Lavenda v. Rodowick

Filed 8/29/06 Lavenda v. Rodowick CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Plaintiff Deborah Lavenda sued defendant Scott Rodowick for negligence after she was injured during a horseback riding accident on Rodowick’s property. The trial court granted summary judgment in Rodowick’s favor, reasoning Lavenda assumed the risk of falling while horseback riding.

On appeal, Lavenda contends the trial court erred in granting summary judgment because there was a triable issue of fact as to whether Rodowick’s conduct was so reckless as to be totally outside the range of ordinary activity involved in the sport of horseback riding. Disagreeing with this contention, we will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On review of summary judgment in the defendant’s favor, we “view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing her evidentiary submission while strictly scrutinizing defendants’ own showing, and resolving any evidentiary doubts or ambiguities in plaintiff’s favor.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) Employing this standard, the following facts appear from the record:

On July 4, 2003, the neighborhood where Lavenda and Rodowick lived held its annual Fourth of July parade. In the parade, Rodowick rode his horse Daydreamer for about one hour. As had been his practice in the past, after the parade, Roderick offered free horse rides in his front yard to the neighborhood children. The children would sit on Daydreamer’s saddle, and Rodowick would lead the horse around the perimeter of his yard two or three times “depending on the enthusiasm of the child.” Lavenda saw the horse rides on this Fourth of July and those in the past and had not seen any children thrown off the horse.

Around 11:15 or 11:30 a.m., after most children had ridden Daydreamer, Lavenda approached Rodowick on the lawn of his front yard and asked if she could ride the horse. Rodowick asked Lavenda if she had any experience riding horses. Lavenda responded she had recently been horseback riding in Hawaii on a trail ride for one to one and one-half hours. Rodowick told her she could ride Daydreamer. They did not discuss how to start, stop, guide, or steer the horse. They also did not discuss any reservations Lavenda had about riding Daydreamer or the type of riding she wanted to do.

Lavenda put her foot into Daydreamer’s stirrup and mounted the horse. She put her hands on the horn of Daydreamer’s saddle. Rodowick walked Daydreamer around the perimeter of the lawn with the lead rope as he had done with the children. When they completed the loop, Rodowick turned the horse to face down the driveway and handed Lavenda the lead rope. Daydreamer started to walk beside Rodowick. Rodowick started to trot, and Daydreamer followed his lead and began to trot. Lavenda did not say anything. Rodowick stopped, and Daydreamer continued trotting down the driveway to the backyard. Lavenda lost sight of Rodowick and began pulling the reins to stop Daydreamer while saying “‘whoa.’” By this time, Daydreamer “had picked up speed,” and Lavenda thought Daydreamer “want[ed] to continue,” but a fence was blocking the way.

Lavenda pulled the reins again, and Daydreamer stopped. Lavenda “twisted to the right,” and Daydreamer turned to the right and then all the way around and walked back to the lawn where they had begun the ride.

Daydreamer stopped moving, and Lavenda remained seated on Daydreamer’s saddle. She held the reins and lead rope in her hands. Rodowick was next to them. Daydreamer started to move, and Rodowick commented Daydreamer wanted to run. Lavenda responded, “‘Yeah.’” She was not concerned or scared and did not say she wanted to get off the horse.

Rodowick took the lead rope from Lavenda and walked them to some trees and a fence. He turned Daydreamer toward the driveway. Rodowick walked across the lawn to the driveway and turned toward Lavenda and Daydreamer. Lavenda still had the horse’s reins in both hands. Rodowick then called to the horse. Daydreamer’s front hooves came off the ground, and he “reared up” and “bolted” toward Rodowick. The next thing Lavenda remembered was being told not to move. She was taken to Sutter Hospital’s trauma unit in an ambulance.

Lavenda sued Rodowick for personal injury on theories of negligence and premises liability.

Rodowick moved for summary judgment claiming he did not have a duty to protect Lavenda from injury because she had assumed the risk of harm by engaging in the sport of horseback riding.

Lavenda opposed the motion, arguing the assumption of risk doctrine did not apply because Rodowick increased the risk of harm by improperly caring for the horse, providing a faulty saddle and other equipment, and calling to the horse. In support of her position, Lavenda introduced into evidence the declaration of Walter de la Brosse, who had been qualified as an expert in horseback riding in other cases in Sacramento County. According to de la Brosse, Rodowick’s “clucking” at Daydreamer increased the chances Lavenda would be injured. In his opinion, “[h]orses are conditioned that upon hearing the clucking, they are to go forward, and given the direction the horse was facing, towards its’ [sic] barn mate, the horse was much more prone to act quicker and faster. Likewise, having been ridden for so long that day without water[^[1]] increased the horse’s motivation to return to the stable that much faster.” De la Brosse also believed that “someone other than the rider engaging the horse by ‘clucking’ without warning” was “totally outside the range of ordinary activity with regards to horseback riding” and increased the risk of harm to Lavenda.

The court granted Rodowick’s motion for summary judgment reasoning that Rodowick’s calling to Daydreamer was not so reckless as to be outside the range of ordinary activity involved in the sport of horseback riding.

The court entered judgment in favor of Rodowick, and Lavenda filed a timely notice of appeal.

DISCUSSION

I

Standard Of Review

Summary judgment is proper where there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the trial court’s grant of summary judgment de novo and decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348; Code Civ. Proc., § 437c, subd. (c).)

II

The Primary Assumption Of Risk Doctrine

Bars Lavenda’s Claims

“Under general principles of negligence law, people have a duty to use ‘ordinary care’ to avoid injury to others and may be held liable for negligent conduct that causes injury. [Citation.] A limitation to this general rule is the doctrine of ‘primary assumption of risk’ that recognizes ‘in certain situations the nature of the activity at issue is such that the defendant does not owe a legal duty to the plaintiff to act with due care.’ [Citation.]” (Mammoth Mountain Ski Area v. Graham (2006) 135 Cal.App.4th 1367, 1371.)

In deciding whether the primary assumption of risk doctrine applies to a sports participant, we must determine whether the injury incurred arises from an inherent risk in the activity, and whether imposing a duty might chill vigorous participation in the implicated activity and thereby alter its fundamental nature. (Knight v. Jewett (1992) 3 Cal.4th 296, 316-319 (Knight).) The doctrine presents an issue of legal duty, and therefore a court and not a jury determines its applicability. (Id. at p. 313.) The doctrine is unaffected by the plaintiff’s subjective appreciation of the risk and, if applicable, completely bars recovery. (Id. at pp. 314-315.)

In Knight, our Supreme Court affirmed summary judgment in favor of the defendant where he stepped on and injured the plaintiff’s hand and finger while the two were playing touch football. (Knight, supra, 3 Cal.4th at pp. 300, 321.) The court reasoned the defendant’s conduct was “at most, careless or negligent,” but not “so reckless as to be totally outside the range of the ordinary activity involved in the sport,” despite the plaintiff’s characterization of the defendant’s conduct as “‘reckless.’” (Id. at pp. 320-321.)

Turning to the parties’ contentions here, Rodowick argues the doctrine of primary assumption of risk applies because a horse’s sudden movements are inherent in the sport of horseback riding. In support of his position, Rodowick cites Harrold v. Rolling J Ranch (1993) 19 Cal.App.4th 578. There, the plaintiff was riding a horse at the Rolling J Ranch when she decided to remove her jacket. (Id. at p. 582.) While both her arms were still in the sleeves and caught behind her, the horse “spooked” and bucked. (Ibid.) The plaintiff was thrown to the ground and landed on her tailbone. (Ibid.) She sued the defendants, alleging they negligently failed to warn her of the horse’s unstable temperament, negligently maintained their premises, and willfully failed to warn of the property’s dangerous condition. (Ibid.) The trial court granted summary judgment in favor of the defendants. (Id. at p. 583.) The appellate court affirmed, holding that a riding stable does not owe a duty of care to prevent a rider who rented a horse from being thrown to the ground by that horse when it spooked, so long as the horse was not known to be dangerous. (Id. at pp. 587-588.) The court viewed sudden movements of a horse, such as bucking, rearing, biting, stumbling or spooking, as inherent in the activity of horseback riding. (Id. at p. 588.)

The observation in Harrold that sudden movement of horses is one of the hazards inherent in horseback riding does not compel the conclusion, as a matter of law, that the doctrine of assumption of risk precludes Rodowick’s liability. Rather, to determine whether the doctrine applies we must ask whether Rodowick’s conduct was “so reckless as to be totally outside the range of the ordinary activity involved in the sport.” (Knight, supra, 3 Cal.4th at pp. 320-321.) Based on our review of the record, we hold as a matter of law it was not.

Here, when Rodowick asked Lavenda whether she had any riding experience, she told him she had recently been horseback riding on a trail in Hawaii for one to one and one-half hours. She then ably mounted Daydreamer, placing her foot into the stirrup and her hands on the horn of the saddle. Only after Daydreamer and Lavenda had successfully completed one loop around the lawn’s perimeter under Rodowick's supervision did Rodowick hand the lead rope to Lavenda and start trotting. When Daydreamer followed Rodowick’s lead and began trotting, Lavenda did not protest. When Rodowick stopped, Daydreamer continued trotting down the driveway to the backyard fence. Lavenda controlled Daydreamer by pulling on the reins to stop him and motioning to the right with her body. Daydreamer followed Lavenda’s lead and turned to the right and then all the way around, taking Lavenda back to the front lawn where they had begun the ride. When Daydreamer started to move again and Rodowick commented Daydreamer wanted to run, Lavenda responded, “‘Yeah.’” She did not tell Rodowick she wanted to get off the horse. Rodowick then set up the horse to run toward him and, with Lavenda holding Daydreamer’s reins in both hands, called to the horse.

As the foregoing facts demonstrate, before Rodowick called the horse to run toward him, Rodowick knew Lavenda had at least some experience riding horses, she had skillfully controlled Daydreamer, and she had acknowledged Daydreamer wanted to run. Given these facts, Rodowick’s action in calling the horse was not reckless as a matter of law.

Moreover, as our Supreme Court has cautioned, courts should not find a duty, and thus impose liability, for energetic conduct typical to the athletic activity because that would “chill vigorous participation in the sport.” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1004, citing Knight, supra, 3 Cal.4th at p. 318.) Imposing liability for Rodowick’s conduct under the circumstances here would run afoul of our Supreme Court’s teaching. Lavenda was not a child without riding experience simply standing in line for a horse ride. Rather, she was an adult who had ridden a horse recently, willingly rode Daydreamer after finishing the guided trip around the perimeter of lawn, and proficiently handled Daydreamer while he was trotting. Rodowick’s action setting up Daydreamer to run toward him and calling the horse, after Rodowick and Lavenda acknowledged the horse wanted to run, was an attempt to make the sporting activity exciting for a rider who had demonstrated skill in handling the horse. Saddling Rodowick with liability in these circumstances would chill vigorous participation in the sport of horseback riding, changing the fundamental nature of the sport.

Lavenda, however, makes much of her expert’s opinion that “someone other than the rider engaging the horse by ‘clucking’ without warning” was “totally outside the range of ordinary activity with regards to horseback riding” and increased the risk of harm to Lavenda.^[2] From the expert’s opinion, Lavenda posits that “[p]articipation in horseback riding does not carry with it the inherent risk of someone’s horse being unexpectedly goaded or called by its owner.”

Rodowick, however, did not “unexpectedly” goad or call the horse. Rodowick confirmed with Lavenda that Daydreamer wanted to run, and she did not say she wanted to get off the horse. He then set up Daydreamer to run and called to the horse while Lavenda had the reins in both hands. Moreover, this was not a situation in which Lavenda was in sole control of Daydreamer. Instead, from the beginning, Rodowick and Lavenda alternated control of Daydreamer during their participation in the sport. Finally, as another appellate court has observed: “It will always be possible for a plaintiff who suffers a sports injury to obtain expert testimony that the injury would not have occurred if the [defendant] had done something differently. Such expert testimony is not sufficient to establish that the [defendant] increased the inherent risks of the sport. Such expert opinion does not create a triable issue of fact on a motion for summary judgment based on the primary assumption of the risk defense.” (American Golf Corp. v. Superior Court (2000) 79 Cal.App.4th 30, 39.)

For these reasons, we conclude as a matter of law, Rodowick’s conduct was not so reckless as to be totally outside the range of ordinary activity involved in the sport of horseback riding. Accordingly, Lavenda’s claims against Rodowick are barred by the primary assumption of risk doctrine.

DISPOSITION

The judgment is affirmed. Rodowick shall recover his costs on appeal. (Cal. Rules of Court, rule 27(a)(1).)

ROBIE , J.

We concur:

HULL , Acting P.J.

CANTIL-SAKAUYE , J.

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^[1] At his deposition, Rodowick testified Daydreamer had not been given water from 8:45 a.m. to 11:30 a.m. on the day of the parade.

^[2] In his respondent’s brief, Rodowick argues the expert’s opinion was not admissible because it is not within the expert’s province to determine whether the activity is an active sport, the nature of the inherent risks of that sport, or whether a defendant acted recklessly. In her reply brief, Lavenda contends Rodowick “waived” these evidentiary objections by failing to secure a trial court ruling. While Rodowick has forfeited any objection to the admissibility of the expert’s opinion by failing to secure a ruling, we are still free to reach a different conclusion than the expert.