Eriksson v. Nunnink, E049392.

• Decision Date: 10 January 2011
• Docket Number: Certified for Partial Publication. ,No. E049392.,E049392.
• Citation: 120 Cal.Rptr.3d 90,191 Cal.App.4th 826
• Parties: Karan ERIKSSON et al., Plaintiffs and Appellants, v. Kristi NUNNINK, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

120 Cal.Rptr.3d 90

191 Cal.App.4th 826

Karan ERIKSSON et al., Plaintiffs and Appellants,

v.Kristi NUNNINK, Defendant and Respondent.

No. E049392.

Certified for Partial Publication.^*

Court of Appeal, Fourth District, Division 2, California.

Jan. 10, 2011.

Butler & Dodge, Terrence L. Butler, Beverly Hills, and Anne G. Koza for Plaintiffs and Appellants.

Horvitz & Levy, Lisa Perrochet, James A. Sonne, Encino; Soltman, Levitt, Flaherty & Wattles and Garth M. Drozin for Defendant and Respondent.

OPINION

KING, J.

I. INTRODUCTION

Plaintiffs and appellants Karan and Stan Eriksson are the parents of Mia Erikkson.¹ Mia was an avid horse rider and equestrian competitor. Defendant and respondent Kristi Nunnink was Mia's riding coach. In November 2006, Mia participated in an equestrian competition at Galway Downs (Galway) in Temecula. She was 17 years old at the time. Although Mia's horse was recently injured in another competition, Nunnink persuaded Mia's mother, Karan, that the horse was fit to ride in the Galway event. Based on Nunnink's representations, Karan allowed Mia to compete. During the cross-country portion of the competition, Mia's horse tripped over a hurdle. With the Erikssons looking on, Mia fell off the horse and the horse fell on Mia, causing Mia's death.

The Erikssons sued Nunnink for wrongful death and negligent infliction of emotional distress. They alleged that Nunnink "increased the risk [of harm] reasonably assumed by" Mia when she allowed Mia to ride a horse that "was unfit to ride because of prior falls and lack of practice" and concealed this condition from the Erikssons. Nunnink moved for summary judgment, which the trial court granted. After the entry of judgment, the Erikssons appealed.

Nunnink's motion was based on the doctrines of primary assumption of the risk and express contractual assumption of the risk. More specifically, Nunnink argued that the risk of death or serious injury to the horse rider is inherent in the sport of cross-country jumping and, alternatively, that Mia and Karan signed a pre-accident release, releasing Nunnink from any and all liability. Based on these arguments, Nunnink contended that the facts "show that [she] neither owed nor breached any duty, legally causing" the accident involving Mia. The trial court granted the motion. We reverse.

As to primary assumption of the risk, i.e., the element of duty, Nunnink failed to set forth facts in her separate statement of undisputed facts negating the Erikssons' allegation that Nunnink increased the risk of injury to Mia by allowing her to ride a horse that was "unfit to ride because of prior falls and lack of practice." Nunnink also failed to meet her burden of production as itrelates to the element of breach of duty. As to express contractual assumption of the risk, Nunnink again failed to meet her burden of production that she was not grossly negligent. We further conclude that, even if Nunnink met her initial burden, triable issues of fact exist as to duty, breach of duty, and gross negligence. As for causation, if Nunnink's undisputed statement of facts addressed the issue, the Erikssons have demonstrated a triable issue of fact.²

II. FACTUAL SUMMARY

Mia began riding horses at age six and had trainers and coaches from that timeon. She began competing at age 13 or 14. By the time of her death at age 17, she had participated in 25 to 30 "eventing" competitions and other horse shows. The sport of eventing involves three days of competition, including dressage, cross-country, and show jumping. Dressage is considered the least risky; cross-country the most dangerous. In 2006, Mia participated in eight such competitions in which she finished as high as 5th place and as low as 18th place. She competed approximately eight times in 2005 and five or six times in 2004.

Mia trained for eventing at Tahoe Meadows, a 25-acre equestrian facility owned by the Erikssons. Nunnink was her coach. Nunnink has been a professional trainer of horse riders for equestrian competitions for 25 years. She gave Mia three horse riding lessons each week, each lasting from one to three hours.

Mia's preferred horse for eventing was Koryography, or "Kory," a gelding owned by the Erikssons. In 2006, Kory was approximately seven years old. The regular care and feeding of Kory was performed by "Alfredo, the on-site person" at Tahoe Meadows, with Mia providing additional care. At competitions, Mia would equip, or "tack," Kory herself.

Nunnink considered herself to be Mia's coach, as distinguished from a trainer of Mia's horse. Although Nunnink was not responsible for Kory's regular care and feeding, Karan testified that she was "completely responsible for the horse" and was required "to make sure the horse was fit and ready to go" before an event. Nunnink attended all of Mia's eventing competitions, and would walk the courses with Mia and help her warm up for the events. Nunnink states that she was "personally familiar" with Kory and his "tendencies, abilities, and capacity of responding to Mia['s] commands...." She also stated she would "have said something" if she felt that Mia's horse should not be competing.

On May 21, 2006, Mia and Karan signed a document titled "RELEASE OF LIABILITY," in favor of Nunnink. The relevant terms of this agreement will be discussed below.

From the beginning of 2006, one of Mia's competitive goals for the year was to compete in a "two star" eventing competition at Galway. The event was to be held on November 3 through 5, 2006. It would be the first two star event Mia ever attempted. A two star event is more difficult than a one star event in that it has more jumps, the jumps are higher and wider, the speed is faster, and the course is longer. It was the highest level in terms of difficulty, size, and speed that Mia had attempted. Mia and Karan submitted an entry form for the event early in 2006.³

In September 2006, Mia competed in an event at Twin Rivers. There, according to Karan, "Kory rapped a fence really severely," resulting in a "big bruise." A veterinarian examined Kory and said "the horse could be iced and if he trotted out okay in the morning[,] she could jump him."

After Twin Rivers, according to Karan, Nunnink was worried about the cross-country course at Galway and "didn't like how Kory was going." Nunnink "wanted Mia to have more mileage" prior to Galway. Because of these concerns, Nunnink entered Mia in a three-day competition in Fresno known as "Ram Tap." Karan andNunnink agreed that if Kory "had trouble" at Ram Tap, "that was the end of the season."

The Ram Tap event took place on October 20 through October 22, 2006-two weeks before the Galway competition. Mia, riding Kory, completed the dressage portion of the event. On the second day, Kory tripped on a hay bale during the cross-country course and fell to his knees, causing the horse's head and nose to hit the ground. A veterinarian examined Kory and found that the horse suffered a concussion, an abrasion on his forehead, swelling and a hematoma on the pectoral area, a minor contusion in the chest, and small abrasions on his pectoral region. The veterinarian prescribed medication to reduce inflammation and recommended the use of ice to reduce swelling. Kory was withdrawn from the remainder of the Ram Tap competition. The next day, the veterinarian examined Kory again and found that the swelling had improved and made the following note: "complete exam—normal." The veterinarian also noted that Kory's next show was in two weeks. The veterinarian prescribed additional medicine, stated that the horse should be closely monitored for signs of head trauma, and instructed the Erikssons to follow up with their regular veterinarian.

Based upon the "trouble" Kory experienced at Ram Tap, Karan believed that Kory was a "lame" horse and that Mia's eventing season was over. In her declaration, Karan states, "it had been decided after the fall at Ram Tap ... that [Mia] would not be competing in the cross-country" at Galway. Accordingly, Kory's shoes were changed, he "was removed from feed," and they "did all the normal stuff that you do when a horse is done." Kory did not practice any jumps during the week after Ram Tap. As far as Karan was concerned, "everybody was done."

Although Mia was not to compete, Karan gave Mia permission to go to Galway because it was the end of the eventing season and Mia wanted to go to the parties and be with friends.

Karan testified to being misled about Mia's intentions at Galway: "there was," she said, "a little plot going on here" between Mia and Nunnink. Nunnink told Karan that they were "just going to throw the horse in the trailer so that it can get walked down there [at Galway]." Mia and Kory then travelled by car and trailer to Galway on Monday or Tuesday prior to the event. Nunnink arrived on Thursday, November 2, 2006. After Nunnink, Mia, and Kory arrived at Galway, Nunnink called Karan and said that Kory was "going smoothly" and they were "just going to ride dressage." Although Karan expressed concern because Kory still "had a huge wound thing going on," she agreed to allow Mia to perform the dressage portion of the competition.

The Galway course was designed, erected, maintained, and sanctioned by the United States Equestrian Federation and the United States Eventing Association. According to the rules applicable to the Galway event, each horse is checked by a veterinarian upon arrival and again prior to the dressage event. The first check, according to the rules, is "to establish first each horse's identity and veterinary history (vaccination, etc.) and second, each horse's state of health (but not its soundness)." According to an event official, the "primary reason for that examination is to make sure the horse is not sick and going to infect the other horses in the barn. It's basically you don't want an ill horse to contaminate other horses." There is no evidence in the record regarding the performance or results of this check on...