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Levinson v. Owens

August 26, 2009; as modified 09/25/2009

ELLYN LEVINSON ET AL., PLAINTIFFS AND APPELLANTS,
v.
BERT OWENS ET AL., DEFENDANTS AND RESPONDENTS.



APPEAL from a summary judgment of the Superior Court of Tehama County, Edward J. King III, Judge. Affirmed. (Super.Ct.No. CI56965).

The opinion of the court was delivered by: Scotland, P. J.

CERTIFIED FOR PUBLICATION

"The thrill of victory, the agony of defeat" are emotions usually associated with sports, but often follow the culmination of a lawsuit. In this case, they arose from both.

The victors in a lawsuit gathered at the cattle ranch of a prevailing party to celebrate with a barbeque. The attorney who secured the legal victory asked the hosts to allow her to ride one of their horses. After assuring them that she had ridden horses before, she saddled up on Pistol, a quarter horse trained as a cattle horse. Unable to control the horse when it later began to gallop, the attorney fell off and was injured. No novice in court, she sued her social hosts for damages. The trial court held that primary assumption of the risk defeated her claims because a person who engages in the inherently dangerous activity of horseback riding generally assumes the risk of being injured by the horse or by the careless conduct of others involved in the activity. (Knight v. Jewett (1992) 3 Cal.4th 296, 316; e.g., Harrold v. Rolling J Ranch (1993) 19 Cal.App.4th 578, 585-588.)

On appeal, she concedes the doctrine of primary assumption of the risk applies to horseback riding but contends that triable issues of material fact exist as to whether the social hosts, the owners of Pistol, breached a duty to not recklessly "increase the inherent risks of riding by: (1) placing [her] on Pistol, [a horse specially trained for sorting cattle on the ranch and for reining and team penning events at amateur competitions,] thus creating a mismatch between [her] inability to control a horse and Pistol‟s highly-trained abrupt behaviors; (2) failing to ask [about] her skill level in riding and controlling horses; (3) failing to warn [her] of Pistol‟s trained behaviors of starting, stopping and turning abruptly; (4) telling [her] not to control Pistol by pulling on the reins; and (5) giving [her] no instruction on how to control Pistol."

We shall affirm the summary judgment entered in favor of the owners of Pistol. As we will explain, they were not commercial operators whose services and horses were for hire for a leisurely, supervised trail ride; indeed, they were not organizers or sponsors of any horseback riding event. As hosts of a social gathering at their cattle ranch, they simply granted a guest‟s request to take one of their horses for an unsupervised ride in a large field after she assured them that she had previously ridden horses. Pistol, trained to engage in abrupt movements when working cattle or performing in a rodeo, was precisely the type of horse that the guest would expect to ride in an open field at the cattle ranch. Thus, Pistol was not "unduly dangerous" for that purpose. And undisputed evidence showed that, when ridden as a pleasure horse, Pistol was a gentle horse who had "never [before] run off or hurt anyone." No evidence was submitted which would support an inference other than that Pistol was simply "a "horse behaving as a horse‟" (Harrold v. Rolling J Ranch, supra, 19 Cal.App.4th at pp. 581, 587, 588) when he uncharacteristically galloped off and the rider was injured when she did not control him. Although, in hindsight, it became evident the injured rider lacked the skills to control a horse in that setting, the owners of Pistol were entitled to accept the rider‟s representation that she had experience riding horses, thus indicating she knew how to control horses. To impose a duty on the social host to second-guess the guest‟s assertion and to cross-examine her about the extent of her experience would alter and chill the sport of horseback riding in the ultimate way--by precluding social guests from engaging in the sport. This is so because, if such an inquiry were necessary to avoid potential liability, few, if any, social hosts would consent to a guest‟s request to ride one of the host‟s horses. There being no evidence that Pistol‟s training as a cattle horse posed an increased risk to a rider not engaged in cattle herding or rodeo riding, the hosts had no duty to warn the rider about Pistol‟s skills as a cattle horse. Telling the rider not to pull back on the reins while a host was adjusting Pistol‟s stirrups is not susceptible to an interpretation by any person who has ridden a horse, including those with minimal experience, as a direction to never pull on the reins to control Pistol, even if he began to run away with her; thus, the admonition did not recklessly increase the risk of harm beyond that inherent in horseback riding. And, given the rider‟s professed experience in horseback riding, the hosts had no duty to give her instructions on how to control Pistol.

Simply stated, when the social guest asked her social hosts to allow her to ride one of their horses on their cattle ranch, and she professed to have the experience to do so, she "bit off more than she could chew" and has only herself to blame for her inability to control a horse that behaved as a horse when it uncharacteristically galloped off.

FACTUAL AND PROCEDURAL BACKGROUND

The Incident

In May 2005, defendants Bert and Anne Owens hosted a barbeque at their cattle ranch in celebration of a recent victory in which plaintiff Ellyn Levinson, an attorney representing the California Department of Conservation, successfully moved for summary judgment against Tehama County, convincing the Superior Court to enjoin the county from approving a lot line adjustment until it had complied with the Williamson Act. (For simplicity and to avoid confusion, we will henceforth refer to Bert and Anne Owens by their first names.) Bert was one of the landowners involved in the litigation. Pleased with the outcome, he invited Levinson, and others who had an interest in the litigation, to come to the ranch for a barbeque. Levinson brought her daughter, Rachel.

Prior to the barbeque, Levinson inquired whether she and Rachel would be able to do some horseback riding while at the ranch. Anne asked if Levinson had ridden horses before; Levinson said that she had. Impressed with Levinson‟s confident demeanor and competence during the litigation, Anne did not further question Levinson‟s riding ability. Anne explained: "I took her [statement] that she‟s ridden [to mean that] she‟s ridden."

Before the barbeque was served, guests who expressed interest in horseback riding (including Levinson, Rachel, and Susan Oliva, the wife of a Department of Conservation lawyer) walked to the barn.

A horse named Tango was already saddled, having been worked earlier in the day. Oliva was selected to ride Tango because she wanted a horse that was "really tired" and would do nothing more than walk around. Pistol, a quarter horse trained as a cattle horse, was saddled by Rachel and Bert for Rachel to ride.

When Rachel changed her mind and decided not to ride, Levinson volunteered, "I‟ll get on the horse," and mounted Pistol. Because Levinson and Oliva earlier said that they had ridden horses before, Bert did not ask again whether they had horseback riding experience.

As Bert was adjusting the stirrups for her feet, Levinson pulled back on the reins, causing Pistol to rear his head up and begin to move around. Bert responded: "Don‟t pull back on the reins; the horse is sensitive."*fn1 At this point, one of the guests at the barbeque asked Levinson if she had ridden a horse before; Levinson told the woman she rode a horse "at the park." Aside from the rearing motion when Levinson pulled back on the reins, Pistol did nothing to make Levinson feel uncomfortable about being on the horse. Bert then led Levinson and Pistol into a small corral where Oliva and Tango were already waiting; the women walked their horses around the small corral for several minutes before Bert opened the gate separating the small corral from a large field, which was also described as a pasture or big corral. Neither Levinson nor Oliva had any problems riding the horses in the small corral.

When Levinson and Pistol entered the larger field, Pistol unexpectedly began to trot and then broke into a gallop. As Pistol galloped back to the small corral, Levinson‟s feet came out of the stirrups. Rather than pull back on the reins to try to slow Pistol down, she let go of the reins and held onto the saddle horn in an attempt to stay on the horse. When Pistol reached the corner of the small corral, he abruptly cut to the left, throwing Levinson from his back. Levinson‟s body slammed into a fence and ended up in a feed bunk. Her hip was shattered and her face was cut by barbed wire at the top of the fence.

No one at the barbeque had any idea what possessed Pistol to bolt from the larger field into the small corral with such tragic consequences.

Pistol's Disposition and Training as a Cattle Horse

Bert and Anne described Pistol as a gentle and well-behaved horse. Nothing in the record contradicts this description. Pistol was comfortable around people at the barbeque and calmly allowed himself to be surrounded by guests who wanted to pet him. Before galloping away with Levinson, Pistol gave no indication that riding him would present a problem. And, prior to this incident, Pistol had "never run off or hurt anyone" while he was being ridden.

Pistol is "finely trained" for sorting cattle on the ranch and for reining and team penning events at amateur competitions.

For working cattle on the ranch, Pistol is "trained to respond to the rider‟s directives and separate out one particular cow from the herd. When the rider places Pistol‟s head in the direction of the specific cow that is to be separated, the horse understands and takes the appropriate action to accomplish this." With guidance from the rider, Pistol applies pressure to the cow, moving closer to the cow in order to coerce it into moving in the direction the rider wants the cow to go--usually through a gate. A trained cattle horse must be able to quickly turn on his hind legs in order to outmaneuver the cow.

For amateur rodeo competition, Pistol is trained to "spin" and do a "sliding stop." A horse spins by planting its hind legs and making multiple turns in the same direction. This is accomplished by leg cues from the rider; a spin to the left requires the rider to nudge Pistol with her right calf and foot and gradually pull the rein to the left. A sliding stop involves the horse taking off at a fast gallop, approximately 20 miles per hour, and then sliding to a stop. In order to cue Pistol to take off at a fast gallop, the rider can "raise the reins slightly, make a clicking sound, or touch [Pistol] slightly [on his side] with [the rider‟s] boots."

The Complaint

Levinson and her daughter Rachel (plaintiffs) sued Bert and Anne (defendants) for negligence and negligent infliction of emotional distress, alleging that, among other things, defendants "had a duty not to increase the inherent risk of horseback riding" and "breached this duty and increased the risk inherent in horseback riding by selecting a horse that, by its very nature, training and disposition, was inappropriate, unsafe and unduly dangerous for a beginner rider such as [Levinson], to wit: the horse Pistol" and by "instructing [Levinson] never to pull back on the horse‟s reins." Plaintiffs further alleged defendants‟ negligence caused Levinson to experience physical injury, pain and suffering, and loss of earnings, and caused Rachel to suffer severe emotional distress as a result of having witnessed the accident and injury to her mother.

The Summary Judgment Motion

Defendants moved for summary judgment based on the doctrine of primary assumption of the risk, arguing that they owed no duty of care because Levinson‟s "decision to ride [Pistol] carried with it an assumed risk that she could fall" and defendants "did nothing to increase this inherent risk of horseback riding." Plaintiffs opposed the motion, arguing that "being catapulted from a horse bolting at a dead-run, that suddenly cuts abruptly left, ejecting the rider into a fence, is [not] an inherent risk of horseback riding," and that defendants recklessly increased the risks of horseback riding by (1) placing Levinson, an inexperienced rider, on a highly trained cattle horse; (2) failing to warn her that Pistol was "trained to, at the slightest squeeze, take off at a gallop" and "quickly stop from a dead run of about 20 to 25 [miles per hour], and that he could sit on his haunches and spin and turn"; (3) failing to ascertain that Levinson was an inexperienced rider whose only horseback riding involved trail ...


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