ERIKSSON v. NUNNINK












Filed 1/10/11







CERTIFIED FOR PARTIAL PUBLICATION^*


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

KARAN ERIKSSON et al., Plaintiffs and Appellants, v. KRISTI NUNNINK, Defendant and Respondent.

E049392 (Super.Ct.No. RIC498680) O P I N I O N

STORY CONTINUE FROM PART I….


As a general rule, all persons have a duty to use ordinary care to prevent others from being injured as a result of their conduct. (Rowland v. Christian (1968) 69 Cal.2d 108, 112; see also Civ. Code, § 1714.) Courts have, however, made exceptions to this general rule based on public policy considerations. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477.) Indeed, the determination that a duty exists in a particular situation is ultimately “‘an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.’” (Dillon v. Legg (1968) 68 Cal.2d 728, 734.) This determination must be made on a case-by-case basis. (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1193.)
One exception to the general rule of due care frequently applied in cases involving sports is the doctrine of primary assumption of the risk. (McGarry v. Sax (2008) 158 Cal.App.4th 983, 999.) The seminal case in the area is Knight v. Jewett (1992) 3 Cal.4th 296, 313 (Knight). Knight involved an action by a participant in a touch football game who was injured by the defendant, another participant. (Id. at pp. 300-301.) In affirming summary judgment for the defendant, the court explained: “Although defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport. Thus, although a ski resort has no duty to remove moguls from a ski run, it clearly does have a duty to use due care to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm.” (Id. at pp. 315-316.)^[1]
Knight emphasized the consequences, from a public policy perspective, of imposing a duty of care on participants in a sporting event: “[I]n the heat of an active sporting event like baseball or football, a participant’s normal energetic conduct often includes accidentally careless behavior. The courts have concluded that vigorous participation in such sporting events likely would be chilled if legal liability were to be imposed on a participant on the basis of his or her ordinary careless conduct. The cases have recognized that, in such a sport, even when a participant’s conduct violates a rule of the game and may subject the violator to internal sanctions prescribed by the sport itself, imposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule.” (Knight, supra, 3 Cal.4th at pp. 318-319.) The court held that a participant in a sport owes no duty to protect a coparticipant from “ordinary careless conduct committed during the sport”; rather, the participant breaches a duty of care and is subject to liability only if he or she “intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.” (Id. at pp. 318, 320, fn. omitted.)
After establishing the nature and scope of the duty owed to the plaintiff, the Knight court proceeded to consider whether the defendant breached this duty as a matter of law. (Knight, supra, 3 Cal.4th at p. 320.) Based on the evidence submitted by the parties, the court declared “that defendant was, at most, careless or negligent in knocking over plaintiff, stepping on her hand, and injuring her finger.” (Ibid.) As such, the conduct was “not even closely comparable to the kind of conduct—conduct so reckless as to be totally outside the range of the ordinary activity involved in the sport—that is a prerequisite to the imposition of legal liability upon a participant in such a sport.” (Id. at pp. 320-321.) Accordingly, the defendant did not breach any legal duty of care owed to the plaintiff and summary judgment was properly granted. (Id. at p. 321.)
Shortly after Knight, the issue of primary assumption of the risk was addressed in two decisions involving the liability of equestrian coaches: Tan v. Goddard (1993) 13 Cal.App.4th 1528 (Tan) and Galardi v. Seahorse Riding Club (1993) 16 Cal.App.4th 817 (Galardi). In Tan, the plaintiff, Joo Leong Tan, was a student at the defendant’s school for training horse jockeys. (Tan, supra, at p. 1530.) One of the school’s horse trainers, Bill Davis, told Tan that one of the horses, Faraway Falcon, had injured its left foot and that Tan “should ride the horse easily ‘to see how it was.’” (Id. at p. 1531.) Tan found that Faraway Falcon did not walk or behave normally. (Ibid.) He reported this to the trainer and asked whether the horse was fit to ride. The trainer assured him it was and gave Tan instructions on where and how to ride the horse. (Ibid.) Tan followed the instructions. (Ibid.) Later, with the knowledge that the horse “was still ‘off,’” the trainer instructed Tan to jog the horse on the school’s outer track in a direction opposite from that in which horses are normally ridden. (Ibid.) The outer track was very rocky. (Ibid.) Tan followed the instructor’s direction. (Ibid.) The horse “went down on the track,” injuring Tan. (Ibid.)
After discussing Knight, the Tan court found it distinguishable. “Our case,” the court began, “is different. Here, we do not deal with the relationship between coparticipants in a sport, or with the duty that an operator may or may not owe to a spectator. Instead, we deal with the duty of a coach or trainer to a student who has entrusted himself to the former’s tutelage. There are precedents reaching back for most of this century that find an absence of duty to coparticipants and, often, to spectators, but the law is otherwise as applied to coaches and instructors. For them, the general rule is that coaches and instructors owe a duty of due care to persons in their charge. [Citations.] The coach or instructor is not, of course, an insurer [citation], and a student may be held to notice that which is obvious and to ask appropriate questions [citations]. But all of the authorities that comment on the issue have recognized the existence of a duty of care. [¶] As we have noted, the Knight court makes several references to the role of the defendant in relation to the sport or activity as being an important aspect of the inquiry about duty. If the role is that of coparticipant, there generally is no duty with respect to ordinary negligence. But here we are dealing not with a sports participant, but with an instructor who is training a student how to become a participant. [¶] According to his testimony and declaration, Tan placed himself in the hands of the jockey school’s riding trainer. He did what the instructor, Davis, told him to do. Davis was not a coparticipant in sport with Tan, but was charged with instructing him how to ride a horse. It was Davis who assigned Faraway Falcon to Tan to ride, knowing that the horse was ‘off’ due to an injury; it was Davis who told Tan to jog the horse on the outer track on the school’s premises; and it was he who knew, or should have known, of the rocky condition of that track.” (Tan, supra, 13 Cal.App.4th at pp. 1534-1535.) The court concluded that “Davis’s role as riding instructor to Tan was such that he owed Tan a duty of ordinary care to see to it that the horse he assigned Tan to ride was safe to ride under the conditions he prescribed for that activity. His failure to do so is analogous to the example, cited in Knight, of the duty of the ski resort operator to use due care to maintain its towropes in a safe condition.” (Id. at pp. 1535-1536, italics added, citing Knight, supra, 3 Cal.4th at p. 316.)
In Galardi, supra, 16 Cal.App.4th 817, the plaintiff, Leslie Galardi, was an accomplished equestrian who had, for years, appeared in horse shows involving performance jumps and obstacles of various types. (Id. at pp. 819-820.) She was preparing for an upcoming show with her horse, Tomboy, at the defendant’s riding club. (Id. at p. 820.) With Galardi’s knowledge, an instructor at the club twice raised the height of two jumps without lengthening the distance between them. (Ibid.) The trainer then asked Galradi to ride through the course backward. (Ibid.) The horse successfully jumped the first jump but landed too close to the second jump. (Ibid.) The horse popped up into the air and knocked down the second jump, causing Galardi to fall and sustain injuries. (Ibid.)
The Galardi court applied “the analytical framework established by the Supreme Court” in Knight by looking “both to the nature of the sport and to the roles and relationship of the parties.” (Galardi, supra, 16 Cal.App.4th at p. 822.) In reversing summary judgment, the court explained: “Clearly, the sport of horse jumping has the inherent risk that both horse and rider will fall and suffer injury. The basic competitive character of the sport involves engaging increasingly higher jumps and at shorter intervals until at some point the competitors can no longer clear the obstacles without substantial contact. Collisions with the jumps and ensuing falls are thus an integral part of the sport. Riders may also fall from the horse as the result of other conditions such as a balking or stumbling mount. Such risks were clearly among those which plaintiff here knowingly encountered during her training, when the jumps were raised, intervals became more hazardous, and directions were reversed. [¶] However, the occasion of plaintiff’s fall and injury was not during competition with other riders. Instead, she had placed her training in the hands of defendants, who were employed to instruct and coach her. Their responsibilities were directly to plaintiff. While other riders, as coparticipants, would not have any special duty of care to plaintiff during competition to ensure she did not fall, defendants certainly had a duty to avoid an unreasonable risk of injury to plaintiff and to take care that the jumping array was not beyond the capability of horse and rider. Of course, the risk of injury, inherent in plaintiff’s activity, cannot be eliminated and in fact creates the challenge which defines the sport. The complaint and evidence presented in the trial court created a question of fact concerning whether defendants, who, we may infer, had knowledge and experience concerning the sport of horse jumping superior to that of plaintiff, negligently deployed the jumps at unsafe heights or intervals and thereby breached the duty owed to plaintiff.” (Id. at pp. 822-823.)
Three years later, in a case involving alleged instructor liability for a judo student’s injury, the court in Bushnell v. Japanese-American Religious & Cultural Center (1996) 43 Cal.App.4th 525 (Bushnell), offered an explanation of Tan and Galardi. In Bushnell, the plaintiff, Gary Bushnell, was injured while performing a judo maneuver during practice with his instructor. He sued his instructor’s club. Summary judgment was granted for the club based upon Knight. (Bushnell, supra, at p. 528.) The Court of Appeal affirmed, holding that the Knight standard applied in the student-instructor context. The court explained: “That an instructor might ask a student to do more than the student can manage is an inherent risk of the activity. Absent evidence of recklessness, or other risk-increasing conduct, liability should not be imposed simply because an instructor asked the student to take action beyond what, with hindsight, is found to have been the student’s abilities. To hold otherwise would discourage instructors from requiring students to stretch, and thus to learn, and would have a generally deleterious effect on the sport as a whole.” (Bushnell, supra, at p. 532.)
In so holding, the Bushnell court concluded that the decisions reached in Tan and Galardi “are wholly compatible with our understanding of the principles enunciated in Knight . . . .” (Bushnell, supra, 43 Cal.App.4th at p. 532.) Regarding Tan, the court stated: “The court in Tan held that the riding instructor ‘owed Tan a duty of ordinary care to see to it that the horse he assigned Tan to ride was safe to ride under the conditions he prescribed for that activity. His failure to do so is analogous to the example cited in Knight, of the duty of the ski resort operator to use due care to maintain its towropes in a safe condition.’ [Citation.] The Tan court thus simply reaffirmed that the party who controls the activity (such as a ski resort operator or the owner of a baseball stadium) may have a duty of care to provide a safe environment such that the activity can be performed without unnecessary risk. Nothing in Tan supports the argument that, absent reckless conduct or an intention to cause injury, an instructor who asks a student to take on a challenge in order to better his or her skills will be liable for injuries resulting from the student’s failure to meet that challenge. Failing to provide a fit animal and a safe track increased the risk to the plaintiff beyond that inherent in the activity and liability might attach for requiring the plaintiff to take on the increased risk. To look at the situation another way, requiring the defendant to provide a safe horse and track could have no chilling effect on the activity itself, nor would it interfere with the ability of the instructor to teach the student new or better skills.” (Bushnell, supra, at p. 533, italics added.)
The California Supreme Court first considered how Knight applied in a student-coach scenario in Kahn, supra, 31 Cal.4th 990.^[2] In that case, the plaintiff, a high school swimming student, broke her neck when she dove from a starting block into a shallow racing pool. She alleged her injury was caused by the defendant coach’s failure to instruct her on how to dive safely into the shallow pool and the coach’s insistence that she dive at a swim meet despite her objections, her lack of expertise, her fear of diving, and the coach’s promise to exempt her from diving. (Khan, supra, at p. 995.) The Kahn court summarized its analysis at the outset: “[W]e recognize that the relationship of a sports instructor or coach to a student or athlete is different from the relationship between coparticipants in a sport. But because a significant part of an instructor’s or coach’s role is to challenge or ‘push’ a student or athlete to advance in his or her skill level and to undertake more difficult tasks, and because the fulfillment of such a role could be improperly chilled by too stringent a standard of potential legal liability, we conclude that the same general standard should apply in cases in which an instructor’s alleged liability rests primarily on a claim that he or she challenged the player to perform beyond his or her capacity or failed to provide adequate instruction or supervision before directing or permitting a student to perform a particular maneuver that has resulted in injury to the student. A sports instructor may be found to have breached a duty of care to a student or athlete only if the instructor intentionally injures the student or engages in conduct that is reckless in the sense that it is ‘totally outside the range of the ordinary activity’ [citation] involved in teaching or coaching the sport.” (Id. at p. 996.)
Applying this standard to its facts, the Kahn court held that summary judgment was improper. “[T]he following factors indicated a triable issue with respect to whether the coach’s behavior was reckless: the lack of training in the shallow-water dive disclosed by plaintiff’s evidence, especially in the face of the sequenced training recommended in the Red Cross manual submitted by plaintiff; the coach’s awareness of plaintiff’s deep-seated fear of such diving; his conduct in lulling her into a false sense of security through a promise that she would not be required to dive, thereby eliminating any motivation on her part to learn to dive safely; his last-minute breach of that promise under the pressure of a competitive meet; and his threat to remove her from the team or at least the meet if she refused to dive.” (Kahn, supra, 31 Cal.4th at p. 1012.)
In the course of its analysis, the court discussed Bushnell, including its treatment of Tan and Galardi. (Kahn, supra, 31 Cal.4th at pp. 1006-1008.) Tan and Galardi, the Kahn court stated, “could be explained on the ground that the instructors’ conduct arguably was reckless, in the view of the Bushnell court, but were unsupportable to the extent they suggested that liability would follow when a coach or instructor merely urged the student to follow a desirable sequence of training and execute a maneuver that turned out to be beyond the student’s capacity.” (Kahn, supra, at pp. 1007-1008; see also Kane v. National Ski Patrol System, Inc. (2001) 88 Cal.App.4th 204, 212 [Tan and Galardi are consistent with Knight because “the instructors’ conduct was analogous to the example of the defective rope tow discussed in” Knight].)
Lastly, in Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746, the 17-year-old plaintiff, Jeffrey Wattenbarger, attended a supervised tryout for the Cincinnati Reds. “The last part of the tryout was conducted under conditions simulating an actual game. The pitchers, including plaintiff, each took a turn throwing to several batters. Before his turn, plaintiff threw a number of warmup pitches to get his arm ready. On his third pitch to a batter, plaintiff felt his arm ‘pop’ but experienced no particular pain. He stepped off the pitcher’s mound and informed the Reds’ personnel . . . that his arm had popped. Receiving no response, plaintiff returned to the mound and threw another pitch. He immediately experienced severe pain in his arm and quit pitching.” (Id. at p. 750, fn. omitted.) He suffered a tearing away of bone and tendon due to tricep contraction. (Id. at p. 753.) After explaining that an arm injury such as the one suffered by Wattenbarger is a risk inherent in pitching, the court concluded that the Cincinnati Reds owed a duty to Wattenbarger not to increase the risks inherent in the game of baseball. (Id. at p. 755.) The court likened this duty to a duty not to increase the risk of injury by supplying “faulty equipment such as batting helmets or catching gear.” (Ibid.) The court concluded: “[D]efendants owed a duty of care to protect participants from aggravating injuries during the tryout. This would include preexisting injuries known to defendants as well as those occurring during the tryout. Thus, primary assumption of risk is inapplicable. [¶] Because issues of fact exist as to whether defendants were aware of plaintiff’s injury, whether they encouraged or permitted him to throw a fourth pitch, and whether this final pitch caused injury, summary judgment was improperly granted.” (Id. at p. 756, fn. omitted.)
The following principles can be distilled from the above cases: To the extent a duty is alleged against a coach for “pushing” and/or “challenging” a student to improve and advance, the plaintiff must show that the coach intended to cause the student’s injury or engaged in reckless conduct—that is, conduct totally outside the range of the ordinary activity involved in teaching or coaching the sport. (Kahn, supra, 31 Cal.4th at p. 1011.) Furthermore, a coach has a duty of ordinary care not to increase the risk of injury to a student by encouraging or allowing the student to participate in the sport when he or she is physically unfit to participate or by allowing the student to use unsafe equipment or instruments. (Tan, supra, 13 Cal.App.4th at pp. 1535-1536; Wattenbarger v. Cincinnati Reds, Inc., supra, 28 Cal.App.4th at p. 755.)^[3]
These principles are in line with the underlying policy of not creating a “chilling effect on the activity itself, nor . . . interfer[ing] with the ability of the instructor to teach the student new or better skills.” (Bushnell, supra, 43 Cal.4th at p. 533.) In accordance with Knight and Kahn, we must be concerned with the possibility that subjecting an equestrian coach to liability will “alter the nature of an active sport or chill vigorous participation in the activity.” (Kahn, supra, 31 Cal.4th at p. 1011.) If, for example, a coach could be liable for encouraging a student to enter a two star equestrian event when the student was not ready for the challenge, the coach might be reluctant to push the student to that next level of skill. As we understand the Erikssons’ complaint, however, this is not the basis for their claim. Rather, they are asserting that Nunnink increased the risk inherent in the sport by sending Mia out to compete in a difficult cross-country course on a horse that was unfit, and that she concealed from or misrepresented the horse’s condition to Karan (whose permission Mia needed to compete). As such, the case is distinguishable from cases such as Bushnell and Kane, in which instructors were sued, and found not liable, for challenging their students to improve their skills. (See Bushnell, supra, 43 Cal.App.4th at p. 534; Kane v. National Ski Patrol System, Inc., supra, 88 Cal.App.4th at p. 214.) This case is more analogous to Tan, in which the riding coach knowingly assigned an injured horse to the plaintiff to ride on a rocky track. (Tan, supra, 13 Cal.App.4th at p. 1535.) There, the defendant had a duty “to see to it that the horse he assigned Tan to ride was safe to ride under the conditions he prescribed for that activity” (ibid.), and Wattenberger, where the plaintiff was allowed to throw a fourth pitch after injuring his arm. Whether this is characterized as “a duty of ordinary care,” as the Tan court described it, or as a duty not to increase “the risk to the plaintiff beyond that inherent in the activity,” as the Bushnell court interpreted Tan, the duty is the same: Nunnink had a duty not to unreasonably increase the risk inherent in the cross-country event by allowing Mia to ride a horse that was not fit. We see no undesirable chilling effect on the sport of eventing flowing from the imposition of such a duty.
In clarifying the duty Nunnink owed to Mia in light of the foregoing, we begin, as Knight and Kahn direct, by considering the nature of the activity that Mia was engaged in when she was injured. Here, Mia was competing in an equestrian cross-country event, which requires the horse and rider to jump over fences and other obstacles. The more difficult the jumps, the more challenging the course. There is no dispute in this case that inherent in this activity is the risk of falling off or being thrown by a horse during the competition, causing injury to the rider. These inherent risks highlight the importance of having a healthy and fit horse when engaging in the activity.
Regarding the relationship of the parties to the activity and defendant’s role in the activity, the parties dispute whether Nunnink is considered a “coach” or a “trainer.” Regardless of how she is characterized, there is substantial evidence that Nunnink’s role encompassed the authority and responsibility to determine whether Mia’s horse was fit for competition. According to Karan, Nunnink was “completely responsible for the horse” and was required “to make sure the horse was fit and ready to go” before an event. Karan further testified that following Ram Tap Nunnink told her that the horse was very lame and that it needed tack walking and that Nunnink was going to take the horse home with her. Additionally, there was evidence that Nunnink assured Karan that if Kory did not look good, she would “pull him” from the competition. Indeed, in the release Nunnink relies on, she reserved for herself the authority to refuse to permit Mia to use a horse that is “not in proper health or deemed dangerous or undesirable by [Nunnink]”. Lastly, Nunnink testified she would “have said something” if she felt that Mia’s horse should not be competing.
The conversations between Nunnink and Karan regarding Mia’s participation at Galway also reveal a relationship in which Karan relied on Nunnink’s expertise with respect to that decision and Nunnink asserted her authority to make the decision. For example, although Karan believed that Kory was “lame” after the Ram Tap fall and expressed her concerns to Nunnink about Kory’s condition, Nunnink repeatedly assured her that Kory was good to go; when Karan persisted, Nunnink finally told her: “I’m the coach, shut up. It’s fine. Get out of here.”
Clearly there is credible evidence that Nunnink had some responsibility for the fitness of the horse and had the ability to control whether the horse participated in the cross-country event.
Given this background, we now address whether Nunnink met her prima facie burden of production that she owed no duty to Mia based on primary assumption of the risk, and that she did not breach that duty.
C. Nunnink Failed to Meet Her Initial Burden of Production as It Relates to Duty and Breach of Duty
A trial court properly grants summary judgment when there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)
A moving party defendant is entitled to summary judgment if it establishes a complete defense to the plaintiff’s causes of action, or shows that one or more elements of each cause of action cannot be established. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849.) A moving party defendant bears the initial burden of production to make a prima facie showing that no triable issue of material fact exists. Once the initial burden of production is met, the burden shifts to the responding party plaintiff to demonstrate the existence of a triable issue of material fact. (Id. at pp. 850-851.) From commencement to conclusion, the moving party defendant bears the burden of persuasion that there is no triable issue of material fact and that the defendant is entitled to judgment as a matter of law. (Id. at p. 850.)
On appeal following the grant of summary judgment, we review the record de novo, considering all of the evidence except that to which objections were made and sustained. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) “We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Ibid.)



TO BE CONTINUED AS PART III….



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