*1 Dist., B036168. Second [No. Div. Seven. Oct. 1993.] al., CHARLENE I. HARROLD et Plaintiffs and Appellants, al., ROLLING J RANCH et Defendants and Respondents.
Counsel Shernoff, Scott & Bidart Marian H. for Plaintiffs and Tully Appellants. Warner, Brown, Combs & Thurber and David K. Thurber Cassidy, Defendants and Respondents.
Opinion
(Fred),
WOODS
This
is one
several
appeal
implied assumption
J.
the risk cases which the
Court remanded for reconsideration
Supreme
Jewett
v.
834 P.2d
Knight
than a dozen other of the risk while implied cases it deci- assumption Jewett, ded v. supra, and Ford Gouin Cal.4th Knight 339 [11 30, 834 P.2d In those court Cal.Rptr.2d opinions the determined high 724]. implied of the risk had assumption survived How- comparative negligence. ever, a of the court the definition of “plurality” rejected implied assumption *4 of the risk we had used in the instant in case Instead of the deciding 1989. plaintiff’s state of mind the subjective plurality ruled the should shift inquiry to the in defendant’s to the the duty context of the which plaintiff activity was if we conclude no engaged. Only defendant owed plaintiff does the of the risk implied defense as a assumption operate owed, bar complete cause If plaintiff’s of action. was then reasonable or plaintiff’s unreasonable of the assumption risk defend- ant had created is one of the factors in the merely negligence comparative equation. case, the Jewett test to the
Applying plurality’s facts of the instant we conclude a stable term short trail rides to riders riding offering casual owes to those to whom it rents horses to minimize the risk harm—or at least not to safe aggravate horses or risk—by supplying reasonably riders of the warning of those which But propensities danger. under pose the peculiar facts of this very close case that did not materialize. We further under conclude Jewett that the risk bars primary assumption as a matter of law. plaintiff’s recovery Proceedings
Statement of Facts and Below The is based on facts following summary allegations plaintiff’s which were not evidence at complaint by controverted defendant’s the as as well evidence adduced connection summary judgment proceeding with the judgment motion. summary and John September plaintiffs Charlene Harrold (collectively Harrolds)
referred to as the of a became members resort owned defendant by Adventures, Great (GOAA). Outdoor American Inc. In November Harrolds took a weekend vacation at GOAA’s resort.
There, the Harrolds learned offered GOAA horseback to its mem- bers at stables. The stables were nearby operated defendant J Rolling Ranch. Harrold, friends,
Charlene two of her and two girls chose young go horseback GOAA J riding. stables. transported group Rolling There, the members were their choice of horses. Ms. Harrold group given but, one horse initially chose after some selected another misgivings, horses, to ride for After day. the riders selected their J Rolling employees saddled the horses.
The five riders were escorted wranglers. wrangler two One rode at the head of the and the other end. The at the were group wranglers employed by ride, J. Before the riders were on certain Rolling starting instructed basics of horseback how to such as and command horse. riding, signal also riders were warned not to run the horses. ride,
About 20 to minutes into the one of the girls young complained she was cold. Ms. Harrold decided to give she jacket wearing ride, young girl. Having no with the horse experienced problems during Ms. Harrold then reins around saddle horn. She started to wrapped remove her from her shoulders. jacket *5 her, her
While both of arms were in the sleeves and behind still caught tried, unable, but to Ms. Harrold remain on the suddenly spooked. time, When horse. the horse bucked for the second Ms. Harrold panicked was thrown her to on tailbone. ground landing Harrold, ride, a
Unbeknown Ms. on same horse had previous and thrown a rider when that rider took waved off and a hat. spooked Defendants neither warned Ms. Harrold of this nor did incident prior they retrain to avoid of a the horse the recurrence similar incident. GOAA, J, commenced an action against Harrolds defendants Rolling
and Jack Suderman defendants failed to warn Ms. alleging negligently to throw Harrold of her horse’s unstable and riders temperament tendency her also and failed to with a safe horse to ride.1 The Harrolds alleged provide failed defendants maintained their and to warn premises willfully negligently condition. property’s dangerous defendant, 1Although any named as a the record does not contain documents filed on Mr. or, so, complaint There is no he was served with the that Mr. Suderman’s behalf. indication Accordingly, Suderman answer. future are intended to filed an all references defendants only Rolling and include GOAA J. and, alia, a Defendants answered denial inter filing general raised the by affirmative defense of of risk. Defendants moved assumption subsequently for on this affirmative defense. Defendants summary judgment solely argued Harrold, rider, Ms. virtue of her a as knew the risks experience involved in horseback and assumed such risks when she voluntarily commenced the ride.
The evidence before the trial court concerning summary judgment However, motion showed Ms. Harrold had with horses. prior experience evidence was in conflict as to of her degree expertise. knew
Ms. Harrold how left horse to the and make it guide right, stop, trot, and and how to bridle saddle horse. In a note gallop, prepared occurred, the stables how the accident “I Ms. Harrold wrote: am explaining an rider and I I was the experienced understand that second thrown person I same horse. even the are guess best thrown. . . . Accidents In her happen.” Ms. Harrold her reference to “the deposition, best explained Rather, thrown” was not being intended to refer to was a herself. it general Further, comment referring rider.” she considered “any good person be an rider if she could saddle ride a experienced horse.
The evidence also showed Ms. Harrold rode a never horse more often than month, once a she had been a never member of a riding club academy, Further, and she had never taken care of off horses or fallen of one. she rode with one of her adult always sons. she had ridden Additionally, horse once in the five years accident. preceding motion,
The trial court granted the summary judgment stating: “Maybe it’s because of I have a little too much of . . disadvantage. . horses, and that’s I think when are why on horse and you get you going *6 outdoors, over, ride on the whether there are all are wranglers you [szc] a risk that fall off assuming you can the horse.” The Harrolds timely appealed.
Discussion
I. Standard Review. of The standard of review for is well Where summary settled. judgments defendants move for their declarations admissible judgment, summary evidence either must a establish defense action or complete plaintiff’s a element of the and demon conclusively negate necessary plaintiff’s case strate, action, under cause no any of material factual issue resolution requires
584 (DeRosa 1390, trial. by v. Transamerica TitleIns. Co. 213 Thus, 370].) 1395 is Cal.Rptr. here summary judgment proper [262 only the defendants are entitled to raise the of the legally risk defense assumption and have established all conclusively of the elements of necessary that defense.
II. The Implied Assumption the Risk Jewett. of After Defense
While there is a schism recognizing analytical on our profound high doctrine, court as to of the risk reexamine assumption we and decide this case under the view which holds the plurality critical is whether the inquiry stable of owes a care to riders rent horses for who trail rides. Jewett, Having been well high focused court on the element of in unlike our we now are previous holding, conclude there no triable issues as to whether of the risk an assumption defense constitutes absolute bar appellants’ action. we Accordingly, summary judgment proper affirm judgment. Jewett,
Under the in the decision in analysis adopted “plurality” of the is an assumption risk absolute when defense public policy dictates the class of which defendant is a member should owe no duty care to the class of which is a in relation to plaintiff member in activity which they are involved. According analysis, to this does not inquiry risk, with begin whether the assumed the in question plaintiff instance the whether this rider question subjectively comprehended risk this precise horse was Rather the particular easily spooked. inquiry an begins—and ends—with of whether the owed a analysis defendant after factors such as those listed Rowland v. assessing Christian Cal.2d 443 P.2d Cal.Rptr. A.L.R.3d 496]. This is the form of analysis itself used Jewett to plurality determine case, whether primary risk were assumption applied. parties in a touch football Most if not all in such coparticipants game. participants contact are aware there a risk of competitive sports injury through overexuberant other But that players. of risk play subjective appreciation was not the focal Court’s attention. Rather the point Supreme plurality least, at looked to the of care opinion, policy implications imposing duty on toward their contests. The participants these court coparticipants high care, decided considerations militated public policy against prima- *7 because in such events would be rily “vigorous likely participation sporting to be chilled were on a on the basis of legal liability imposed participant or her when a his careless conduct. . . . ordinary participant’s [E]ven conduct violates a rule of the and the violator to internal game may subject itself, sanctions of liability for such prescribed by sport imposition legal conduct well alter of the might the nature fundamentally sport by deterring to, from in that falls close but on participants activity vigorously engaging of, Jewett, side v. rule.” 3 Cal.4th permissible prescribed supra, (Knight 296, 318-319.)
Thus, under the view in whether the Jewett plurality question rider in this case (the aware of subjectively horse she danger precise rented had a and ride predisposition spook) chose to voluntarily particular is irrelevant to whether the despite stable which rented her the horse owed of her a care to safe provide horses or at least warn riders of ones. The here as in analysis Jewett focuses on the properly policy factors defendant’s affecting in the of context this particular activity. The is: Do question in the riding stables of renting business horses to members general of trail owe public purposes rides due care of toward those who rent those horses? III. Commercial (Not Stables Owe a Riding Duty Narrow Due Care
Applicable Case) This Those Members General Public Who Rent Horses From Them. case, Gouin, and its Jewett Ford companion supra, one answered set of questions in the field of recreational activities—the extent of duties However, participants recreational activities owe to each other. although activities, once again arising the context of recreational the instant case raises a different issue—the duties operators commercial of recreational owe to activities members of the public to whom sell their they recreational services. neither
Though Jewett nor Ford ruled on the issue of a commer- directly cial recreational facilities’ duties to its Jewett contains extensive patrons, discussion of this issue in the course of and rationale of explaining scope discussion, primary assumption of the In this risk. went Supreme Court out of its toway between distinguish commercial participants operators, facilities, commercial emphasizing such baseball operators recreational as resorts, and ski owe duties parks might to other participants spectators owe would not or to participants participants spectators. As the court high observed: the legal owed scope by “[T]he in, defendant frequently will also on the defendant’s role relation- depend to, sport. ship
“The latter of one point demonstrated review of the numerous cases an at a involving sustained baseball injury spectator game.
586 v. San Baseball Diego 625], Club P.2d Ratcliff when, a baseball spectator in the injured stands between home walking and first plate base a during she was hit an game, thrown by bat. accidentally She sued both the who threw the bat and the player baseball stadium owner. The returned a jury verdict in favor of the but found the stadium player, owner liable. On the Court of appeal, affirmed. Appeal
“Had the court utilized an implied consent analysis, court Ratcliff would have looked to the (the of the particular plaintiff spectator) determine whether the risk of being hit an by accidentally thrown bat was an inherent risk of the sport baseball assumed plaintiff, would have treated the action both plaintiff’s against defend ants with similarly regard to such The risk. court did not analyze Ratcliff manner, Instead, case in that however. the court implicitly that recognized two different issue—(1) duties were at potential of the duty ballplayer bat, play game without his carelessly throwing duty stadium owner to a provide safe stadium reasonably with regard (but common relatively hazard of a particularly dangerous) thrown bat. Because each defendant’s rested on a there liability was no separate duty, in the verdict inconsistency jury the batter of absolving but liability impos ing on the stadium liability owner for its failure to provide patron bats, from ‘protection at least in the flying area where the greatest danger exists and where such an occurrence is to be reasonably expected. [Citation ” Jewett, v. (Knight supra, 317.) 3 Cal.4th omitted.]’
The plurality opinion Jewett likewise explained of care a duty (as commercial sports operator owes participants contrasted to spectators). “Although defendants have (or no generally legal eliminate a duty protect itself, risks inherent plaintiff against) in the it is well established that sport defendants do have a due generally duty use care not to increase the risks to a participant over and above those inherent in the sport. Thus a although run, ski resort has no to remove from ski it moguls does have clearly safe, to use due care to maintain its tow in a condition ropes working so as not to skiers an increased risk of The expose harm. cases establish risk, that the latter type posed by ski resort’s negligence, is not clearly (inherent a risk in the that is assumed sport) participant.” (Knight Jewett, 296, 315-316, supra, added.) Cal.App.4th italics be general extracted from this discussion in principle may Jewett that commercial and recreational facilities owe operators sports terms, of care to their is to patrons. general ensure facilities and related services which are do not increase the risk of provided above the level inherent in injury or recreational A itself. sport activity
587 if, instance, commercial violates this for it duty sells or rents operator its defective which the equipment risk of patrons aggravates patrons’ injury. here, course, The recreational of was horseback activity riding, specifi- trail with rented cally riding horses from the commercial supervised operator of this recreational service with the horse-riding “wranglers” operator to trail the ride. The commercial employed guide supervise operator riders, received from the both for the compensation them horses and renting them with supplying “wranglers.”
There doubt is no horseback even tame the rather of riding, sport ride, on the back of horses in an afternoon walking trail carries some inherent risk of A horse can or injury. stumble rear or break into a suddenly of which throw But gallop, any may the rider. this does not mean necessarily the commercial of the no of operator horse-riding facility owes care to duty those who rent horses its and can never be liable for injuries suffered stumbles, rears, because a horse or breaks into a suddenly The gallop. commercial has a to horses which are operator supply not unduly Furthermore, dangerous.2 owes the warn to operator patrons renting given horse if that horse has evidenced a to predisposition behave in which to ways add risk ordinary riding. initially argued 2Defendants there was no evidence in the record before the trial court demonstrating the horse Ms. Harrold a propensity rode had to its In throw riders. connection argument, with this objected defendants to the Harrolds’ deposition inclusion of Paula Gow’s and the third volume of Ms. in deposition appendix Harrold’s lieu clerk’s transcript deposition because neither was before the court. The trial record reflects defendants’ counsel specifically stipulated deposition to Harrolds’ summary judgment use of the at the hearing However, subject to an objection at that time objection and that no such was made. the record deposition does indicate whether the was in fact before the trial court. record, ambiguity Because of this requested supplemental we briefing concerning what presented evidence was concerning propensity to the trial court spook horse’s or throw response, riders. Harrolds supporting cited to some evidence that conclusion but argued also properly that burden rested with to provide competent defendants admissible allegations controverted the concerning propensities. evidence Harrolds’ the horse’s produce Harrolds had establishing propensity spook no evidence the horse’s throw other riders in the absence of contrary evidence. As this court held in Witchell v. De (1986) 965, 176], Cal.App.3d Korne Cal.Rptr. 179 is the 976-977 burden of a [225 “[i]t defendant, moving summary in order to succeed on judgment, a motion controvert all plaintiff’s of the material allegations complaint. precludes The failure to do so summary (Italics added; accord, 426, (1982)
judgment.”
Bleiberg
Brown
Cal.3d
32
438 [186
228,
Cal.Rptr.
may
allegations
complaint
651 P.2d
court
not consider the
of the
815] [“a
”],
‘except
they
original
to the extent that
are not controverted
on either side’
affidavits
italics;
Cal.App.3d
Pena
Supply
v. W.H. Douthitt Steel &
Co.
929-930
76];
Cal.Rptr.
Corp.
Conn v. National Can
638-640
[225
445].)
Cal.Rptr.
Here,
“[djefendants
alleged
willfully
Plaintiff
the Harrolds
failed to warn
I.
Charlene
riders,
temperament
throw
tendency
spite
unstable
of the horse
Harrold
and/or
knew,
diligence
of
known,
fact that
or in
should
Defendants
the exercise
reasonable
have
previously
that the horse had
thrown riders.” Defendants failed to controvert this
This level of
is consistent
with duties owed
commercial
operators
of other forms of recreational
facilities
such as ski resorts.
is an
Skiing
inherently
But
this does not mean
sport.
ski resort
avoid
operators
*10
a
to skiers to
owing
duty
them with
supply
nondefective ski lifts and trails.
(Sunday
v. Stratton Corp.
(1978)
Likewise, a whole host duties can be ascribed to commercial providers facilities, i.e., saddles, of horse-riding not to provide faulty bridles and other trails, not to equipment, not to provide dangerous horses that are provide However, shodded the list can on poorly—and and on. go this case we short of a on stable stop imposing owners to “ideal” duty provide riding buck, bite, trot, horses such that never break into they a stumble or “spook” when confronted a event on the trail by frightening such as a shadow or or snake react to peculiar movements of a rider such as excessive spurring of a coat as in this waving case. We view sudden movements of a horse just as inherent in horseback as the riding on a ski are presence moguls slope to skiers.
Public not a on policy supports commercial imposing duty opera rides, tors of facilities which trail horse-renting provide supervised supply horses, “ideal” but we short of such stop eliminating as a any duty warn a However, dangerous a horse. propensity given the one prior incident of the horse subject does not rise to the level of a having spooked in our It propensity, does rise to the level of a “horse opinion. behaving as horse” with no incumbent on the part stable In our operator. opinion, some sort of on a impose lessor of horses when a “horse acts as a horse” is to tell the commercial world that strict action of a liability imposed any horse inherent in horseback riding, with the concomitatant result that in all all commercial horseback probability will cease because of the risk involved to those that are self-insured or reason of the to obtain prohibitive insurance for such an expense liability enterprise. supra,
allegation. Accordingly, (See Bleiberg, Brown allegation we must assume the is true. 438-439; Corp., supra, Conn v. National 640.) 32 Cal.3d at pp. Can p. at We add that here there indeed was evidence rider had been might She took her hands off the reins for a moment to contributorily negligent. co-rider, remove her coat to hand to a who was unselfishly young girl, of the cold. But this act is immate- contributory negligence complaining rial as the Court has us Jewett. we are taught Consequently, Supreme and do when a on of horse rides unwilling impose purveyors horse, as a more than we “acts” would on any impose general duty commercial small boat when a wave moves a boat operators suddenly to be unbalanced and causing passenger injured.
We find that the trial court was correct in the action concluding brought the Harrolds was barred of the risk. by primary assumption
Disposition is affirmed. to recover their costs on judgment Respondents appeal.
Lillie, J.,P. concurred. JOHNSON, J. dissent once from a -Jewett as- respectfully again post I time, of the risk sumption authored one of This opinion my colleagues. however, the distance between our is far narrower and thus this positions dissent can be much shorter.
, I have no with quarrel the excellent of majority’s the summary primary of the risk assumption doctrine as it to of commercial applies operators facilities, sports including stables. I such facilities owe a horse-renting agree not to increase the risk above the duty level inherent in the athletic activity holds, are to As the they being compensated supply public. majority the context of a stable this includes the horse-renting ordinarily duty respon- “to horses which are sibility . . . to supply unduly dangerous. [and] warn . . . a horse that horse has evidenced a patrons renting given to behave in which add to the risk of predisposition horse ways ordinary ante, 587.) at riding.” (Maj. opn., p.
Now, I concede it is a possible imagine horse-renting facility catering riders and the fact its stable is full of wild and experienced advertising horses dangerous abilities of the best just waiting challenge wranglers of a commercial such equestrians. Presumably operator horse-renting would not owe a to weed out the animals or to warn facility duty its about those But highly experienced patrons dangerous propensities. is not the nature of the J An afternoon trail ride is about Rolling operation. as far as one can from the I have get posited. sort of bronco adventure
Therefore, the nature and of level owed of horse- operator in this renting facility case is different and than it higher might be one wild ride on untamed advertising beasts. woolly Public policy certainly imposing on commercial supports operators of facilities which are horse-renting catering trail riders to supervised suitable and warn of horses supply any risky unsuitably propensity given Trail will may exhibit. rides not be less because the ride pleasureful takes on at place safe horses or least on ones that have not exhibited unsuitably risky tendencies. Nor does it make ride to take more enjoyable it on a horse of whose has not bothered to warn the propensities operator contrast, (In rider. Court Supreme absence care justified among a touch football coparticipants game by emphasizing imposition such would vigor, enthusiasm and seriously impair pleasure engaging particular Jewett sport. (Knight Cal.4th 696].) 318-319 P.2d Cal.Rptr.2d amateur,
There is no more social value in sending often inexperienced, on a riders trail ride with known horses to have unsuitable or propensities with unsuitable not even to the riders’ than propensities brought attention there is in sending onto the with people freeways defectively designed *12 cars, or manufactured them on a maintained ferris putting dangerously wheel, or them out the in a into Pacific rented sailboat which turns sending sails, rudder, have out to tom a hole in broken and the bottom. of the risk” to “Primary assumption does not bar apply properly recovery where, here, in case as human is completely the endeavor involved one any in which is best the society served class of the defendant requiring is a member to to in exercise due care those the class. In those plaintiff’s situations, Jewett, in as explained plurality opinion comparative doctrine is the far negligence superior both and approach theory practice. It means how much of the supplies weighing plaintiff’s injury attributable to the commercial recreation breach its due facility’s care toward its much how is attributable to breach patron’s patrons care her of due toward herself.
Here there indeed was evidence the rider had been contributorily She her to her coat took hands off reins for moment remove negligent. co-rider, to hand to a of the cold. This girl, who was young complaining trial, if act of at would find its negligence, contributory proved presumably into the if the were to way comparative begin negligence equation jury But, trial, on case. at would J’s Rolling this so deliberating proved with a horse known to have a negligence predisposi- supplying plaintiff tion to at movements her of such without even spook warning predis- Out of this would an award which not measured out position. emerge ration of rider but also administered proper compensation injured levels of financial incentives to safer behavior both encourage proper commercial horse facilities and those who rent from them. however,
The does not allow this case to reach the majority opinion, jury so that can balance the rider’s body alleged contributory negligence against the commercial stable’s with a verdict based alleged negligence emerge on That concludes comparative negligence principles. opinion horse-renting horses, facilities do not owe a “ideal” a statement with which supply I Yet earlier in this same agree. holds opinion majority horse-renting facilities do owe a horses which are not and to supply warn of the of the horses dangerous propensities a statement they supply, with which I also is whether agree. is correct in question majority there was not even a triable determining issue whether this horse had Harrold, rider, of which propensities Ms. should have been warned. I am convinced the uncontroverted plaintiffs’ this horse allegations pos- sessed unstable .. to throw riders” and temperament. tendency “[an] and/or J had or should had Rolling have of this dangerous disposi- ante, 587, (see tion 2) at maj. fn. was to create a triable opn., p. enough issue. failing evidence the horse it rented Mrs. Harrold produce any lacked dangerous J has failed to controvert this material propensities Rolling allegation For complaint. summary judgment purposes, allegation 426, (Brown (1982) must be as accepted true. v. Bleiberg 32 Cal.3d 438 [186 228, 815]; P.2d Witchell v. De Korne Cal.Rptr. 179 Cal.App.3d 176]; 976-977 Pena v. W.H. Douthitt Steel & Co. Cal.Rptr. Supply [225 76].)1 If 929-930 we as Cal.Rptr. accept true the claim this horse had an unstable temperament tendency and/or throw riders it is difficult how J’s behavior failed to comprehend Rolling *13 constitute a breach of the it owed Mrs. Harrold. In her a supplying horse with these traits stable at a minimum had a to warn her of the horse’s dangerous propensities.
In addition to the uncontroverted in the Harrolds’ allegations complaint, issue, which were themselves to create a triable enough by there was statute, 437c, summary judgment 1The Code of Civil amended in Procedure section was 1, 1993, (n). effective January 1992 to include a new subdivision At least one commentator argue to appears provision may require opposing this new plaintiffs who are a defendant’s summary judgment allegations to introduce evidence in their support of even the defendant (Schmalz, not controverting allegations. Summary Judgment: has introduced evidence those A 1993) 23.) (Sept. Dress Rehearsal Trial Lawyer require in-depth 16 L.A. It would an for inquiry legislative history accept into the of the 1992 amendments to 437c before one could (n). reject interpretation ambiguous language or of subdivision But there is no 437c, (n) appeal governed by reason to consider the effect of subdivision since this is summary judgment standard in effect when years ago. this motion was decided several 592
evidence in record the horse had bucked a rider a short time before Ms. Harrold’s fateful ride under circumstances almost identical to those led her fall. law,
Under California it was not for the necessary Harrolds raise a triable issue this horse was or particular vicious all nor dangerous to riders that J Rolling actual possessed the horse’s nature. It was there be a triable enough issue horse was unsuitable for the purpose trail rides amateur riders and the stable had not taken reasonable care once, ascertain this fact. As our Court has held more than Supreme “[I]n contract of of horse hiring for . . . there an riding purposes, is contained to the rider implied warranty that the knows has or exercised stablekeeper care reasonable to ascertain the habits of the horse and that animal is safe and suitable for which the purpose hires the horse to the keeper renter for (Kersten (1942) 1, thereof.” 501], 52 6 Young italics Cal.App.2d P.2d [125 added; 92, Palmquist (1954) 26], v. Mercer 43 Cal.2d 99 P.2d citing [272 Dam v. Lake Aliso (1936) School 6 Riding Cal.2d 399-400 P.2d [57 1315], added.) italics This general most accepted jurisdictions. Annot., (See Liability Owner Bailor Horse by Horse Injury Hirer or Bailee Thereof 358.) A.L.R.4th view,
Consistent with this a California court appellate reversed defense verdict because the instructions be jury horse stable rents must implied vicious or mean or untrustworthy order violate the owed the rider. “That instruction tend would to cause the to believe jury that could not unless the horse prevail was vicious. In this it was erroneous. The respect could have found that jury agreed the defendant to furnish a horse gentle to handle and that Bull easy Dog was such a horse even (Estes he was not mean or though vicious or v. Smith untrustworthy.” 534].) P.2d This raises series of questions.
How riders does a many get to throw before the animal is deemed to be an mount for amateurs an afternoon trail ride? inappropriate taking
And how such does many bucking incidents it take before horse’s *14 commercial owner has a warn amateur rider about the unlucky horse’s proclivities? motion,
And finally, relevance to a how special summary judgment many unlucky riders does a have to at the summary plaintiff produce to create a triable issue the horse judgment stage possesses disposition a minimum with service on trail rides or at requires which is incompatible least a triable issue that a horse riders be warned? Isn’t there at the chosen for this least one rider is unsuitable has and bucked off at who spooked purpose? case, moreover, instance in the record there is more than one
In this There is and throw riders. this horse’s evidencing spook predisposition rather short evidence this horse bucked off two riders in a time span—Ms. Don’t these two incidents an support Harrold as well as the earlier rider. of which Ms. inference the horse had a preexisting predisposition spook, True, have warned? the inference of Harrold and other riders should been if the Harrolds had would be stronger pro- this preexisting predisposition had riders. But I am not sure a duced evidence this horse thrown a dozen before we can horse has to leave riders strewn across injured landscape created on the of the animal’s unreli- a triable issue has been say question it does afternoon trail rides. In my as mount ability peaceful opinion, to survive a not such a on this high degree proof question require motion. judgment summary incident sufficient to
Other
have found
was
jurisdictions
single prior
create a
as to whether the horse owner violated its
toward
jury question
(Hahn
those who later rented or used that
horse.
Rockingham Riding
Stables
Still other states that there was no evidence without of a incident. “The contention proof prior idea that the cannot be It is based on the upheld. to take case jury known to buck the horse’s and it was never bucking, was thrown by before, enactments changing and that as a before dog, statutory bite, a horse is was entitled to its first common-law rule as to scienter to this as applied entitled to its first buck. We cannot agree proposition *15 594
horse let out (1932) for hire.” v. by liveryman (Vaningan Mueller 208 Wis. 419, 420, 527 N.W. verdict [jury sustained for violating [243 implicit 421] that horse is for warranty suitable for which rented when horse purpose bucked and threw amateur rider lack of evidence the horse had despite bucked]; Dolezal previously (1989) 161 Ariz. Carbrey P.2d [778 reversed where [summary judgment previously bolted peaceful 1261] dismount]; when rider or with two three rides previous attempted (9th 1945) v. Harvey Mateas Cir. 146 F.2d [quotes Vaningan effect horse—in this not buck”].) case mule—does a “free get
It would not seem it should of require greater evidence to quantum survive summary motion in California than judgment it takes survive nonsuit in New or to sustain a verdict in A Jersey Missouri. jury single incident was reach the bucking enough to in those states and should jury be here. Nor should it more evidence here than it does in the require Ninth Wisconsin, Circuit or in Arizona or which do not proof of require any prior incidents.
Not California indeed is in line with other surprisingly, these jurisdictions on (1968) this issue. In Dorobek v. Ride-A-While Stables 262 Cal.App.2d 774], the Court of need Cal.Rptr. held riders not introduce Appeal evidence of of incidents or any prior injury misbehavior the horse in order to recover from the stable sustained. injuries they case,
In that returned verdict in of a rider jury favor who had been thrown from her rented horse. On the defendant stable appeal, complained the evidence was insufficient to show it violated its ascertain the horse would be The unmanageable stable dangerous. pointed absence evidence in the record of incidents where this horse had any prior Moreover, misbehaved or harmed a rider. both the stable owner and an traits, testified the horse was had no employee gentle, bad never bucked or been the riders. None of evidence subject complaints by previous about the horse’s was The controverted rider prior history directly. plaintiff instead relied two on facts: behavior of the horse spirited during her, incident which injured the failure the stable’s records to reflect of riders’ about rented while reports horses complaints any they (but such had made about conceding been some horses one reports incident). involved in this court affirmed the verdict in favor rider. appellate jury plaintiff
It concluded the horse’s on the single behavior occasion which the horse charac- injured represented ample dangerous proof possessed teristics. if an can if a horseman tell horse has “Certainly expert *16 horse, failure to of the defendant’s observation characteristics by proper was no necessity there make such observation was negligence, horse and thereof acts prior to establish plaintiff Stables, (Dorobek at Cal.App.2d p. v. Ride-A-While supra, defendant.” added.) italics Smith, did not squarely n the court supra, Estes v. evidence. The of the rider’s plaintiff address the sufficiency question court, however, had been rendered did reverse a verdict which jury the fact had favor because instructional error despite defendant’s misbehavior evidence of a incident of prior introduced single him. If court considered more was required, horse who threw the Estes And, retrial. would not to return case for it have bothered presumably rider, it verdict in favor of one incident is enough jury prior support to survive a motion. enough summary judgment certainly First, sum, reasons. I am convinced a triable issue exists for two Harrolds’ this horse was J failed to controvert the Rolling allegations under and out-of-state and threw riders. California Alternatively, authorities, evidence the the record was sufficient to Harrolds pointed but this horse less than “ideal” that create a triable issue merely trail it which made it unsuitable for amateur riders. possessed disposition itself J owed a not to increase the holds majority opinion Rolling a triable risk above that inherent in the of trail There was issue riding. sport stable violated Harrold with this horse Ms. duty by supplying to warn unsuitable tendencies. Accordingly, my also her of its failing should be reversed. opinion, summary judgment