Tan v. Goddard

• Decision Date: 03 March 1993
• Docket Number: No. B058584,B058584
• Citation: 17 Cal.Rptr.2d 89,13 Cal.App.4th 1528
• Parties: Joo Leong TAN, Plaintiff and Appellant, v. Kristyn GODDARD, et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

Page 89

17 Cal.Rptr.2d 89

13 Cal.App.4th 1528

Joo Leong TAN, Plaintiff and Appellant, v. Kristyn GODDARD, et al., Defendants and Respondents.

No. B058584.

Court of Appeal, Second District, Division 4, California.

March 3, 1993.

As Modified March 5, and April 1, 1993.

Review Denied May 20, 1993.

[13 Cal.App.4th 1529] Craig W. Englund, Beverly Hills, for plaintiff and appellant.

Ahrens & Watten, Patrick Dirk Flannery and Stephen A. Rosa, Santa Ana, for defendants and respondents.

EPSTEIN, Associate Justice.

In this case, we apply Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696 and conclude that the trial court erred in granting summary judgment against appellant on the now rejected doctrine of implied reasonable assumption of the risk.

FACTUAL AND PROCEDURAL SUMMARY

Since this case reaches us after a full grant of summary judgment against the appellant, we review the moving and opposing papers to determine whether respondent had succeeded in negating at least one essential element in each of appellant's causes of action, or otherwise had established an entitlement to judgment as a matter of law. In doing so, we follow the familiar rule that respondent's declarations are strictly construed, and those of appellant liberally construed, to the end that "doubts as to the propriety of granting the motion must be resolved in favor of the party opposing the motion." (Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 874, 191 Cal.Rptr. 619, 663 P.2d 177; Stationers Corp. v. Dun Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785.)

In fact, however, there is little material dispute about the underlying facts; the issues before the trial court and here concern the proper application of legal principles to those facts.

Appellant, Joo Leong Tan, was a 26-year-old Malaysian who wanted to become a jockey. He enrolled in the World Jockey Racing School, the "dba" of Kristyn Goddard. Both are named as defendants in During his course of instruction at the school he had fallen from horses and had seen others fall, but had not witnessed a serious accident before his own, some eight months after he enrolled. Prior to the accident, he had only walked, trotted, jogged and lightly galloped horses and had not advanced to the point of running or racing a horse. He had been assured by the school staff that the horses he was given to ride were safe and stable animals, and he believed that to be true.

Tan's lawsuit, along with Bill Davis, the school's horse trainer, and the owner of the facility at which Tan's instruction, and his accident, occurred. At the time of his enrollment, Tan was not fluent in the English language and had no experience or knowledge about riding horses.

In May 1988, after returning from school break, Tan was told by Davis, the horse trainer, that one of the horses Tan had been riding had injured its left foot in its stall, and that he should ride the horse easily "to see how it was." Tan did as he was told, and found that the horse, Faraway Falcon, was "off"--that is, it did not walk or behave normally. He reported this to Davis, and repeatedly asked Davis if the horse was fit to ride. Davis repeatedly assured Tan that it was, and gave him precise instructions on where and how to ride the horse. Relying on Davis' experience and position at the school, Tan followed those instructions.

On May 26, 1988, Davis told Tan to exercise Faraway Falcon. While walking the horse from the stables, Tan noticed that it was still "off," and so informed Davis. Nevertheless, Davis instructed Tan to "backtrack" the horse. That meant jogging the horse on the school's outer track, in a direction opposite from that in which horses are normally ridden.

The school had been located at the Riders Up Farm in Hemet when Tan enrolled. Later, it moved to Leona Downs in Palmdale, and it was there that the accident occurred. The Leona Downs track was "very rocky, with the greatest concentration of rocks being on the outside portion of the track"--the portion Tan was told to use in jogging Faraway Falcon.

Tan followed Davis' instructions. While "taking it easy" with the horse on the outer track, Tan heard the horse step on an object, upon which the horse's front legs gave way and the horse went down on the track allegedly causing Tan's injuries. Tan had received no instruction on what to do if a horse went down.

Tan filed an action against Goddard, Davis, the school and the operators of Leona Downs. The suit was based on negligence, breach of warranty and premises liability. Goddard answered for herself and for the school as her DBA. Davis also answered. Later, a first amended complaint was filed, by stipulation, on the same theories as before. It, too, was answered by Goddard, Davis, and the operators of the Leona Downs track. It became the charging pleading.

After deposing Tan, Goddard and Davis brought a motion for summary judgment, arguing that Tan had released them from liability and that he had reasonably assumed the risk of the injuries he had suffered, and therefore was barred from recovery. The motion was contested.

After hearing argument on the motion, the trial court concluded that the contract signed by Tan lacked the necessary clarity to operate as a general release, and denied summary judgment on that ground. But the court also found that Tan reasonably and impliedly had assumed the risk of the kind of injury he had suffered and, on that ground, granted full summary judgment. ¹

Tan filed a timely notice of appeal.

DISCUSSION

The summary judgment motion in this case, and the principal appellate briefing, all occurred before our Supreme Court announced The plurality opinion in Knight, by Justice George, recounted the considerable confusion created in the cases by the ambiguous doctrine of assumption of the risk. (3 Cal.4th at p. 303, 11 Cal.Rptr.2d 2, 834 P.2d 696.) The issue was of largely academic interest so long as contributory negligence operated as a complete bar to a plaintiff's recovery of damages. But once the comparative negligence doctrine was adopted in Li, the issue became one of far more than rhetorical interest. (3 Cal.4th at pp. 304-305, 11 Cal.Rptr.2d 2, 834 P.2d 696.) Language in Li distinguished between reasonable and unreasonable assumption of the risk, and gave rise to the theory that the former was a complete bar to recovery, while the latter was merely subsumed under the comparative negligence rule. The Knight plurality rejected that dichotomy. (3 Cal.4th at pp. 307-311, 11 Cal.Rptr.2d 2, 834 P.2d 696.) It concluded, instead, that the real demarcation is between primary and secondary assumption of the risk. In primary assumption of risk cases, there simply is no duty of care owed to the plaintiff by the defendant, and without duty there can be no actionable negligence. In secondary assumption of risk cases, there is a duty but defendant's alleged breach may be offset by plaintiff's negligence under the Li doctrine. (3 Cal.4th at pp. 311-314, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

                its decision in Knight v. Jewett, supra, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696 and in a companion case, Ford v. Gouin (1992) 3 Cal.4th 339, 11 Cal.Rptr.2d 30, 834 P.2d 724.   At that time the law on implied reasonable assumption of the risk was in doubt, with authority that it did and did not survive adoption of the comparative negligence rule in Li v. Yellow Cab Co.  (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226.   The leading authority for the proposition that the doctrine did survive was Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 243 Cal.Rptr. 536;  the principal opposing case was Segoviano v. Housing Authority (1983) 143 Cal.App.3d 162, 191 Cal.Rptr. 578.   This split of authority was resolved by Knight and Ford, and we have had the benefit of supplemental briefing by the parties on the effect of those decisions on the issues before us now.  The new decisions are dispositive on the principal issue of implied reasonable assumption of the risk
                

That took the Knight plurality to an examination of duty in the context of the case before it. That case, like ours, arose from a summary judgment granted in favor of defendants. The plaintiff was a young woman who had engaged in a vigorous game of tag football after a Super Bowl game. Defendant, a player on the opposing team, ran into her, knocked her down, and stepped on her hand. This resulted in an injury to a finger that eventually led to its amputation. There was no evidence that defendant had intended to harm plaintiff. (3 Cal.4th at pp. 300-301, 11 Cal.Rptr.2d 2, 834 P.2d 696.) The court concluded that his conduct was, at most, negligent rather than reckless or intentionally harmful. (3 Cal.4th at p. 320, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

The plurality reviewed the body of case law concerning injuries to spectators and participants at athletic events. At least with the more active sports, most courts have concluded that players and operators owe no duty to coparticipants for injuries commonly associated with the sport. These risks often are inherent in the sport itself, such as moguls on a downhill ski slope. Using skiing as an example, the court pointed out that an operator of a ski resort has no obligation to remove moguls from the hill because while they are typical of conditions or conduct that may be seen as dangerous, they "often are an integral part of the sport itself." (3 Cal.4th at p. 315, 11 Cal.Rptr.2d 2, 834 P.2d 696.) But the operator does have a duty of due care to maintain towropes on the slope in a safe, working condition so that skiers are not exposed to an increased risk of harm. (3 Cal.4th at p. 316, 11 Cal.Rptr.2d 2, 834 P.2d 696.) The plurality also referred to the numerous cases in which players and spectators have been denied recovery for injuries that are considered to be inherent risks of the sport. (3 Cal.4th at pp. 316, 317, 319, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

This...