Swigart v. Bruno
D071072
| Cal. Ct. App. | Jul 17, 2017Background
- Swigart and Bruno, experienced endurance riders, rode in a timed AERC endurance event (~49 riders). About 8 miles in, a seven-rider single-file group slowed at a checkpoint; Swigart dismounted to retrieve cards.
- While slowing, Bruno's horse bumped the rear of the horse ahead (Stevens's horse); that horse kicked, Bruno was thrown, his horse bolted left, sideswiped two horses and struck Swigart, injuring her.
- Swigart sued Bruno for negligence, recklessness/intention, and strict liability for having an animal with dangerous propensity. Trial court granted Bruno summary judgment.
- On appeal the court reviewed summary judgment de novo and examined over 40 minutes of ride video; it concluded primary assumption of risk barred negligence and that plaintiff failed to raise triable issues as to recklessness/gross negligence or dangerous propensity.
- Postjudgment, Bruno sought costs; the trial court taxed $1,962.50 related to locating an alleged witness (Jones). Bruno appealed the costs ruling but failed to provide a sufficient record; appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether primary assumption of risk bars negligence claim | Swigart: contact is not inherent to endurance riding; she did not assume risk of being struck by a fellow rider’s horse | Bruno: tailgating/contact is an inherent risk of endurance riding and he owed no duty to protect against such inherent risks | Held: Primary assumption of risk applies; negligence claim barred |
| Whether Bruno’s conduct was reckless or grossly negligent (so as to overcome primary assumption of risk) | Swigart: Bruno repeatedly rear-ended horses, ignored warnings, and continued — conduct was reckless/grossly negligent | Bruno: behavior was within ordinary range of the sport; no evidence of intentional or extraordinary recklessness | Held: No triable issue; conduct not shown to be so reckless or grossly negligent to defeat the defense |
| Whether Bruno’s horse had a dangerous/vicious propensity (strict liability) | Swigart: prior behavior during the ride and prior knowledge created a triable issue about dangerous propensity | Bruno: horse’s conduct was typical horse behavior in the sport, not a vicious propensity | Held: No triable issue; behavior was acting “as a horse,” not a dangerous propensity |
| Whether the trial court abused discretion in taxing $1,962.50 costs for locating witness Jones | Bruno: costs for skip-trace and surveillance were recoverable and court did not expressly find them unreasonable | Swigart: evidence showed "Grit Jones" did not exist; costs were unreasonable | Held: Bruno forfeited record-based challenge; in any event substantial evidence supported taxing the costs; no abuse of discretion |
Key Cases Cited
- Knight v. Jewett, 3 Cal.4th 296 (Cal. 1992) (distinguishes primary vs. secondary assumption of risk; primary risk bars duty for inherent dangers in sports)
- Avila v. Citrus Community College Dist., 38 Cal.4th 148 (Cal. 2006) (inherent risks include conduct forbidden by rules when such conduct is integral to the sport)
- Nalwa v. Cedar Fair, L.P., 55 Cal.4th 1148 (Cal. 2012) (primary assumption of risk can support defense summary judgment)
- Kahn v. East Side Union High School Dist., 31 Cal.4th 990 (Cal. 2003) (duties vary by role in sport; analysis of increased-risk conduct)
- Cheong v. Antablin, 16 Cal.4th 1063 (Cal. 1997) (assumption of risk among coparticipants)
- Levinson v. Owens, 176 Cal.App.4th 1534 (Cal. Ct. App. 2009) (horseback riding is inherently dangerous; horse acting as a horse is not unusual)
- Denham v. Superior Court, 2 Cal.3d 557 (Cal. 1970) (appellate burden to provide adequate record; orders presumed correct)
- Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826 (Cal. 2001) (summary judgment burdens and shifts)