Cohen v. Five Brooks Stable

Decision Date14 February 2008
Docket NumberNo. A116938.,A116938.
Citation159 Cal.App.4th 1476,72 Cal.Rptr.3d 471
CourtCalifornia Court of Appeals Court of Appeals
PartiesSusan COHEN, Plaintiff and Appellant, v. FIVE BROOKS STABLE, Defendant and Respondent.

Frank J. Christy, Jr., Law Offices of Frank J. Christy, Petaluma, for Appellant.

Edward C. Schroeder, Jr., Selman Breitman LLP, San Francisco, for Respondent.


Appellant Susan Cohen sustained injury as a result of a fall from a horse during a guided trail ride provided her by respondent Five Brooks Stable. Two questions are presented: whether by signing a "Visitor's Acknowledgement of Risk" (the Release) appellant expressly waived her negligence claim and, if not, whether respondent is nevertheless exonerated by the doctrine of primary assumption of risk. Granting summary judgment on the ground that the Release constituted an express waiver, the trial court found it unnecessary to inquire into the applicability of the doctrine of primary assumption of risk.

We shall conclude, first, that the Release does not clearly and unambiguously inform an ordinary person untrained in the law that its purpose and effect is to exempt respondent from liability for its own negligence. We shall also conclude that summary judgment is not supported by the doctrine of primary assumption of risk. Accordingly, we shall reverse the judgment.


In August 2004, appellant, her friend Kathy Lord, and two others went on a horseback ride on the Olema Trail in the Golden Gate National Recreational Area in Marin County (GGNRA) on horses rented from respondent. Mark Wimple, an employee of respondent, was their guide. During the course of the trip, appellant fell from her horse and was injured. The gist of the complaint is that Wimple, knowing the horses behind him would follow and adjust to the gait of his horse, suddenly caused his horse to gallop without warning the other riders, thereby causing appellant's horse also to gallop. Unable to control her bolting horse, appellant fell from the saddle and, with one foot caught in the stirrup, was dragged across the ground, sustaining injuries.

On October 5, 2005, appellant filed a complaint alleging a single count of negligence. On November 4, 2005, respondent answered with a general denial and raised 17 affirmative defenses. Seven months later, on June 5, 2006, respondent filed a motion for summary judgment based on two of those defenses: express and implied assumption of risk. The defense of express assumption of the risk was based on the Release appellant signed on the date of the incident.

Although the summary judgment motion was based primarily on express waiver based on the Release, respondent alternatively relied on the claim that it had no duty of care to appellant under the doctrine of primary assumption of risk because "a fall from a horse on a trail ride is a risk inherent in the sport." Acknowledging that an operator of a recreational sports facility does not have a duty to protect against risks inherent in the sport, appellant rests on the rule that such an operator does have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport. (Knight v. Jewett (1992) 3 Cal.4th 296, 315-316, 11 Cal.Rptr.2d 2, 834 P.2d 696 (Knight).) The theory of her complaint is that Wimple's conduct substantially increased the risk inherent in the trail riding of horses. In support of her argument that there were disputed issues of material fact with respect to that issue, appellant emphasized portions of her deposition testimony and that of Lord and Wimple demonstrating a conflict in the evidence as to whether Mark Wimple's conduct conformed to the standard of care he himself deemed applicable.

Wimple testified at deposition that the only gaits permitted on the Olema Valley trails were walking, trotting and cantering, but not galloping; he was instructed by his employer, and it was his custom, to obtain from "each person" in a group his or her consent to increase the gait from a walk to a trot, or from a trot to a canter; in obtaining such consent he normally turned around on his horse (which was always the lead horse) to face the members in the group; there were no circumstances "where you could run horses at a trot or a canter, without getting the consent of the people in your party." Wimple said that after obtaining consent from members of a group to trot or canter, he would announce to all of them that he was going to increase the gait of his lead horse before actually doing so; as, for example, by asking, "[y]ou guys want to canter?" When asked whether he did so before he cantered or galloped his horse on the way back to the stable and appellant was thrown from her horse, Wimple answered: "I believe that I did. But I cannot say for sure."

Wimple's recollection that he obtained appellant's consent and that of all other members of the group before allowing them to canter on the way back to the stable, and his implication that at the time he did so he turned around to look at them, is flatly contradicted by the testimony of appellant and Lord.

Appellant testified that after, the group had made a U-turn and was on its way back to the stable, she was behind Lord who was right behind Wimple, who was on the lead horse. At some point, Lord's horse suddenly leapt into a gallop, and appellant's horse and those of the two other riders all immediately followed suit. Appellant did not at the time know why Lord's horse bolted, but Lord later explained it was because Wimple suddenly urged his horse into a gallop. Appellant testified that at the time Lord's horse accelerated and a "split second" later, when her own horse started "galloping," appellant was unable to see Wimple, who was ahead around a bend in the trail. At no time during the return to the stable did appellant ever see Wimple turn around in his saddle or hear him "tell anybody that he was proceeding in a faster pace than a walk." After losing control of her horse, appellant lost her balance and fell off to the ground on the right side. Because her right foot was caught in the stirrup, she was for a period of time dragged along the ground on her buttocks and back and injured.

Lord testified that at the time of the incident she was a horse length behind Wimple and appellant was some distance behind her. Wimple's horse was never out of his control. Without advance warning to the riders behind him, Wimple intentionally "took off." According to Lord, Wimple's horse, which "looked like it was galloping to me," ran so far ahead of the others that Wimple "didn't know what his riders were doing behind him. And I had to yell at him to say: `Stop. Something has happened.' And then he comes back to us. When he finally gets back, he was more concerned about getting the horses so he didn't have to walk out, which we ended up doing anyway because [appellant] could not get on the horse." According to Lord, an experienced rider, "horses are herd animals" and instinctively follow the gait of the trail guide's lead horse. In her view a responsible trail guide would not, on the way back to the stable, have gone faster than a walk, and certainly not accelerated from a walk to a canter or gallop suddenly and without notice, as Wimple did. When Wimple's horse began galloping, Lord's horse "went crazy" and was briefly out of control. This also happened to Justin, one of the others in the group, who was riding behind appellant. He was fearful his galloping horse would trample appellant while she was being dragged along the ground with her foot caught in the stirrup. Justin fell off his horse while trying to guide it away from appellant.

The trial court never addressed the conflict in the evidence relating to Wimple's conduct, nor appellant's claim that this conduct negligently increased a risk inherent in horseback riding, focusing instead on the Release. The order granting summary judgment states that the Release was "`clear, unambiguous, and explicit, and ... expresses] an agreement not to hold [respondent] liable for negligence' [citation]" and that, the conduct of Wimple was within the scope of the Release. The court noted that the Release states a `specifically identified' risk of horseback riding, that a horse `may and will' `run' `without warning and without apparent cause,' and that this risk can arise from `movement of people [or] other horses.' Moreover, the Release also applies to `other unknown or unanticipated risks' that are `not specifically identified' therein." For these reasons, the court determined that, even if Wimple's conduct was negligent and increased the risk inherent in horseback riding, "[appellant] assumed the risk of the injuries that occurred."


Appellate review of a summary judgment is limited to the facts shown in the supporting and opposing affidavits and those admitted and uncontested in the pleadings. As in the trial court, the moving party's papers are strictly construed and the opposing party's are liberally construed. All doubts as to the propriety of granting the motion—i.e., whether there is any triable issue of material fact—are to be resolved in favor of the party opposing the motion. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769, 107 Cal.Rptr .2d 617, 23 P.3d 1143.) While appellate review operates under the same general principles applicable in the trial court, the appellate court must independently determine the construction and effect of the facts presented to the trial judge as a matter of law. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142, 12 Cal.Rptr.3d 615, 88 P.3d 517; Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505,1511-1515, 285 Cal.Rptr. 385.) "`As a corollary of the de novo review standard, the appellate court may affirm a summary judgment on any correct legal theory, as long as the parties had an adequate opportunity to address the theory...

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