Hojem v. Kelly

Decision Date14 February 1980
Docket NumberNo. 45878,45878
Citation93 Wn.2d 143,606 P.2d 275
PartiesBarbara D. HOJEM, Petitioner, v. John KELLY and Violet Kelly, husband and wife, d/b/a Kelly's Riding Stables, Respondents.
CourtWashington Supreme Court

Brothers & Coyne, Curtis J. Coyne, Seattle, for respondents.

HICKS, Justice.

Petitioner, Barbara Hojem, brought a personal injury action in King County Superior Court against the owners of Kelly's Riding Stables which resulted in a jury verdict in her favor. The trial court granted the Kellys' motion for judgment N.O.V. Hojem appealed and the Court of Appeals, Division One, by a divided court, affirmed the trial court. Hojem v. Kelly, 21 Wash.App. 200, 584 P.2d 451 (1978). We granted discretionary review and we affirm.

ISSUE

In her petition to this court for discretionary review, Hojem phrases the issue as follows:

The plaintiff was a paying customer at the defendants' commercial riding stables. The plaintiff fell off her horse on the defendants' premises and sustained a fractured vertebra while being chased by a riderless horse that was being boarded by the defendants and was under the defendants' care and control and was a "stalled" horse. The primary question is whether the defendants' failure to warn of the danger of riderless (horses) in the riding areas and defendants' failure to take any precautions to prevent riderless horses from intermingling in the riding areas constitutes negligence.

The determinative question on appeal is whether the trial court erred in granting defendants' motion for a judgment N.O.V. There is little controversy over applicable law, and, as noted by the dissenting judge in Hojem, the only issue is whether there was sufficient evidence of defendants' negligence to support the verdict. In retrospect, this may well be a case of a petition for discretionary review improvidently granted.

STANDARDS FOR JUDGMENT N.O.V.

A motion for a judgment N.O.V. should not be granted unless the court can say, as a matter of law, that there is neither evidence nor reasonable inference therefrom sufficient to sustain the verdict. All evidence must be viewed in the light most favorable to the party against whom the motion is made. Grange v. Finlay, 58 Wash.2d 528, 364 P.2d 234 (1961). There must be "substantial evidence" as distinguished from a "mere scintilla" of evidence, to support the verdict I. e., evidence of a character "which would convince an unprejudiced, thinking mind of the truth of the fact to which the evidence is directed." A verdict cannot be founded on mere theory or speculation. Arnold v. Sanstol, 43 Wash.2d 94, 98, 260 P.2d 327, 329 (1953).

ELEMENTS OF NEGLIGENCE ACTION

Hojem claims that the Kellys negligently failed to warn her of and insulate her from riderless horses. 1 To recover damages for negligence, plaintiff must prove the existence of a duty owed to her by defendants and a breach of that duty which is a proximate cause of the resulting injury. LaPlante v. State, 85 Wash.2d 154, 159, 531 P.2d 299 (1975). "The standard must be one of conduct, rather than of consequences." W. Prosser, Law of Torts § 31 at 146 (4th ed. 1971).

The trial court gave but a single unchallenged instruction on the Kellys' duty to Hojem:

The operator of a riding stable owes to a person who has an express or implied invitation to come upon the premises in connection with that business a duty to exercise ordinary care for his or her safety.

The only other guidance from the trial court was general definitions of negligence and ordinary care. A trial court's unchallenged instructions become the law of the case (Arnold v. Sanstol, supra); subject however, to the threshold test that there be sufficient evidence to take the case to the jury in the first instance. Walsh v. West Coast Coal Mines, Inc., 31 Wash.2d 396, 415-16, 197 P.2d 233 (1948).

Here, the trial judge had determined there was not sufficient evidence to go to the jury when, at the close of the case, he stated in ruling on Kellys' motion for a directed verdict:

I agree with you. I think the case should be dismissed right here and now. But I am going to let the jury have it anyway, and if they should award her anything, then I would take it away from the plaintiff and then let an Appellate Court decide, because that would save the county money because they wouldn't have to go through the four days that we have gone through already in trial.

EVIDENCE

Hojem had been a regular patron for 16-17 months at the Kelly stables, riding on its various trails and fields. She testified that she had ridden in the presence of riderless horses on previous occasions. Hojem was currently taking lessons in English riding techniques and on the day of the accident, she and a friend rented horses from the stables to practice for an hour. They rode to an empty enclosed riding field to practice. After approximately 45 minutes, a riderless horse appeared in the field. That horse, a gelding, was being boarded and "stalled" at the Kelly stables. There is no evidence as to how the riderless horse, Midnight, got out of its stall and into the field where Hojem was riding. The only evidence is that Midnight approached "Babe", the horse Hojem was riding; Babe began to run and Midnight followed or ran alongside.

There was no evidence that Midnight had exhibited dangerous or vicious propensities. 2 Rather, such evidence as was adduced on this point...

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