Lead Opinion
Opinion
Plaintiff was thrown from the horse on which he was riding after the horse was frightened by loud noises from a nearby garbage truck that was operating in its normal manner. Plaintiff sought recovery for his injuries from defendant garbage company, but the trial court granted summary judgment for defendant. The Court of Appeal reversed, concluding that under the applicable common law authorities and this court’s decision in Knight v. Jewett (1992)
We conclude that the Court of Appeal erred in reversing the trial court judgment in favor of defendant. As we shall explain, the Court of Appeal’s mistaken analysis of, and conclusion on, the duty question posed here rested in part upon the appellate court’s misapplication of the common law cases concerning liability for injury caused by fright to horses, and in part upon its misunderstanding of our decision in Knight, supra,
As discussed below, for more than 150 years courts have recognized that a defendant breaches no duty of care merely by operating socially beneficial machinery in a manner that is regular and necessary, even if such ordinary operation happens to frighten a nearby horse and, as a result of the horse’s reaction, some injury or damage ensues. This long-standing line of authority establishes that although defendant had a duty to conduct its garbage collection activity in a prudent fashion (and to use due care to avoid making unusual noises unnecessary to accomplish its task), it had no duty to avoid making the regular noises that were a normal incident to its operations merely because of the possibility that these ordinary operations might happen to frighten a horse that was in the vicinity of its truck. Once the scope of defendant’s duty of care is properly understood, we believe it is clear that the record in this case discloses no evidence that defendant breached its duty of care to plaintiff and, thus, that the trial court properly entered summary judgment in favor of defendant. Hence, we shall reverse the judgment of the Court of Appeal setting aside the trial court’s judgment.
Contrary to what is implied in the Court of Appeal’s reasoning, neither Knight nor its progeny established a broad, expansive duty on the part of defendant to avoid increasing the risk of harm to plaintiff over that inherent in the recreational activity of horseback riding—a purported duty that takes no account of the established authority recognizing reasonable limitations on the responsibility of others for the risk of injury arising from the skittishness of horses. Although the decision in Knight clarified the nature and scope of the duty owed by a participant in an active sport to other coparticipants in the sport, and also explained that, in light of the adoption of comparative fault principles, the assumption of risk doctrine completely bars a plaintiff’s action only in those instances in which the defendant has not breached any duty of care to the plaintiff, Knight did not purport to establish the parameters of the duty of care owed by all potential defendants to persons who happen to be engaged in a sport or activity at the time they sustain an injury.
I
According to declarations and deposition transcripts submitted in support of and in opposition to defendant’s motion for summary judgment, at 10:00 a.m. on a Monday in early December 1991, plaintiff Darrell Parsons rode his horse, Poco, on a public bridle path adjacent to the Los Angeles Equestrian Center in the City of Burbank. This portion of the bridle path is about a mile long, and at one point runs parallel to and fewer than 10 feet from a chain link fence, on the other side of which is a parking lot located to the rear of a restaurant.
At the same time that plaintiff rounded a comer and approached this location, a trash collection truck operated by defendant’s employee, Efren Ramirez, was in the process of picking up and emptying a large debris bin located next to the fence in the restaurant’s parking lot. While the tmck stood stationary, Ramirez, from inside the track’s cab, inserted mechanical forks into the trash bin. Plaintiff, in deposition testimony appended to defendant’s motion for summary judgment and thereafter lodged with the court by plaintiff, testified as follows: When he was approximately 10 feet from the track, he noticed his horse look directly at the track and “begin to tense up.” The bin was lifted off the ground, to the height of the track’s windshield. Ramirez began shaking the bin up and down, apparently to settle its contents before taking the bin “all the way up and over” his cab to empty it into the track bed. Plaintiff saw Ramirez “in the side-view mirror,” at which time Ramirez proceeded “to go ahead up with the trash bin and all I heard was—evidently there were bottles and cans in the trash bin and the loudest noise—I can’t begin to explain how loud that noise was. [*fl] By then my horse is bolting and spinning and bucking and that’s when I landed . . . on the concrete.” According to plaintiff, “it was a matter of split seconds [from] when I turned onto that trail [until] what happened.”
The parties stipulated that both plaintiff and Ramirez knew that horses are susceptible to being frightened, and that Ramirez had known for two years that the restaurant abutted a bridle path frequented by horses and their
Plaintiff’s complaint for damages alleged, as the basis for defendant’s liability, that defendant “negligently operated a trash collection vehicle so as to scare plaintiff’s horse, causing plaintiff to be thrown from the horse to the ground and to proximately and legally cause injuries and damages to plaintiff. . . .”
Defendant filed an answer asserting that plaintiff had failed to state a cause of action. Thereafter defendant filed a motion for summary judgment based on ostensibly alternative, but, as explained herein, essentially identical grounds. First, defendant asserted it owed plaintiff no duty to guard against the injuries complained of, citing in support the policy considerations set out in Rowland v. Christian (1968)
The trial court granted defendant’s motion for summary judgment. The Court of Appeal reversed, concluding that defendant owed and possibly breached a duty to use care not to frighten horses being ridden on the trail, and that the case thus fell outside the bar of primary assumption of risk. We granted review.
II
A “motion for summary judgment shall be granted if all of the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, . . . and all inferences reasonably deducible from the evidence . . . .” (Code Civ. Proc., § 437c, subd. (c).) A defendant “has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant. . . has met that burden, the burden shifts to the plaintiff. . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. . . .” (Id., subd. (o)(2).)
On review of an order granting or denying summary judgment, we examine the facts presented to the trial court and determine their effect as a matter of law. In this case, defendant asserted, and the trial court found, that plaintiff’s evidence failed to establish the “duty” element of plaintiff’s cause
We held in Knight, supra,
The Court of Appeal below acknowledged that in the present case, unlike Knight, supra,
As described below, we conclude the Court of Appeal’s analysis was erroneous, both with regard to the scope of the general common law duty owed to horseback riders, and with respect to the proper interpretation of this court’s decision in Knight, supra,
Ill
A
The present unfortunate encounter falls within a centuries-long continuum of contacts between horses and machinery. Whatever the standards of the leisure classes, as exemplified by the sentiment attributed to Mrs. Patrick Campbell (“My Dear, I don’t care what they do, so long as they
For example, in Stanton v. Louisville & N. R. Co. (1891)
The same general rule has been applied in the decisions concerning injuries caused when horses became frightened by the sight, sounds, and
In each category of case, however, the courts recognized “exceptions” to the general rule of nonliability. It has been held that a defendant breaches a duty of care if (i) the defendant conducts or uses a train, automobile, or other device in a careless or imprudent manner, or causes noises or emissions
A panel of this state’s Court of Appeal applied the second described exception to the common law rule in Eddy v. Stowe (1919)
Finally, in Johnson v. City of Santa Monica (1937)
B
With these principles and this history in mind, we turn to the question whether defendant breached a duty owed to plaintiff in this case.
As a general rule, each person has a duty to use ordinary care and “is liable for injuries caused by his failure to exercise reasonable care in the circumstances . . . .” (Rowland v. Christian, supra,
“ *[D]uty’ is not an immutable fact of nature ‘ “but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.” ’ (Dillon v. Legg (1968)
In addition, when addressing conduct on the part of a defendant that is “deliberative, and . . . undertaken to promote a chosen goal, . . . [c]hief among the factors which must be considered is the social value of the interest which the actor is seeking to advance.” (Prosser & Keeton on Torts (5th ed. 1984) § 31, p. 171, italics added, fn. omitted; Schwartz v. Helms Bakery Limited (1967)
The early cases discussed ante, part III.A, rely primarily, and often expressly, on this “social utility” policy consideration in concluding that, in a variety of contexts, a defendant is neither “negligent,” nor does it “breach a duty of care,” merely by causing a machine to produce noises or emissions that are necessary to the regular operation of the machine and that in turn
Plaintiff proposes that defendant might have guarded against his injuries by employing various preventative measures—changing the hours of collection, temporarily “blocking off’ the area with warning cones or tape, posting warning signs, providing riders with a schedule of collection times, or a combination of these methods. Like points could be raised with regard to most if not all of the cases discussed ante, part III.A, and yet the courts have declined to impose such conditions on the employment of similarly beneficial machines, because to do so unreasonably would impair the utility of those devices. We find no reason to doubt that defendant’s garbage collection activity is a vital public service and a matter of high social utility. (See Lyman v. Village of Potsdam, supra,
A related policy consideration—the consequences to the community of imposing a duty to guard against the possibility of frightening a horse, with resulting liability for breach—also militates against imposing such a duty. The breadth of the list of noises and things that might scare or spook a horse (“[a]s a general rule a horse will shy at what he is not accustomed to seeing [or hearing]”; Pittsburgh Southern Rw. Co. v. Taylor (1883)
Contrary to the suggestions of plaintiff and the Court of Appeal below, two of the other considerations set out in Rowland v. Christian, supra,
Plaintiff asserts that because defendant’s employee knew that a bridle path abutted the garbage bin and that the collection procedure might frighten a horse, a jury reasonably might conclude plaintiff’s injury was “foreseeable.” As explained in Ballard v. Uribe, supra, 41 Cal.3d at pages 572-573,
Even assuming foreseeability as contemplated in Rowland v. Christian, supra,
Nor do we agree that the final general consideration listed in Rowland v. Christian, supra,
Although we reject plaintiff’s assertion that defendant owed an expansive duty to guard against frightening horses, we affirm that defendant was obligated to conduct itself in accordance with the limited common law duty articulated ante, at pages 469-470. Specifically, defendant was required to (i) avoid employing its garbage truck in a careless or imprudent manner, or causing noises or emissions unnecessary to the regular operation of that machine; (ii) take reasonable protective actions if its operator knew, in time to take such countermeasures, that plaintiff’s horse actually had become frightened by the operation of the truck’s mechanical forklifts; and (iii) avoid conducting its machinery in an unnecessary or malicious fashion designed to cause fright.
But under the circumstances here presented, there is no basis on which to conclude that defendant breached the limited duty of care it owed to plaintiff. There is no evidence that defendant operated its garbage truck in anything but the regular and necessary manner of a garbage truck acting like a garbage truck (cf. Harrold v. Rolling J Ranch (1993)
Under the governing case law, as well as a consideration of the various factors set out in Rowland v. Christian, supra,
C
The Court of Appeal found, contrary to our conclusion, that defendant had a common law duty to avoid increasing the risk of harm to plaintiff over that inherent in the activity of recreational horseback riding. For this proposition, the Court of Appeal relied principally upon Eddy v. Stowe, supra,
As explained above, both Eddy v. Stowe, supra,
IV
Contrary to the Court of Appeal below, we conclude that our decision in Knight, supra,
In Knight, supra,
We observed that Li, supra,
We concluded that Li, supra,
We summarized the “general conclusions” of a majority of the court as follows: “In cases involving ‘primary assumption of risk’—where, by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury—the doctrine continues to operate as a complete bar to the plaintiff’s recovery. In cases involving ‘secondary assumption of risk’—where the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant’s breach of duty—the doctrine is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties. [*]D Accordingly, in determining the propriety of the trial court’s grant of summary judgment in favor of the defendant in this case, our inquiry does not turn on the reasonableness or unreasonableness of plaintiff’s conduct.... Nor do we focus upon whether there is a factual dispute with regard to whether plaintiff subjectively knew of, and voluntarily chose to encounter, the risk of defendant’s conduct, or impliedly consented to relieve or excuse defendant from any duty of care to her. Instead, our resolution of this issue turns on whether, in light of the nature of the sporting activity in which defendant and plaintiff were engaged, defendant’s conduct breached a legal duty of care to plaintiff.” (Knight, supra, 3 Cal.4th at pp. 314-315.)
Turning to the question whether there existed evidence that the defendant breached his duty of care, we observed that “the nature of a sport is highly relevant in defining the duty of care owed by the particular defendant.” (Knight, supra,
We then surveyed numerous California and out-of-state common law decisions, and concluded that, for reasons of policy, a participant in an active
Thereafter, in Neighbarger v. Irwin Industries, Inc. (1994)
As noted earlier, the Court of Appeal below focused on our statement in Knight, supra,
We did not impose such a general duty in Knight, supra,
As illustrated by Court of Appeal cases decided since Knight, supra,
As further illustrated by Court of Appeal cases decided since Knight, supra,
For example, in Romito v. Red Plastic Co. (1995)
The court in Romito properly did not focus upon whether the defendant’s skylight design had increased the risk inherent in conducting electrical work. Instead, after engaging in a traditional duty inquiry utilizing the policy considerations set out in Rowland v. Christian, supra,
Similarly, in Lompoc Unified School Dist. v. Superior Court (1993)
These post-Knight cases confirm that when, as here, no relationship exists between the plaintiff and the defendant, and there is no policy reason for imposing a duty upon the defendant to avoid increasing the risk of harm to the plaintiff over that posed by the activity in which the plaintiff happens to be engaged, the defendant has no such duty.
The question remains whether, despite the absence of evidence that defendant breached its limited common law duty to plaintiff, there nevertheless exists evidence suggesting that defendant breached a special or expanded legislatively imposed duty of care. (See Ford v. Gouin, supra,
Vehicle Code, section 21759, imposes a duty on “[t]he driver of any vehicle approaching any . . . ridden animal. . . [to] exercise proper control of his vehicle and . . . [to] reduce speed or stop as may appear necessary or as may be signalled or otherwise requested by any person . . . riding . . . the animal ... in order to avoid frightening and to safeguard the animal . . . and to insure the safety of any person . . . riding the animal....’’ (Italics added.) As the Court of Appeal implicitly conceded, no evidence suggests that defendant violated this statute. Defendant’s employee was not “driving” the truck at the time of the event, and the truck was not “approaching” plaintiff. Just the opposite: Defendant’s truck was stationary as plaintiff approached the rear of the vehicle. Moreover, plaintiff neither signaled, nor otherwise requested, that defendant’s employee cease operation of the truck’s lifting mechanism. Defendant breached no duty owed under this “right of way” statute.
Plaintiff also insists that a triable issue of fact exists whether defendant violated Los Angeles County Code section 12.08.520(A), which prohibits “operation of the compacting mechanism of any motor vehicle which compacts refuse and which creates, during the compacting cycle, a sound level in excess of 86dBA when measured at 50 feet from any point of the vehicle.” (Italics added.) Although defendant appears to assume otherwise, it is highly questionable that there is evidence indicating defendant was using a “compacting mechanism” as that term is employed in the county code. As noted ante, at pages 462-463, plaintiff described his horse’s fright as being caused by (i) defendant’s insertion of forks into the debris bin, (ii) lifting and shaking of the bin, and (iii) tipping of the contents (including loudly crashing bottles) into defendant’s truck. Nowhere in plaintiff’s detailed description (or anywhere else in the record before us) is there any reference to employment of a “compacting mechanism.”
VI
The record contains no evidence that defendant breached the limited duty of care it owed to plaintiff. We conclude that the trial court properly entered summary judgment for defendant and, accordingly, we reverse the judgment of the Court of Appeal.
Baxter, J., Chin, J., and Brown, J., concurred.
Notes
Plaintiff asserts in his answer brief that on a previous occasion, Ramirez noticed horses “[get] kind of scared” and “[take] off running” at the same location. As defendant observes, the deposition transcripts disclose that it was not Ramirez, but his supervisor (Freire) who had seen horses “spook” at that time. Moreover, as defendant observes, that event occurred in 1979—12 years prior to the present incident—and no rider was thrown on that earlier occasion.
Justice Mosk’s dissent asserts: “[Plaintiff’s] evidence was to the effect that he and [defendant’s] driver ‘made eye contact with each other as [plaintiff’s] horse began to spin and bolt.” (Dis. opn. of Mosk, J., post, at p. 488, italics added; see also id., at pp. 493 & 494.) Although plaintiff advanced this assertion in his papers opposing summary judgment, that assertion is wholly unsupported by any evidence. Plaintiff testified by deposition that he saw Ramirez in the side view mirror. Plaintiff did not testify that Ramirez saw him, or that the two made “eye contact” before or while plaintiff’s horse commenced to spin and bolt. Nor does Ramirez’s deposition testimony, appended to plaintiff’s motion opposing summary judgment, in any way support plaintiff’s assertion. Plaintiff’s unsupported assertion in his moving papers opposing summary judgment does not constitute “evidence.”
Contrary to suggestions in Justice Kennard’s dissent (post, at pp. 502-503), defendant did offer evidence that its employee, Ramirez, did not see plaintiff until after the injury had occurred. In support of its summary judgment motion, defendant lodged a complete transcript of the deposition testimony given by Ramirez, which included the following questions to and answers by Ramirez: “Q: What was the first thing you did when you saw [plaintiff]? A: I asked to myself, ‘What could have happened?’ Q: What did you tell yourself? A: I didn’t think anything. Q: Did you think that maybe your emptying the trash had something to do with it? A: No.” Thus, defendant presented evidence, in the form of Ramirez’s deposition testimony, indicating that Ramirez was unaware of plaintiff’s presence until after plaintiff had sustained his injuries.
Justice Mosk’s dissent asserts that in light of these grounds advanced in support of summary judgment, “it [was not] even an issue of material fact” whether Ramirez saw plaintiff, or saw that the horse was frightened “before [plaintiff] fell from the horse.” (Dis. opn. of Mosk, J., post, at p. 488, fn. 2.) As explained below, the dissent is wrong. Under long established authority, defendant’s operator, Ramirez, had a duty to take reasonable protective measures if he knew that plaintiff’s horse actually had become frightened. Both of defendant’s grounds for summary judgment called for application of that settled law.
At the time of the summary judgment motion in this matter, language substantially identical to that in the last-quoted sentence appeared in Code of Civil Procedure section 437c, subdivision (n)(2) (see Stats. 1992, ch. 1348). Subsequently, effective January 1, 1994—i.e., after filing of the summary judgment motion here at issue—the following third sentence was added to section 437c, subdivision (o)(2): “The plaintiff . . . may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists . . . .” (Stats. 1993, ch. 276.)
Bartlett’s Familiar Quotations (15th ed. 1980) page 706 (Beatrice Stella Tanner Campbell 1865-1940).
See, e.g„ Burton v. Railroad Co. (1845)
Again, numerous decisions are in accord. See, e.g., House v. Cramer (1907)
Accord, East Tennessee Telephone Co. v. Parsons (1913)
See District of Columbia v. Moulton (1901)
See Loberg v. Town of Amherst (1894)
Locomotives: e.g., Carraher v. San Francisco Bridge Co. (1893)
Such cases typically concern automobiles. See Brinkman v. Pacholke (1908)
A few cases stand for the proposition that because an automobile driver has a duty to “keep a lookout ahead,” the driver of such a moving vehicle has a duty to take protective measures when he or she sees “or could have seen by the exercise of reasonable caution” that horses actually have become frightened by the driver’s vehicle. (See McIntyre v. Orner (1906)
Such cases typically concern streetcars and locomotives. See Applegate v. West Jersey & S. R. Co. (1906)
Locomotives: e.g., Pittsburg, C., C. & St. L. Ry. Co. v. Robson, supra,
According to Justice Mosk’s dissent, California—alone among all other states of the Union (and unlike England, for that matter)—developed case law “contrary” to the firmly established common law rules described ante, at pages 466-470. (Dis. opn. of Mosk, J., post, at p. 489.) The dissent misreads the relevant California cases.
The dissent’s description of Hahn v. S. P. R. R. Co., supra,
The dissent acknowledges that liability in Eddy v. Stowe, supra,
Finally, regarding Johnson v. City of Santa Monica, supra,
Accord, Musgrove v. Ambrose Properties (1978)
Accord, Stromer v. City of Yuba City (1964)
Justice Mosk’s dissent repeatedly asserts that our consideration and application of the “social utility” factor is “new” or unprecedented. (See dis. opn. of Mosk, J., post, at pp. 490, 491, 492.) As explained in the immediately preceding paragraph of the text, California decisions, consistently with the respected tort treatise cited above, have long considered the social utility of a defendant’s conduct in defining the appropriate duty of care. Moreover, as demonstrated by the out-of-state cases discussed ante, pages 466-470, courts for decades have considered the social utility of a defendant’s conduct in fixing the duty owed to a plaintiff injured by a frightened horse.
The court in observed in Forging Industry Ass’ n. v. Secretary of Labor (4th Cir. 1984)
Although Justice Mosk’s dissent asserts that defendant’s operator had a duty to “stop as necessary” if he saw, or reasonably should have seen, plaintiff’s horse approach (dis. opn. of Mosk, J., post, at p. 491), in applying its proposed rule to the facts, the dissent speaks only of a defendant who “sees”—and omits any reference to a defendant who “should have seen”—a horse approach. (See id. at p. 492.) Evidently, the dissent is reluctant to articulate the full extent of the onerous burden that it would impose: namely, that this defendant—as well as every nearby neighbor, passerby, or building contractor—would have a duty to survey the surrounding area while operating a large machine, to make sure that no horse is about, and moreover would have a duty to cease operations (as a jury may later determine was “necessary”) whenever a horse happens to come near.
Of course, defendant also had a duty to comply with any safety statute designed to protect the class of which the plaintiff is a member. Clearly, these requirements do not constitute a “rule of nonliability for negligence” (dis. opn. of Kennard, J., post, at p. 494), but instead define the limited duty owed.
“Justice Mosk’s dissent asserts, and Justice Kennard’s dissent suggests, that summary judgment must be reversed because there remain triable issues of fact on the question whether defendant operated its garbage truck in a careless or imprudent manner, or caused noises unnecessary to the regular operation of the machine. (Dis. opn. of Mosk, J., post, at pp. 492-493; dis. opn. of Kennard, J., post, at pp. 495-496.) There is no evidence raising such triable issues of fact, and the dissents point.to none.
“Justice Mosk’s dissent speculates that plaintiff’s deposition testimony “could ... be understood to indicate that [defendant’s] driver actually saw [plaintiff] in the side-view mirror, and thus knew that a horse was approaching and that the horse was actually frightened.” (Dis. opn. of Mosk, J., post, at p. 493, italics added.) As explained ante, footnote 2, neither the testimony of plaintiff, nor that of defendant’s operator, Ramirez, may reasonably be so construed. The assertion is entirely conjectural.
As observed ante, footnote 12, a few cases stand for the proposition that because the operator of a moving vehicle has a duty to “keep a lookout ahead,” such a vehicle driver also
Finally, as explained post, part V, there is no evidence in the record suggesting that defendant’s truck was operated in violation of a statute or ordinance designed to protect persons in plaintiff’s position.
As these and numerous other post-Knight cases demonstrate, not every case in which a court concludes that a defendant has not breached a duty of care needs to be denominated a “primary assumption of risk” case. Instead, “primary assumption of risk” simply describes a subcategory of those cases in which the defendant has not breached a duty of care.
Concurrence Opinion
I agree with the majority the trial court properly entered summary judgment for defendant and, accordingly, we must reverse the judgment of the Court of Appeal.
As the majority correctly observes, “neither Knight [v. Jewett (1992)
I write separately only to express my view that in this case we neither need nor ought to recognize an exception to the general principle that “a
Marshaling an impressive array of (albeit mostly older and foreign) horse-and-machine cases, the majority demonstrates that courts frequently have held particular machine operators to be not liable in cases wherein it was alleged they tortiously injured horses and riders. (See maj. opn., ante, at pp. 465-471.) These cases do not, however, demonstrate the existence of any special “common law rule of nonliability” (id. at p. 472, fn. 15) that would shield machine operators from ordinary tort responsibility when they frighten horses by carelessly operating their machines. Neither do they stand for the broad proposition that, “as a matter of policy, there shall be no liability for fright to a horse and consequent damages arising therefrom when ... a socially beneficial machine . . . properly was used in the manner for which it was designed” (id. at p. 474), insofar as such proposition may be understood as providing a blanket exemption from the usual rules governing negligence liability. Rather, with respect to duty, the cases stand only for the proposition that due care—the duty “to exercise reasonable care in the circumstances” (Rowland v. Christian, supra,
Nor am I persuaded there ought to exist a special “rule of nonliability” that would categorically shield all machine operators from ordinary tort responsibility when they frighten horses by carelessly operating their machines. (See maj. opn., ante, at pp. 472-477.) “[I]t is clear that in the absence of statutory provision ... no such exception should be made unless clearly supported by public policy.” (Rowland v. Christian, supra,
Thus, in my view, defendant owed plaintiff the duty of exercising due care in the circumstances. Nevertheless, in the circumstances of this case, I conclude summary judgment was properly entered, as no triable issue exists as to whether defendant breached that duty.
As the majority points out, the record contains no evidence that defendant’s driver saw (or reasonably could have seen) plaintiff until after plaintiff
Dissenting Opinion
I dissent.
Although the Court of Appeal resolved this matter under the doctrine of assumption of risk, I agree with the majority that the doctrine is inapplicable here. “[T]he doctrine of assumption of risk properly bars a plaintiff’s claim only when it can be established that, because of the nature of the activity involved and the parties’ relationship to the activity, the defendant owed the plaintiff no duty of care.” (Neighbarger v. Irwin Industries, Inc. (1994)
Instead, this matter raises the following questions. Did defendant Crown Disposal Company (Crown), which operated a garbage truck next to a bridle path, owe a duty of care to Darrell Parsons (Parsons), a horseback rider traveling on the path? If so, did Crown breach its duty? Unlike the majority, I conclude that the answer to the first question is yes. Crown owed a duty of ordinary care to Parsons to prevent injury as a result of its conduct. The answer to the second question—whether that duty was breached—involves disputed facts that must be resolved by the trier of fact. Accordingly, I would affirm the judgment of the Court of Appeal, reversing the superior court’s summary judgment in favor of Crown.
I.
The undisputed facts in this case, as stipulated by Parsons and Crown, are as follows.
On December 2, 1991, at approximately 10:00 a.m., Parsons was riding his horse on the public bridle path next to the Los Angeles Equestrian Center located in or around Burbank. The path runs alongside the back of a restaurant. At about the same time, the driver of a garbage truck owned by Crown was in the process of emptying a trash bin behind the restaurant by
Parsons and Crown did not agree that any other facts were undisputed. Indeed, they expressly disputed whether Crown’s driver saw Parsons on the horse when it became frightened. Thus, Parsons’s evidence was to the effect that he and Crown’s driver “made eye contact with each other as [his] horse began to spin and bolt.” By contrast, Crown asserted that its driver “saw” Parsons “the first time . . . when he was already on the ground.”
Crown moved for summary judgment. It claimed that, under the undisputed facts, it owed no duty of care to Parsons as a matter of “public policy,” arguing that “the utility of trash collection is an important policy consideration that deserves more weight than the prevention of bodily injury to a person engaged in a sporting event.” It also claimed that it owed no duty of care to Parsons under the doctrine of “primary assumption of risk,” arguing that his injuries were an inherent risk of the sport of horseback riding.
The superior court granted summary judgment to Crown. The Court of Appeal reversed, concluding that Crown owed a duty of care not to increase the risks to a horseback rider over and above those inherent in the activity, and that the facts presented on summary judgment showed at best a triable issue of fact whether the duty was breached. We granted review.
Under our tort law, as a general rule, “ ‘[a]ll persons are required to use ordinary care to prevent others being injured as the result of their conduct.’ ” (Rowland v. Christian (1968)
We have never recognized a “social utility” exception to the traditional duty of ordinary care for defendants operating vehicles or other “socially beneficial” machinery around horses.
The majority purport to rely on a “long-standing line of authority” that “establishes” such an exception. (Maj. opn., ante, at p. 461.) Their reliance is misplaced.
Almost all of the dozens of cases cited by the majority are not controlling precedents. They are from out of state. The few California cases cited are to the contrary. Hahn v. S. P. R. R. Co. (1877)
In any event, the majority’s “authority” is overwhelmingly from the turn of the century, a time when horses were ubiquitous and the collision of horses and “socially beneficial” machinery—such as locomotives, trolleys and “horseless carriages”—was routine and unavoidable. The rule they purport to extrapolate from these hoary “precedents”—i.e., that the operator of a “socially beneficial” machine owed no duty to a horseback rider unless it used the machine in a careless or malicious manner, or failed to take reasonable protective actions after it knew a horse had actually become frightened (maj. opn., ante, at pp. 469-470)—is anachronistic.
To the extent a “social utility” exception to the traditional duty of ordinary care could once be rationalized as a matter of public policy—in order to avoid the otherwise inevitably high cost of litigating innumerable accidents involving horses and “socially beneficial" machinery—it can no longer. The rationale for creating such an exception to the duty of ordinary care around horses has vanished along with the horses, now a rarity on our public throughways. The majority have it exactly backwards when they urge that “given the declining relative importance of horses in contemporary society, [Crown’s] position has strengthened.” (Maj. opn., ante, at p. 474.) Its position has lost its support.
Under majority’s new “social utility” exception, the operator of a “socially beneficial” machine around horseback riders is required to take “reasonable
The majority purport to justify their “social utility” exception by applying the factors we identified in Rowland v. Christian. Those factors include: (1) the foreseeability of harm to the plaintiff; (2) the degree of certainty that the plaintiff suffered injury; (3) the closeness of the connection between the defendant’s conduct and the injury suffered; (4) the moral blame attached to the defendant’s conduct; (5) the policy of preventing future harm and the extent of the burden to the defendant; (6) the consequences to the community of imposing a duty to exercise care; and (7) the availability and cost of insurance for the risk. (Rowland v. Christian, supra, 69 Cal.2d at p. 113.)
The majority concede that the first Rowland factor (foreseeability) and the last (availability of insurance) weigh against creating an exception to the duty of ordinary care for “socially beneficial” machinery. Indeed, even the parties agreed that the injury was foreseeable and that insurance was available for such accidents. But the majority determine that the sixth factor (consequences to the community) is overriding. Thus, they conclude, as a matter of “social utility,” that the societal price of efficient garbage collection includes occasional uncompensated injury to horseback riders.
As applied to this matter, the majority’s “social utility” exception means that, as a matter of law, Crown did not owe any duty to avoid lifting and noisily shaking a large debris bin up and down—even if he actually saw a horse approach—so long as it “properly used [its truck] in the manner for which it was designed.” (Maj. opn., ante, at p. 474). It was obligated to take “reasonable protective actions” only if it knew that the horse had actually become frightened. (Id. at p. 477.)
I see no sound basis for the majority’s new “social utility” exception. In my view, all of the Rowland factors weigh against such an exception to the traditional duty of ordinary care—which simply requires that the operator of a vehicle or machine act reasonably under the circumstances to avoid injury to a person or animal.
Specifically, as to the sixth Rowland factor (the consequences to the community), I believe that Vehicle Code section 21759, which codifies the traditional duty of ordinary care, is a better indicator of contemporary public policy with regard to the duty of ordinary care around horses than the antiquated case law cited by the majority. It provides, in relevant part: “The driver of any vehicle approaching any horse drawn vehicle [or] any ridden
By analogy, I conclude that public policy dictates, in accord with the traditional duty of ordinary care, that if the operator of a “socially beneficial” machine (such as a garbage truck) actually sees—or reasonably should see—a horseback rider approaching, he is obligated to stop as necessary, or as signaled by the rider, to avoid frightening the animal and injuring the rider. It would be a question for the trier of fact whether it was reasonably necessary to operate the big, noisy machine for the few seconds it would take to let a horse go by.
The majority warn that, under the traditional duty of ordinary care, “all manner of actors”—including operators of leaf blowers, chain saws, and other “loud power tools" (maj. opn., ante, at p. 475)—would be subject to “potential liability, with obvious and detrimental consequences stifling to the community” {ibid.). Even assuming the “social utility” of leaf blowers and other machinery, liability for injury to a horseback rider would depend on the peculiar facts of the individual case. Moreover, it is difficult to conceive what “obvious and detrimental consequences stifling to the community” {ibid.) the majority fear from applying the duty of ordinary care to cases involving horseback riders. Would it really stifle the community of Burbank to require Crown’s driver, conducting a trash pickup next to what he knows is a bridle path, to look first and pause momentarily if he sees the occasional horseback rider passing by, in order to avoid frightening the horse? I doubt it.
III.
Even under the majority’s newly crafted “social utility” exception to the traditional duty of ordinary care, however, the Court of Appeal judgment, reversing summary judgment for Crown, must be affirmed.
Crown does not have absolute immunity from liability for accidents involving horseback riders. Under the majority’s “social utility” exception, it owed a duty of care if any of the following facts is established: (i) it operated the garbage truck in a careless or imprudent manner, or caused noises unnecessary to the regular operation of the machine; (ii) it failed to take reasonable protective actions after it knew that Parsons’s horse had actually become frightened; (iii) it operated the truck in an unnecessary or malicious
As to the first two of the foregoing considerations, the case must be remanded to the superior court. Crown has not carried its burden on summary judgment of establishing that there are no triable issues of material fact on these points.
Parsons and Crown expressly disputed whether Crown’s driver saw Parsons before he was thrown and injured—i.e., whether they made “eye contact” in the side-view mirror. Nor can we properly draw any certain inferences from the incomplete factual record before us—including the excerpted deposition testimony by Parsons appended to Crown’s motion for summary judgment—either about the direction from which Parsons approached the garbage truck or about when Crown’s driver first saw Parsons or when Parsons was first “within [his] view.” The deposition testimony concerning the incident was, at best, ambiguous on these points: “[M]y horse starts spinning and bolting. He continues and I see him in the side-view mirror and I’m thinking: Oh, my God. You know, shut it down, you’re scaring my horse to death. He proceeds to go ahead up with the trash bin and all I heard was—evidently there were bottles and cans in the trash bin and the loudest noise and I can’t begin to explain how loud the noise was. By then my horse is bolting and spinning and bucking and that’s when I landed in the Main Street on the concrete.”
The majority point to Parsons’s statement that he saw Crown’s driver “in the side-view mirror.” (Maj. opn., ante, at p. 462.) From that, they infer that his “horse reacted to the noise and became uncontrollable while [he] and his horse were behind [Crown’s] truck.” (Id. at p. 463.) They also observe that there was “no evidence” that Crown’s driver saw Parsons, or that Parsons “was within [his] view . . . until after [Parsons] was thrown and injured.” (Ibid.) From that, they infer that he did not. They err thereby.
Although the testimony could be understood to indicate that Parsons approached from behind—or, possibly, from the side—and the horse might have been invisible to Crown’s driver until after Parsons was injured, it could also be understood to indicate that Crown’s driver actually saw Parsons in the side-view mirror, and thus knew that a horse was approaching and that the horse was actually frightened. We simply do not know all the
Accordingly, I conclude that the judgment of the Court of Appeal, reversing the summary judgment in favor of Crown, should be affirmed.
Parsons’s statement of fact that he made eye contact with Crown’s driver was supported by his deposition testimony to the following effect: “[M]y horse starts spinning and bolting. He continues and I see him in the side-view mirror and I’m thinking: Oh, my God. You know, shut it down, you’re scaring my horse to death. He proceeds to go ahead up with the trash bin and all I heard was—evidently there were bottles and cans in the trash bin and the loudest noise and I can’t begin to explain how loud the noise was. By then my horse is bolting and spinning and bucking and that’s when I landed in the Main street on the concrete.” In opposition, Crown simply asserted, without citation to any supporting evidence, that its driver did not see Parsons until he was on the ground. The majority are wrong that Parsons’s statement was “wholly unsupported by any evidence.” (Maj. opn., ante, at p. 463, fn. 2.)
Significantly, under neither theory urged by Crown on summary judgment was it even an issue of material fact whether its driver saw Parsons before he fell from the horse; under its asserted “public policy” and “primary assumption of risk” exceptions it owed no duty of care regardless whether its driver made eye contact with Parsons or saw that the horse was frightened.
I note that beginning with footnote 2 and continuing throughout their opinion, the majority devote repetitive effort to disputing this and other points in my dissent. As Shakespeare wrote in Hamlet, “The [majority] doth protest too much, methinks.”
Contrary to the Court of Appeal’s conclusion, the doctrine of assumption of risk and the opinions in Knight v. Jewett (1992)
The majority also note Parsons’s testimony that “it’s a matter of split seconds when I turned onto that trail to what happened,” inferring therefrom that there was nothing Crown’s driver reasonably could have done to prevent Parsons’s injury. Again, the testimony is ambiguous: It may mean, as they conclude, that the injury itself occurred in an instant, or, instead, that the horse became frightened immediately after it turned onto the trail—leaving time for Crown’s driver to avert the injury. Determination of these facts, too, is properly for the trier of fact.
Dissenting Opinion
I dissent.
I agree generally with Justice Mosk’s dissenting opinion, and I agree with Justice Werdegar’s concurring opinion insofar as it states that in this case we should not depart from the normal negligence standard of care and that the cases the majority cites do not support a departure from that standard.
I write separately to explain and emphasize these points:
1. The majority’s attempt in this case to articulate a particular rule of tort liability for situations in which a machine frightens a horse, resulting in personal injury, continues a misguided trend of this court to set particular standards of care for various factual situations.
2. The particular standard of care the majority enunciates purports to be a general rule of nonliability for negligence, but upon examination it proves to be a rule that generally bars only strict liability while generally imposing liability for unreasonable (that is, negligent) conduct.
3. To the extent the majority’s particular standard of care does establish a general rule of nonliability for negligence, it is not supported by the weight of the decisions from this and other jurisdictions.
4. The majority misapplies established law on the standard and burden of proof on motions for summary judgment to conclude, erroneously, that defendant is entitled to summary judgment in this case.
Particularized Negligence Standards of Care
Generally speaking, under the law of negligence every person has a duty to refrain from acting in a manner that causes foreseeable injury to another.
It has long been recognized that duty issues and standard-of-care issues are closely related and that most standard-of-care issues can, but should not, be recast as duty issues. (See Coffee v. McDonnell-Douglas Corp. (1972)
The Majority’s Standard of Care
Referring to a group of earlier decisions by the appellate courts of California and other jurisdictions, the majority states: “. . . [T]he courts developed a remarkably uniform rule, holding that a plaintiff whose horse ‘shied’ or ‘spooked’ and caused damage because of the noise, sight, or odor caused by the defendant’s regular and necessary conduct, cannot state a cause of action for negligence, because the defendant in such a case has breached no duty of care.” (Maj. opn., ante, at p. 466, italics in original.) In other words, the majority has drawn the conclusion that in this group of cases the courts have not imposed negligence liability for conduct that is “regular and necessary.” But when have courts ever imposed negligence
Thus, I do not understand why the majority characterizes this as a “general rule of nonliability.” (Maj. opn., ante, at p. 469.) It can be so only if one is referring to strict liability rather than negligence liability. If there is general rule of nonliability for horse-fright injuries, it is a rule denying strict liability (that is, liability without fault), not negligence liability.
The majority states that this “general rule of nonliability” is subject to “ ‘exceptions,’ ” one of which occurs when “the defendant conducts or uses a train, automobile, or other device in a careless or imprudent manner . . . .” (Maj. opn., ante, at p. 469.)
Carefully examined, the majority’s newly discovered “rule” with its various “exceptions” turns out to be not a general rule of liability or nonliability, but a tortured restatement of the usual negligence standard of care.
Prior Decisions on Machine-Frightens-Horse Injuries
Decisions from California and other jurisdictions do not support a general rule of nonliability in negligence for injuries in machine-frightens-horse situations. To the extent the majority may be understood to establish such a rule, it does so without the benefit of substantial precedent. An examination of decisions from California and other jurisdictions indicates that courts have declined to impose strict liability while recognizing normal negligence liability for injuries in machine-frightens-horse situation.
Typical are the automobile cases. For example, the majority cites the following statement in Tyler v. Hoover (1912)
But the same authorities recognize negligence liability under the usual “reasonable person" standard of care. Thus, the driver of an automobile is “charged with the exercise of reasonable care to avoid frightening [horses], and if necessary to prevent an accident and injury from such fright to slow down or stop his automobile.” (Nelson v. Halland, supra,
In California, the Legislature has codified court decisions describing the scope of tort liability for injuries occurring when an automobile frightens a horse. Vehicle Code section 21759 provides: “The driver of any vehicle approaching any horse drawn vehicle, any ridden animal, or any livestock shall exercise proper control of his vehicle and shall reduce speed or stop as may appear necessary or as may be signalled or otherwise requested by any person driving, riding or in charge of the animal or livestock in order to avoid frightening and to safeguard the animal or livestock and to insure the safety of any person driving or riding the animal or in charge of the livestock.” This code section is by no means an anomaly. To the contrary, most states have similar provisions, which are generally deemed to be declaratory of existing common law. (See, e.g., McDonald v. Yoder (1909)
A second group of cases involves machines and other inanimate objects left in or near a street. In one such case, personal injuries resulted when a horse took fright at a disabled steamroller left along a public street. Noting that the municipality that owned the roller “is not an insurer of the safety of travelers upon its streets” (District of Columbia v. Moulton (1901)
In a third case, injuries resulted when a “horse took fright at a pile of stones, partially obscured by weeds, lying in the street, but outside of the improved and traveled portion thereof.” (Patterson v. City of Austin (1897)
A third group of cases deals with construction or similar operations conducted in or near a roadway. An early California decision provides support for the proposition that a person whose excavation work in a roadway is likely to frighten a gentle horse must take appropriate precautions, such as stationing a lookout to warn of approaching horses, so that the work may be suspended until the horses have passed. (Fallon v. United Railroads (1915)
Accordingly, decisions from California and other jurisdictions do not support the proposition that an owner or operator of machinery has no duty to guard against injuries caused by horses taking fright. Rather, review of the relevant authorities reveals that courts have conducted a case-specific analysis of the pertinent facts to determine whether a reasonable trier of fact
Standard and Burden of Proof on Summary Judgment
A defendant moving for summary judgment must show either (1) “that one or more elements of the cause of action . . . cannot be established” or (2) “that there is a complete defense to that cause of action.” (Code Civ. Proc., § 437c, subd. (o)(2).) Thus, “[t]he moving defendant bears the burden of proving the absence of any triable issue of material fact, even though the burden of proof as to a particular issue may be on the plaintiff at trial.” (Sanchez v. Swinerton & Walberg Co. (1996)
Under the 1992 and 1993 amendments of Code of Civil Procedure section 437c, a defendant moving for summary judgment may discharge its burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff’s case. (Lopez v. Superior Court (1996)
Until the moving defendant has discharged its summary judgment burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing “that a triable issue of one or more material facts exists as to that cause of action.” (Code Civ. Proc., § 437c, subd. (o)(2).)
On a motion for summary judgment, the moving party’s supporting documents “ ‘are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion.’ ” (Mann v. Cracchiolo (1985)
Application of Summary Judgment Standard and Burden of Proof
In support of its motion for summary judgment, defendant in this case submitted parts of plaintiff’s deposition testimony. (Defendant also submitted a copy of plaintiff’s complaint and a copy of its own response to plaintiff’s interrogatories, but neither item is material here.) In the offered parts of the deposition, plaintiff testified as follows:
On the morning in question, plaintiff rode his horse out of the Los Angeles Equestrian Center and turned left onto the dirt bridle path. As he did so, he looked to his right and saw defendant’s trash truck 10 feet away. The truck was not moving forward or backward but the driver was in the process of inserting the truck’s forks into the corresponding slots on a trash bin. The trash bin was just six inches from the bridle path, with a chain link fence between. Plaintiff had restrained his horse to a walking pace because it was a very dangerous area. After seeing the trash truck, plaintiff almost immediately sensed his horse beginning to tense up. Using the truck’s forks, the driver lifted the trash bin to the level of the truck’s windshield and proceeded to shake the bin up and down, apparently to settle the contents of the bin. As the noise increased, plaintiff’s horse began to spin and bolt. At this point, plaintiff saw the driver in the truck’s side view mirror and thought to himself, “Oh, my God. You know, shut it down, you’re scaring my horse to death.” The driver did not stop but proceeded to lift the bin above the trash truck, producing “the loudest noise” as bottles and cans fell from the bin into the truck. Plaintiff’s horse then bolted, spinning and bucking. Plaintiff was thrown off the horse; he landed on the concrete pavement of an adjacent street.
After plaintiff had submitted his opposition to the summary judgment motion, defendant lodged with the trial court a copy of the deposition of the driver, its employee. The deposition included the following passage, a portion of which the majority cites (maj. opn., ante, at p. 462, fn. 2):
“Q: When did you first notice that he [i.e., plaintiff] was bleeding?
“A: Since I saw him on the ground.
“Q: When you first saw him on the ground, you noticed that he was bleeding?
“A: No. Then I saw him that he was just lying on the ground.
*502 “Q: But you noticed that he was bleeding when you saw him?
“A: Right away after.
“Q: What was the first thing you did when you saw this man?
“A: I asked to myself, ‘What could have happened?’
“Q: What did you tell yourself?
“A: I didn’t think anything.
“Q: Did you think that maybe your emptying the trash had something to do with it?
“A: No.”
This showing was insufficient to sustain defendant’s burden of proof on its motion for summary judgment. Defendant failed to demonstrate either that plaintiff cannot establish one or more elements of his negligence cause of action or that defendant has a complete defense to that cause of action.
The members of this court agree that defendant’s moving papers did not establish an affirmative defense, and that the only element of plaintiff’s negligence cause of action defendant challenged through the moving papers was breach of the applicable standard of care. It also seems beyond dispute that defendant did not rely in its moving papers on factually devoid discovery responses by plaintiff. Rather, defendant undertook to prove its entitlement to summary judgment by means of affirmative evidence. Although at trial plaintiff will have to prove that defendant’s driver’s actions were not those of a reasonably prudent person under like circumstances, defendant, when it moved for summary judgment, assumed the burden of producing affirmative evidence, sufficient to convince any reasonable trier of fact, that its driver’s actions satisfied the normal negligence standard of care. Neither the part of the driver’s deposition that majority cites nor the parts of plaintiff’s deposition that defendant introduced, both of which we must strictly construe against defendant, establish that defendant’s driver’s conduct was necessarily that of a reasonably prudent person.
To explain why it concludes that defendant was entitled to summary judgment, the majority states: “There is no evidence that defendant operated its garbage truck in anything but the regular and necessary manner of a garbage truck [citation]. Nor is there evidence that defendant’s employee
The majority’s analysis, which relies entirely on the absence of evidence of certain facts, ignores the reversal of the normal allocation of the burden of producing evidence that occurs when a defendant moves for summary judgment. If the issue is what the trash truck driver knew and when he knew it, it was defendant’s obligation, as the party moving for summary judgment, to come forward with evidence on that point, even though at trial plaintiff will have this burden. Discharging this burden should not have been difficult for defendant, inasmuch as the driver was its own employee and had submitted to a deposition. If the driver had testified during his deposition, or was prepared to testify thereafter, that he did not see plaintiff or plaintiff’s horse until after he had completed the operation of dumping the bin, then defendant should have submitted that testimony in the form of an affidavit, declaration under penalty of perjury, or deposition transcript. Defendant did not do so.
This is a very ordinary negligence case that should have been tried to a jury (or to the court if the parties had waived a jury) so that the relevant facts could have been fully developed and so that the fact-specific question whether defendant’s driver exercised due care under all the circumstances could have been resolved as an issue of fact. The majority has short-circuited the normal trial process by (1) treating as legal questions of duty what are better viewed as factual questions of breach of the standard of care, and (2) ignoring the allocation of the burden of proof on summary judgment motions. Because I cannot agree with either the majority’s analysis or its result, I dissent.
Appellant’s petition for a rehearing was denied July 9, 1997. Kennard, J., was of the opinion that the petition should be granted.
The charging allegation of plaintiff’s complaint here is that “defendants, and each of them, negligently operated a trash collection vehicle so as to scare plaintiff’s horse, causing plaintiff to be thrown from the horse to the ground and proximately and legally cause injuries and damages to plaintiff as described below.” (Italics added.) This allegation fits squarely within the “exception” that the majority has articulated.
In the portion of the driver’s deposition that the majority quotes, and which I have quoted at greater length, the driver was referring only to his thoughts and observations after first seeing plaintiff on the ground. The driver was not asked whether he had previously seen plaintiff on horseback, nor do his responses relate to this crucial issue. The majority reaches the opposite conclusion only by taking the testimony out of context and ignoring the rule that on a motion for summary judgment the moving party’s evidence must be strictly construed against the moving party and in favor of the right to jury trial.
Because defendant produced no evidence that its driver was unaware of plaintiff’s presence throughout the emptying of the trash bin, there is no need to decide what evidence would have sufficed to create a triable issue of fact. Thus, there is no need to decide whether plaintiff’s testimony that he saw the driver in the side view mirror is sufficient to raise an inference that the driver also saw plaintiff. Nor is it necessary to decide whether a reasonable trier of fact might conclude that if the driver was aware of the proximity of the bridle path, the driver had a duty to look toward the path to determine the presence or absence of horses before commencing operations likely to frighten a gentle horse.
On one point I agree with the majority: The doctrine of assumption of risk, and in particular the opinions of various members of this court in Knight v. Jewett (1992)