Ashwood v. Clark County

• Decision Date: 03 January 1997
• Docket Number: No. 26902,26902
• Parties: Ann ASHWOOD and Richard Ashwood, Appellants, v. CLARK COUNTY, a Political Subdivision, Nevada State Horseman's Association, a Nevada Corporation, Southern Nevada Hunter Jumper Association, a Nevada Corporation, and Dixie Bennett and John Doe Bennett, Husband and Wife, Respondents.
• Court: Nevada Supreme Court

Page 740

930 P.2d 740

113 Nev. 80

Ann ASHWOOD and Richard Ashwood, Appellants, v. CLARK COUNTY, a Political Subdivision, Nevada State Horseman's Association, a Nevada Corporation, Southern Nevada Hunter Jumper Association, a Nevada Corporation, and Dixie Bennett and John Doe Bennett, Husband and Wife, Respondents.

No. 26902.

Supreme Court of Nevada.

Jan. 3, 1997.

Davidson & Myers, Las Vegas, Snyder & Wenner, Phoenix, AZ, for Appellants.

Edwards & Hale and Sharon Gwin Immerman, Las Vegas, for Respondent Clark County.

Beckley, Singleton, Jemison & List and Daniel F. Polsenberg, Las Vegas, for Horseman's Association and Bennett.

OPINION

SPRINGER, Justice.

This is an appeal from a summary judgment in favor of the respondents in a negligence action. The claimed negligence arouse out of an incident in which the injured plaintiff, appellant Ann Ashwood, injured her knee as she attempted to come to the assistance of a fallen horseback rider at Horseman's Park in Las Vegas. Ashwood was in the barn area of the park at the time she learned of the accident. Ashwood at first tried to reach the fallen rider by leaving the barn area through a nearby gate, but found that the gate was locked. There was another gate nearby, less than 150 feet from the locked gate; nevertheless, Ashwood sued Clark County and others claiming that they had a duty to keep the locked gate open and that breach of that duty was the cause of her injuries.

Because we are asked to rule on the correctness of the trial court's ruling that no duty was owed by any of the respondents to keep the gate unlocked, it will be necessary for us to relate the facts relating to Ashwood's claims in some detail. Because this case is before this court upon appeal of an award of summary judgment, the facts are related in the light most favorable to appellant. See Butler v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663 (1985).

On September 1, 1990, Ashwood and her family attended a horseshow at Horseman's Park in Las Vegas. The park is owned by defendant/respondent Clark County. On the date in question, the park was leased to defendant/respondent Nevada State Horseman's Association (NSHA), the sponsor of the event.

The park includes a barn area surrounded by a chain-link fence. There are several gateways through the fence, although on the night in question only the main gateway to the south remained unlocked. Ashwood was assigned a stall in Barn "C" near the western fence line. While in the barn area, she heard the sounds of a runaway horse and cries for help. She observed a rider lying on the ground in an open area to the west of the barn area and on the other side of the fence.

Ashwood, who is trained in CPR, believed that the fallen rider needed immediate assistance and ran toward the nearest gate in the barn area fence to assist the injured rider. The nearest gate was the west gate, which was locked. Concerned that the fallen rider might be unconscious and not breathing, Ashwood attempted to climb over the chain-link fence, rather than run through the open main gate approximately 150 feet away. Unfortunately, Ashwood fell in the process and sustained a severe injury to her knee.

Ashwood brought suit against Clark County, the NSHA, and the manager of the barn area, Dixie Bennett (referred to collectively as "Respondents"). Ashwood claims that Respondents are liable in negligence for failing to keep the west gate unlocked. After substantial discovery, Respondents moved for summary judgment. Ashwood filed a response to Respondents' motion and filed a cross-motion for partial summary judgment on the issue of duty.

In support of her motion for summary judgment, Ashwood presented the district court with the affidavit of Dan Cashdan (Cashdan), a registered civil engineer employed by the State of Nevada. Cashdan is thoroughly familiar with the Uniform Building Code ("U.B.C.") in effect in Clark County at the time of the incident, and his duties include reviewing building plans for compliance with the Building Code. Cashdan testified that the Building Code required the west gate be operable from inside the barn area. According to Cashdan, the padlocked west gate was a "clear violation" of the Building Code and a danger to public safety.

Ashwood also supported her motion with the affidavit of Drusilla E. Malavase (Malavase), an expert in equestrian training and safety for the past forty years and an organizer of horseshows. Malavase testified that Respondents' conduct was below the national standard of care, which "mandates that gates shall not be locked during the show and while the public is present." According to Malavase:

It is a known risk of and a common occurrence at horseshows for horses to behave erratically and endanger people in the area. This is especially true in a barn area where many horses congregate. It is highly foreseeable that an emergency will occur requiring people to exit the barn area quickly. In addition, to avoid the hazard of panic which can occur in these emergency situations, it is essential that exits in the barn area remain open and usable. By having the gate locked every person in the barn area was placed at risk and in danger. In so doing, the NSHA clearly fell below the standard of care of a reasonable person or group conducting a horseshow like the Labor Day Show.

Ashwood also presented the district court with the lease agreement between NSHA and Clark County, under which NSHA was obligated to comply with all laws and ordinances of the State of Nevada and Clark County. The lease agreement provided, among other things, that:

[N]o portion of the sidewalks, entries, passages, elevators, ramps, stairways, or access to public utilities of said buildings or grounds shall be obstructed or used for any purpose other than for ingress and egress to and from the premises.

Finally, Ashwood presented evidence that, at past horseshows, people had climbed over fences to rescue fallen riders.

On January 20, 1994, the district court granted Respondents' motion for summary judgment and denied Ashwood's cross-motion for partial summary judgment. On February 2, 1994, the district court entered judgment in favor of Respondents. Ashwood appealed.

Ashwood contends that the district court erred in granting summary judgment because there are material facts remaining to be tried and that, therefore, respondents were not entitled to judgment as a matter of law.

The first question raised by appellant Ashwood is whether, as a matter of law, the trial court erred in ruling that no duty was owed to her to keep the gate in question unlocked. In this regard Ashwood claims that respondents owed her a common law duty, that respondents were guilty of negligence per se, and that respondents owed her a contractual duty to keep the west gate unlocked. We consider each of these claims in turn.

Common Law Duty

It is the courts and not juries that have the ultimate responsibility of defining duty in relation to particular circumstances and to define the legal standard of reasonable conduct "in the light of the apparent risk." Merluzzi v. Larson, 96 Nev. 409, 412-13, 610 P.2d 739, 742 (1980) (quoting W. Prosser, Law of Torts, § 53 at 324 (4th ed.1971) (emphasis added)), overruled in part on other grounds, Smith v. Clough, 106 Nev. 568, 570 n. 2, 796 P.2d 592 (1990). By defining the scope of duty in negligence cases that come before them, the courts are making a vital "expression of the aggregate of those policy considerations which cause the law to conclude that protection is owed." Merluzzi, 96 Nev. at 409, 610 P.2d at 742.

Ashwood presents two arguments on the duty question. First, she argues that there was a specific duty to keep the west gate unlocked because it was foreseeable that in an emergency she would need to use the padlocked gate to exit the barn area. Ashwood also argues that the respondents should have foreseen that during an emergency people would attempt to exit the barn area by climbing the fence if the gate were locked.

Foreseeability of harm is, of course, a predicate to establishing the element of duty. Id. at 414, 610 P.2d at 742; and respondents contend that a fallen rider in another part of the park is not the kind of foreseeable emergency that would give rise to a duty, enforceable by Ashwood, to keep the west gate unlocked. Respondents emphasize the unquestioned fact that there was an alternate safe means for Ashwood to carry out the intended rescue, namely, by going through the other, unlocked main gate that was less than 150 feet away. Respondents argue that there was no duty to provide the shortest or quickest route to any area of the horseshow grounds.

Ashwood has presented no evidence to suggest that the main gate, located 150 feet away from the locked gate, would have been inadequate to effect the intended rescue. Ashwood did not contend that she was physically incapable of traversing the additional distance nor that going to the open gate would have put her in personal danger or unacceptably delayed her attempted rescue. The exigent circumstances presented by the fallen rider did not constitute the kind of emergency alluded to by Ashwood's own experts--such as a fire, panic, or stampede--where an alternative means of egress may not have been reasonably available and where the immediacy of the danger combined with the inability to use the locked gate might have necessitated an attempt to scale the fence rather than to proceed to the unlocked gate. Under the circumstances, we agree with Respondents that this case really boils down to whether there existed a duty to provide Ashwood the shortest or quickest route from one area of the park to another. We conclude that there was no such duty. Accord Nicoletti v. Westcor, Inc., 131 Ariz. 140, 639 P.2d 330, 333 (1982) ("The landowner has a duty to provide a reasonably safe means of ingress and egress for those who enter onto the land.... The landowner, however, does not have...