s riding trainer. He did what the instructor, Davis, told him to do. Davis was not a coparticipant in sport with Tan, but was charged with instructing him how to ride a horse. It was Davis who assigned Faraway Falcon to Tan to ride, knowing that the horse was “off” due to an injury; it was Davis who told Tan to jog the horse on the outer track on the school’s premises; and it was he who knew, or should have known, of the rocky condition of that track.

We conclude that under the circumstances presented by the summary judgment papers, reasonably construed in appellant’s favor, Davis’s role as riding instructor to Tan was such that he owed Tan a duty of ordinary care to see to it that the horse he assigned Tan to ride was safe to ride under the conditions he prescribed for that activity. His failure to do so is analogous to the example, cited in Knight, of the duty of the ski resort operator to use due care to maintain its towropes in a safe condition. (Knight v. Jewett, supra, 3 Cal.4th at p. 316.) The responding papers on the motion set up a triable issue of material fact on his breach of the instructor’s duty, with resulting danger. Goddard’s liability, of course, is on a respondeat superior theory.

Finally, in Galardi, the plaintiff was riding a horse at the defendant riding club, and was preparing for an upcoming horse show. The plaintiff was practicing a one-stride jump combination, and the instructor repeatedly raised the height of the jumps on the course. The plaintiff was concerned, but did the jumps. During the second jump, the horse was unable to stride and popped into the air, causing the plaintiff to sustain injuries. The trial court granted summary judgment, and the court of appeals reversed. The court of appeals relied primarily on Tan, supra, in reversing the summary judgment ruling.

d. Analysis

Notably, to the extent Goddard and Galardi purport to use an ordinary negligence standard in connection with coaches and instructors, the standard had been overruled by Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1007 and various other cases, which make clear that the instructor has a duty to refrain from intentional or reckless misconduct, but cannot be held liable for ordinary negligence.

The Court finds, under the facts of the case, that summary judgment must be granted. In Goddard and Galardi, the defendant instructor actively did something to increase the risk inherent in the sport. In the instant case, the instructor looked over to see if the pony was causing a problem, saw the pony standing still and appearing peaceful, and went on with the lesson. While the instructor certainly could have gone over and ensured the children taunting the pony were gone from the area, a failure to do so amounts, at most, to ordinary negligence. It is certainly not intentional misconduct, and it also does not rise to the level of reckless disregard. A horse becoming spooked is a risk inherent in the sport, and Griffith did nothing to increase that risk. The motion for summary judgment is therefore granted.

Moving Defendant is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.