Harrold v. Rolling J Ranch

• Decision Date: 21 February 1990
• Docket Number: No. B036168,B036168
• Citation: 266 Cal.Rptr. 734,7 Cal.App.4th 81
• Parties: Previously published at 228 Cal.App.3d 260, 235 Cal.App.3d 54, 7 Cal.App.4th 81 228 Cal.App.3d 260, 235 Cal.App.3d 54, 7 Cal.App.4th 81 Charlene I. HARROLD and John P. Harrold, Plaintiffs and Appellants, v. ROLLING "J" RANCH, a California corporation; the Great Outdoor American Adventure, Inc., a Washington corporation, and Does 1 through 100, Inclusive, Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

Page 734

266 Cal.Rptr. 734

Previously published at 228 Cal.App.3d 260, 235 Cal.App.3d 54, 7 Cal.App.4th 81

228 Cal.App.3d 260, 235 Cal.App.3d 54, 7 Cal.App.4th 81

Charlene I. HARROLD and John P. Harrold, Plaintiffs and Appellants, v. ROLLING "J" RANCH, a California corporation; the Great Outdoor American Adventure, Inc., a Washington corporation, and Does 1 through 100, Inclusive, Defendants and Respondents.

No. B036168.

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

Feb. 21, 1990.

As Modified March 21, 1990.

Review Granted May 23, 1990.

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 Rolling "J" Ranch and the Great Outdoor American Adventure, Inc.

JOHNSON, Associate Justice.

In this appeal, we consider whether the Supreme Court's adoption of the comparative fault system in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, abolished the defense of assumption of risk except in cases of express contractual assumption. We conclude assumption of risk remains a viable defense except where it has been subsumed under principles of comparative negligence.

We further conclude the trial court erred in granting summary judgment based upon the defendants' assumption of risk defense. Accordingly, the judgment is reversed.

STATEMENT OF FACTS AND PROCEEDINGS BELOW

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

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.

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 previously 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 failing 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 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 a defendant moves for summary judgment, his 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 by trial.  (DeRosa v. Transamerica Title Ins. Co.  (1989) 213 [7 Cal.App.4th 86] Cal.App.3d 1390, 1395, 262 Cal.Rptr. 370.)   Thus, summary judgment is proper here 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. THERE IS A CONFLICT OF OPINION WHETHER REASONABLE IMPLIED ASSUMPTION OF RISK SURVIVES LI V. YELLOW CAB CO.

The Harrolds argue implied assumption of risk was abolished with the Supreme Court's adoption of the comparative fault system in Li v. Yellow Cab Co., supra, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226. The California Courts of Appeal are divided on this question as are the courts in other states.

The majority of California Courts of Appeal have held the Supreme Court only abolished the assumption of risk defense where the plaintiff has acted unreasonably in assuming a known risk since such conduct is a form of negligence which is subsumed in comparative fault. The other jurisdictions and the commentators are more evenly divided concerning whether assumption of risk does and should survive adoption of a comparative fault system.

A. Assumption of Risk Doctrine Prior to the Supreme Court's Decision in Li v. Yellow Cab Co.

Prior to Li v. Yellow Cab Co., supra, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, the assumption of risk defense was available when a plaintiff voluntarily accepted a risk and such acceptance, either express or implied, was made with knowledge and appreciation of the risk involved. (Grey v. Fibreboard Paper Products Co. (1966) 65 Cal.2d 240, 243-244, 53 Cal.Rptr. 545, 418 P.2d 153; Vierra v. Fifth Avenue Rental Service (1963) 60 Cal.2d 266, 272, 32 Cal.Rptr. 193, 383 P.2d 777.) An indispensable element of this defense was that the plaintiff have actual knowledge of the existence of the specific danger involved. (Grey v. Fibreboard Paper Products Co., supra, 65 Cal.2d at p. 244, 53 Cal.Rptr. 545, 418 P.2d 153; Vierra v. Fifth Avenue Rental Service, supra, 60 Cal.2d at pp. 273-274, 32 Cal.Rptr. 193, 383 P.2d 777; Shahinian v. McCormick (1963) 59 Cal.2d 554, 567, 30 Cal.Rptr. 521, 381 P.2d 377.) Additionally, evidence showing the plaintiff had actual knowledge of the magnitude of the risk involved was required. (Vierra v. Fifth Avenue Rental Service, supra, 60 Cal.2d at p. 271, 32 Cal.Rptr. 193, 383 P.2d 777; Shahinian v. McCormick, supra, 59 Cal.2d at p. 567, 30 Cal.Rptr. 521, 381 P.2d 377.) If the evidence only showed the plaintiff should or could have discovered the danger by exercising ordinary care, then the only defense to be asserted by the defendant was contributory negligence and not assumption of the risk. (Grey v. Fibreboard Paper Products Co., supra, 65 Cal.2d at p. 244, 53 Cal.Rptr. 545, 418 P.2d 153; Hayes v. Richfield Oil Corp. (1952) 38 Cal.2d 375, 385, 240 P.2d 580.)

Finally, the assumption of risk defense could be asserted even where the plaintiff exercised due care in assuming the risk involved. (Grey v. Fibreboard Paper Products Co., supra, 65 Cal.2d at p. 244, 53 Cal.Rptr. 545, 418 P.2d 153.) Whether a plaintiff assumed the risk was a question of fact. (Sperling v. Hatch (1970) 10 Cal.App.3d 54, 62, 88 Cal.Rptr. 704.)

In sum, prior to Li v. Yellow Cab Co., supra, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, California recognized a plaintiff could be barred from recovery either by expressly or implicitly assuming the risk. Further, the assumption of risk doctrine would apply regardless of whether the plaintiff acted reasonably, i.e., with due care, when she assumed the risk.

B. The Supreme Court's Decision in Li v. Yellow Cab Co.

In 197...