Harrold v. Rolling J Ranch, B036168

• Decision Date: 15 October 1993
• Docket Number: No. B036168,B036168
• Citation: 23 Cal.Rptr.2d 671,19 Cal.App.4th 578
• Court: California Court of Appeals Court of Appeals
• Parties: Charlene I. HARROLD et al., Plaintiffs and Appellants, v. ROLLING "J" RANCH et al., Defendants and Respondents.

Page 671

23 Cal.Rptr.2d 671

19 Cal.App.4th 578

Charlene I. HARROLD et al., Plaintiffs and Appellants, v. ROLLING "J" RANCH et al., Defendants and Respondents.

No. B036168.

Court of Appeal, Second District, Division 7, California.

Oct. 15, 1993.

Shernoff, Scott & Bidart and Marian H. Tully, Claremont, for plaintiffs and appellants.

Cassidy, Warner, Brown, Combs & Thurber and David K. Thurber, Santa Ana, for defendants and respondents.

FRED WOODS, Associate Justice.

This appeal is one of several implied assumption of the risk cases which the Supreme Court remanded for reconsideration in the light of Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696. When first decided by this court in 1990, we reversed a summary judgment in favor of defendant. In that opinion we first discussed the unsettled state of the law in the area of implied assumption of the risk and whether it was subsumed under comparative negligence, urging the Supreme Court to take and decide the issue. We then addressed the case before us, assuming for that purpose the implied assumption of the risk defense indeed survived the advent of comparative negligence. We applied the then prevailing test which focused on the plaintiff's subjective appreciation and voluntary acceptance of a specific risk. We found there was a triable issue whether the plaintiff was aware of the specific risk--the dangerous propensity of the horse defendant assigned her to ride--and thus whether she could be deemed to have voluntarily undertaken that risk.

The Supreme Court granted review and held this case along with more than a dozen other implied assumption of the risk cases while it decided Knight v. Jewett, supra, and Ford v. Gouin (1992) 3 Cal.4th 339, 11 Cal.Rptr.2d 30, 834 P.2d 724. In those opinions the high court determined implied assumption of the risk had survived comparative negligence. However, a "plurality" of the court rejected the definition of implied assumption of the risk we had used in deciding the instant case in 1989. Instead of the plaintiff's subjective state of mind the plurality ruled the inquiry should shift to the defendant's duty to the plaintiff in the context of the activity in which plaintiff was engaged. Only if we conclude defendant owed no duty to plaintiff does the implied assumption of the risk defense operate as a complete bar to plaintiff's cause of action. If a duty was owed, then plaintiff's reasonable or unreasonable assumption of the risk which defendant had created is merely one of the factors in the comparative negligence equation.

Applying the Jewett plurality's test to the facts of the instant case, we conclude a riding stable offering short term trail rides to casual riders owes a duty to those to whom it rents horses to minimize the risk of harm--or at least not to aggravate that risk--by supplying reasonably safe horses or warning riders of the propensities of those which pose a danger. But under the peculiar facts of this very close case that duty did not materialize. We further conclude under Jewett that primary assumption of the risk bars plaintiff's recovery as a matter of law.

STATEMENT OF FACTS AND PROCEEDINGS BELOW

The following summary of the facts is based on allegations in plaintiff's complaint which were not controverted by defendant's evidence at the summary judgment proceeding as well as evidence adduced in connection with the summary judgment motion.

In September 1983, plaintiffs Charlene and John Harrold (collectively referred to as the Harrolds) became members of a resort owned by defendant Great Outdoor American Adventures, Inc. (GOAA). In November 1983, the Harrolds took a weekend vacation at GOAA's resort.

There, the Harrolds learned GOAA offered horseback riding to its members at nearby stables. The stables were operated by defendant Rolling J Ranch.

Charlene Harrold, two of her friends, and two young girls chose to go horseback riding. GOAA transported the group to the Rolling J stables. There, the group members were given their choice of horses. Ms. Harrold initially chose one horse but, after some misgivings, selected another horse to ride for the day. After the riders selected their horses, Rolling J employees saddled the horses.

The five riders were escorted by two wranglers. One wrangler rode at the head of the group and the other at the end. The wranglers were employed by Rolling J. Before starting the ride, the riders were instructed on certain basics of horseback About 20 to 30 minutes into the ride, one of the young girls complained she was cold. Ms. Harrold decided to give the jacket she was wearing to the young girl. Having experienced no problems with the horse during the ride, Ms. Harrold wrapped the reins around the saddle horn. She then started to remove her jacket from her shoulders.

riding, such as how to signal and command the horse. The riders were also warned not to run the horses.

While both of her arms were still in the sleeves and caught behind her, the horse suddenly spooked. Ms. Harrold tried, but was unable, to remain on the panicked horse. When the horse bucked for the second time, Ms. Harrold was thrown to the ground landing on her tailbone.

Unbeknown to Ms. Harrold, on a previous ride, this same horse had spooked and thrown a rider when that rider took off and waved a hat. Defendants neither warned Ms. Harrold of this prior incident nor did they retrain the horse to avoid the recurrence of a similar incident.

The Harrolds commenced an action against defendants GOAA, Rolling J, and Jack Suderman alleging defendants negligently failed to warn Ms. Harrold of her horse's unstable temperament and tendency to throw riders and failed to provide her with a safe horse to ride. ¹ The Harrolds also alleged defendants negligently maintained their premises and willfully failed to warn of the property's dangerous condition.

Defendants answered by filing a general denial and, inter alia, raised the affirmative defense of assumption of risk. Defendants subsequently moved for summary judgment solely on this affirmative defense. Defendants argued Ms. Harrold, by virtue of her experience as a rider, knew of the risks involved in horseback riding and voluntarily assumed such risks when she commenced the ride.

The evidence before the trial court concerning the summary judgment motion showed Ms. Harrold had prior experience with horses. However, the evidence was in conflict as to the degree of her expertise.

Ms. Harrold knew how to guide a horse to the left and right, make it stop, trot, and gallop, and how to bridle and saddle a horse. In a note prepared for the stables explaining how the accident occurred, Ms. Harrold wrote: "I am an experienced rider and I understand that I was the second person thrown by the same horse. I guess even the best are thrown.... Accidents happen." In her deposition, Ms. Harrold explained her reference to "the best being thrown" was not intended to refer to herself. Rather, it was a general comment referring to "any good rider." Further, she considered a person to be an experienced rider if she could saddle and ride a horse.

The evidence also showed Ms. Harrold never rode a horse more often than once a month, she had never been a member of a riding club or academy, and she had never taken care of horses or fallen off of one. Further, she always rode with one of her adult sons. Additionally, she had only ridden a horse once in the five years preceding the accident.

The trial court granted the summary judgment motion, stating: "Maybe it's because of the disadvantage. I have a little too much knowledge of ... horses, and that's why I think when you get on a horse and you are going to ride on [sic] the outdoors, whether there are wranglers all over, you are assuming a risk that you can fall off the horse." The Harrolds timely appealed.

DISCUSSION

I. STANDARD OF REVIEW.

The standard of review for summary judgments is well-settled. Where defendants move for summary judgment, their

                declarations and admissible evidence must either establish a complete defense to the plaintiff's action or conclusively negate a necessary element of the plaintiff's case and demonstrate, under any cause of action, no material factual issue requires resolution [19 Cal.App.4th 584] by trial.  (DeRosa v. Transamerica Title Ins. Co.  (1989) 213 Cal.App.3d 1390, 1395, 262 Cal.Rptr. 370.)   Thus, summary judgment is proper here only if the defendants are legally entitled to raise the assumption of the risk defense and have conclusively established all of the necessary elements of that defense
                

II. THE IMPLIED ASSUMPTION OF THE RISK DEFENSE AFTER JEWETT.

While recognizing there is a profound analytical schism on our high court as to assumption of the risk doctrine, we reexamine and decide this case under the plurality view which holds the critical inquiry is whether the riding stable owes a duty of care to riders who rent horses for trail rides. Having been well focused by the high court on the element of duty in Jewett, unlike our previous holding, we now conclude there are no triable issues as to whether the assumption of the risk defense constitutes an absolute bar to appellants' action. Accordingly, summary judgment was proper and we affirm the judgment.

Under the analysis adopted in the "plurality" decision in Jewett, assumption of the risk is an absolute defense only when public policy dictates the class of which a defendant is a member should owe no duty of care to the class of which a plaintiff is a member in relation to the activity in which they are involved. According to this analysis, the inquiry does not begin with the question whether the plaintiff assumed the risk, in this instance the question whether this rider subjectively comprehended the precise risk this particular horse was easily spooked. Rather the inquiry begins--and ends--with an analysis of whether the defendant owed a duty to a plaintiff after assessing factors such as...