Case Number: BC506137 Hearing Date: February 13, 2015 Dept: NCE
Motion of defendant Horse Services, Inc. dba Griffith Park Horse Rentals for summary judgment is denied.

As to the affirmative defense of primary assumption of the risk:
In Knight v. Jewett (1992) 3 Cal.4th 296, 320, the California Supreme Court held that once it is determined that a plaintiff is participating in a sport or recreational activity, such as horseback riding, defendants have “a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.” The Court set out the following standard: “We conclude that a participant in an active sport breaches a legal duty of care to other participants – i.e., engages in conduct that properly may subject him or her to financial liability – only if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.”

In Levinson v. Owens (2009) 176 Cal.App.4th 1534 and Harrold v. Rolling Ranch (1993) 19 Cal.App.4th 578, the courts instructed that the duty not to increase the risk inherent in horseback riding did not include a duty to protect riders from the risk of injury inherent in a horse behaving as a horse. However, they agreed that the duty not to increase the risk would be breached if the commercial operator supplied a “dangerous” horse, defined as a horse with a dangerous propensity which it demonstrated more than once. The Harrold court further remarked that a commercial operator of sports and recreational facilities violates the duty not to increase the risk “if, for instance, it sells or rents its patrons defective equipment which aggravates the patrons’ risk of injury.” 19 Cal.App.4th at 587.

Here, plaintiff submits evidence that the horse was not saddled by the supervisor for horse services, but by a young boy, and that the blanket, saddle and cinch were not adjusted at the platform. [Response to UMF Nos. 30, 33, 34, and evidence cited.] He also submits evidence that Mohtadi fell of the horse when the saddle slipped to the right, which can happen when the cinch is not sufficiently tightened, and that since 2003, saddles had rotated to the side on horses being ridden by Horse Services customers on 18 occasions. [Additional Facts Nos. 3, 5.] The Bergen Declaration states that the cinch was not properly adjusted by Horse Rentals personnel which endangered plaintiff. The theory is not that plaintiff was injured by anything the horse did while being a horse, or that the horse was unsafe or dangerous. Plaintiffs’ theory appears to be that the risk of harm was increased due to equipment failure or due to reckless conduct in allowing young unsupervised and untrained individuals saddle the horse. Therefore a triable issue of fact is raised as to whether defendant, a commercial operator of a horseback riding facility catering to riders of all skill levels, increased the risk of injury above that inherent in the sport by failing to ensure that a qualified employee saddled the horses and performed necessary safety precautions, and/or inspected equipment to ensure its condition, despite several accidents having occurred in the past.

As to the affirmative defense of express release:
Defendant has failed to meet its initial burden of establishing that it did not engage in gross and willful negligence, to which the release expressly does not apply. See Eriksson v. Nunnick(2011) 191 Cal.App.4th 826. Whether conduct constitutes gross negligence is ordinarily a question of fact and summary judgment can only be entered if the court finds that a plaintiff’s evidence, if credited by the trier of fact, could not support a reasonable inference that defendant acted with gross negligence. The moving papers do not address gross negligence at all.

Even had the burden shifted, defendant failed to meet it. There is no evidence that cinches loosen naturally without negligence or that there is some reason why these facts more accurately constitute merely a breach of the some standard of care not giving rise to extreme indifference to safety concerns. No evidence is presented concerning the proper way to cinch a saddle, who at defendant’s premises may saddle a horse, whether there are written procedures or training on saddling for defendant’s employees and whether the individual involved in saddling the subject horse should have been doing so. Instead, there is evidence that a horse was saddled by a young boy who may not have been trained and who may have failed to properly tighten the cinch, an important part of the safety equipment, when defendant knew accidents of the sort involved here had happened before on several occasions. Even if the burden shifted, plaintiff has raised triable issues of material fact which could support a reasonable inference that defendant engaged in gross negligence. [See Response to UMF Nos. 30, 33, 34; Additional Facts Nos. 1-5, and evidence cited.]