COHEN V. FIVE BROOKS STABLE

Filed 2/14/08

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Appellant Susan Cohen sustained injury as a result of a fall from a horse during a guided trail ride provided her by respondent Five Brooks Stable. Two questions are presented: whether by signing a Visitors Acknowledgement of Risk(the Release) appellant expressly waived her negligence claim and, if not, whether respondent is nevertheless exonerated by the doctrine of primary assumption of risk. Granting summary judgment on the ground that the Release constituted an express waiver, the trial court found it unnecessary to inquire into the applicability of the doctrine of primary assumption of risk.

We shall conclude, first, that the Release does not clearly and unambiguously inform an ordinary person untrained in the law that its purpose and effect is to exempt respondent from liability for its own negligence. We shall also conclude that summary judgment is not supported by the doctrine of primary assumption of risk. Accordingly, we shall reverse the judgment.

FACTS AND PROCEEDINGS BELOW

In August 2004, appellant, her friend Kathy Lord, and two others went on a horseback ride on the Olema Trail in the Golden Gate National Recreational Area in Marin County (GGNRA) on horses rented from respondent. Mark Wimple, an employee of respondent, was their guide. During the course of the trip, appellant fell from her horse and was injured. The gist of the complaint is that Wimple, knowing the horses behind him would follow and adjust to the gait of his horse, suddenly caused his horse to gallop without warning the other riders, thereby causing appellants horse also to gallop. Unable to control her bolting horse, appellant fell from the saddle and, with one foot caught in the stirrup, was dragged across the ground, sustaining injuries.

On October 5, 2005, appellant filed a complaint alleging a single count of negligence. On November 4, 2005, respondent answered with a general denial and raised 17 affirmative defenses. Seven months later, on June 5, 2006, respondent filed a motion for summary judgment based on two of those defenses: express and implied assumption of risk. The defense of express assumption of the risk was based on the Release appellant signed on the date of the incident.

Although the summary judgment motion was based primarily on express waiver based on the Release, respondent alternatively relied on the claim that it had no duty of care to appellant under the doctrine of primary assumption of risk because a fall from a horse on a trail ride is a risk inherent in the sport. Acknowledging that an operator of a recreational sports facility does not have a duty to protect against risks inherent in the sport, appellant rests on the rule that such an operator does have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport. (Knight v. Jewett (1992) 3 Cal.4th 296, 315-316 (Knight).) The theory of her complaint is that Wimples conduct substantially increased the risk inherent in the trail riding of horses. In support of her argument that there were disputed issues of material fact with respect to that issue, appellant emphasized portions of her deposition testimony and that of Lord and Wimple demonstrating a conflict in the evidence as to whether Mark Wimples conduct conformed to the standard of care he himself deemed applicable.

Wimple testified at deposition that the only gaits permitted on the Olema Valley trails were walking, trotting and cantering, but not galloping; he was instructed by his employer, and it was his custom, to obtain from each person in a group his or her consent to increase the gait from a walk to a trot, or from a trot to a canter; in obtaining such consent he normally turned around on his horse (which was always the lead horse) to face the members in the group; there were no circumstances where you could run horses at a trot or a canter, without getting the consent of the people in your party. Wimple said that after obtaining consent from members of a group to trot or canter, he would announce to all of them that he was going to increase the gait of his lead horse before actually doing so; as, for example, by asking, [y]ou guys want to canter? When asked whether he did so before he cantered or galloped his horse on the way back to the stable and appellant was thrown from her horse, Wimple answered: I believe that I did. But I cannot say for sure.

Wimples recollection that he obtained appellants consent and that of all other members of the group before allowing them to canter on the way back to the stable, and his implication that at the time he did so he turned around to look at them, is flatly contradicted by the testimony of appellant and Lord.

Appellant testified that after the group had made a U-turn and was on its way back to the stable, she was behind Lord who was right behind Wimple, who was on the lead horse. At some point, Lords horse suddenly leapt into a gallop, and appellants horse and those of the two other riders all immediately followed suit. Appellant did not at the time know why Lords horse bolted, but Lord later explained it was because Wimple suddenly urged his horse into a gallop. Appellant testified that at the time Lords horse accelerated and a split second later, when her own horse started galloping, appellant was unable to see Wimple, who was ahead around a bend in the trail. At no time during the return to the stable did appellant ever see Wimple turn around in his saddle or hear him tell anybody that he was proceeding in a faster pace than a walk. After losing control of her horse, appellant lost her balance and fell off to the ground on the right side. Because her right foot was caught in the stirrup, she was for a period of time dragged along the ground on her buttocks and back and injured.

Lord testified that at the time of the incident she was a horse length behind Wimple and appellant was some distance behind her. Wimples horse was never out of his control. Without advance warning to the riders behind him, Wimple intentionally took off. According to Lord, Wimples horse, which looked like it was galloping to me, ran so far ahead of the others that Wimple didnt know what his riders were doing behind him. And I had to yell at him to say: Stop. Something has happened. And then he comes back to us. When he finally gets back, he was more concerned about getting the horses so he didnt have to walk out, which we ended up doing anyway because [appellant] could not get on the horse. According to Lord, an experienced rider, horses are herd animals and instinctively follow the gait of the trail guides lead horse. In her view a responsible trail guide would not, on the way back to the stable, have gone faster than a walk, and certainly not accelerated from a walk to a canter or gallop suddenly and without notice, as Wimple did. When Wimples horse began galloping, Lords horse went crazy and was briefly out of control. This also happened to Justin, one of the others in the group, who was riding behind appellant. He was fearful his galloping horse would trample appellant while she was being dragged along the ground with her foot caught in the stirrup. Justin fell off his horse while trying to guide it away from appellant.

The trial court never addressed the conflict in the evidence relating to Wimples conduct, nor appellants claim that this conduct negligently increased a risk inherent in horseback riding, focusing instead on the Release. The order granting summary judgment states that the Release was  clear, unambiguous, and explicit, and . . . express[es] an agreement not to hold [respondent] liable for negligence [citation] and that the conduct of Wimple was within the scope of the Release. The court noted that the Release states a specifically identified risk of horseback riding, that a horse may and will run without warning and without apparent cause, and that this risk can arise from movement of people [or] other horses. Moreover, the Release also applies to other unknown or unanticipated risks that are not specifically identified therein. For these reasons, the court determined that, even if Wimples conduct was negligent and increased the risk inherent in horseback riding, [appellant] assumed the risk of the injuries that occurred.

STANDARD OF REVIEW

Appellate review of a summary judgment is limited to the facts shown in the supporting and opposing affidavits and those admitted and uncontested in the pleadings. As in the trial court, the moving partys papers are strictly construed and the opposing partys are liberally construed. All doubts as to the propriety of granting the motioni.e., whether there is any triable issue of material factare to be resolved in favor of the party opposing the motion. (Saelzer v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769.) While appellate review operates under the same general principles applicable in the trial court, the appellate court must independently determine the construction and effect of the facts presented to the trial judge as a matter of law. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142; Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1515.)  As a corollary of the de novo review standard, the appellate court may affirm a summary judgment on any correct legal theory, as long as the parties had an adequate opportunity to address the theory in the trial court. [Citation.] (California School of Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 22, citing Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 1989)  8:168.5a, pp. 8-98.3 to 8-98.4 (rev. # 1, 2001).)

As will be seen, the trial courts ruling was based on its interpretation of the Release appellant signed as negating the duty element of her negligence claim. Contract principles apply when interpreting a release, and normally the meaning of contract language, including a release, is a legal question. (Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 360.) Where, as here, no conflicting parol evidence is introduced concerning the interpretation of the document, construction of the instrument is a question of law, and the appellate court will independently construe the writing.  (Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 754.) It therefore follows that we must independently determine whether the release in this case negated the duty element of plaintiff[s] cause[] of action. (Allabach v. Santa Clara County Fair Assn. [(1996)] 46 Cal.App.4th [1007,] 1011.) (Benedek v. PLC Santa Monica(2002) 104 Cal.App.4th 1351, 1356 (Benedek).)

DISCUSSION

As indicated, the grant of summary judgment was based solely on the trial courts determination that respondents alleged negligence was within the express scope of the Release she signed. Defending that analysis, respondent maintains the ruling can also be sustained under the doctrine of primary assumption of risk. We shall address these issues separately; however, because there is some interplay between them, it is useful at the outset to emphasize their difference.

With respect to the question of express waiver, the legal issue is not whether the particular risk of injury appellant suffered is inherent in the recreational activity to which the Release applies (Benedek, supra, 104 Cal.App.4th at p. 1357; Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1372-1375; Madison v. Superior Court (1988) 203 Cal.App.3d 589, 602, fn. 11), but simply the scope of the Release. The language of the Release is not pertinent to the applicability of the doctrine of primary assumption of risk. With respect to that issue, the central question is whether the conduct of Wimple complained of was itself an inherent risk of recreational trail riding or whether Wimple did anything to increase that risk.

I.

Risk of the Injury Appellant Suffered is

Not Within the Scope of the Release

The order granting summary judgment concludes that [t]he alleged conduct of the trail guide is within the scope of the Release, because (1) the Release states a specifically identified risk of horseback riding, that a horse may and will run without warning and without apparent cause,  and, in any case, (2) the Release also applies to other unknown or unanticipated risks that are not specifically identified therein.

The difficulty in deciphering the order relates to whether the court found that the risks referred to in the Releaseparticularly those not specifically identified thereinare limited to risks inherent in horseback riding or whether they also encompass the risk of harm from misconduct of respondent or its employees that increase a risk inherent in horseback riding. As we shall see, the court could have concluded that the Release pertains to the latter risk only if the Release unambiguously exempted respondent from liability for its own negligence or for any and all risks appellant encountered while using respondents facilities.

A written release may exculpate a tortfeasor from future negligence or misconduct. [Citation.] To be effective, such a release must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties. [Citation.] The release need not achieve perfection. [Citation.] Exculpatory agreements in the recreational sports context do not implicate the public interest and therefore are not void as against public policy. [Citations.] [] The determination of whether a release contains ambiguities is a matter of contractual construction. [Citation.] An ambiguity exists when a party can identify an alternative, semantically reasonable, candidate of meaning of a writing. [Citations.] An ambiguity can be patent, arising from the face of the writing, or latent, based on extrinsic evidence. [Citation.] . . . . If an ambiguity as to the scope of the release exists, it should normally be construed against the drafter. [Citations.] (Benedek, supra, 104 Cal.App.4th at pp. 1356-1357, italics added, fn. omitted.)

The scope of a release is determined by its express language. The express terms of the release must be applicable to the particular negligence of the defendant, but every possible specific act of negligence of the defendant need not be spelled out in the agreement. [Citation.] When a release expressly releases the defendant from any liability, it is not necessary that the plaintiff have had a specific knowledge of the particular risk that ultimately caused the injury. [Citation.] If a release of all liability is given, the release applies to any negligence of the defendant.  It is only necessary that the act of negligence, which results in injury to the releaser, be reasonably related to the object or purpose for which the release is given.  [Citation.] (Benedek, supra, 104 Cal.App.4th at p. 1357.) As we have said, [t]he issue is not whether the particular risk of injury is inherent in the recreational activity to which the release applies, but rather the scope of the release. (Ibid.)

The exculpating provision of the Release that the trial court found clear, unambiguous, and explicit is the language declaring that [a]ll horses, even those that are well trained and appear calm and docile, may and will: [among other things] run and bolt uncontrollably. . . . without warning and without apparent cause; and that this may be in response to external stimuli . . . which may induce feelings of fear, panic or anger, leading to some degree of reflex action on the part of the horse. We fully agree, and indeed it is indisputable, that the risks to which the Release applies are those inherent in horseback riding. As the Release states, [c]ertain risks cannot be eliminated [from horseback riding] without destroying the unique character of this activity. The same elements that contribute to the unique character of this activity can be causes of loss or damage to your equipment, or accidental injury, illness, or in extreme cases, permanent trauma or death. We do not want to frighten you or reduce your enthusiasm for this activity, but we do think that it is important for you to know, in advance, what to expect, and to be informed of the inherent risks. The following describes some, but not all, of these risks. (Italics added.) The description in the Release of some, but not all, of the inherent risks, includes the risk that [a]ll horses, even those that are well trained and appear calm and docile, may and will: buck, rear, kick, bite, run and bolt uncontrollably, and this risk may occur without warning and without apparent cause. . . . in response to external stimuli (such as . . . movement of people [and] other horses . . .) . . . . By signing the Release, appellant expressly agreed to assume responsibility for the risks identified herein and those risks not specifically identified. (Italics added.)

Clearly, all of the risks explicitly described in the Releasewhich arise from the stated fact that even well trained horses may and will: buck, run, kick, bite, run and bolt uncontrollably. . . . without warning and without apparent causeare inherent in horseback riding. As noted, the paragraph in which these risks are described follows directly after the statement that, in order to inform the signer of the Release of the inherent risks[,] [t]he following describes some, but not all, of these risks (italics added), i.e., some, but not all of the risks inherent in horseback riding. Whether those risks not specifically identified are also limited to risks inherent in horseback riding is, however, unclear. The problematic language consists of the following two sentences: I understand that the [previous] description of these [i.e., inherent] risks is not complete and that other unknown or unanticipated risks may result in injury or death. I agree to assume responsibility for the risks identified herein and those risks not specifically identified. (Italics added.) The risks not specifically identified could refer to the risks inherent in horseback riding left unidentified by the phrase some, but not all, which seems to us the most reasonable assumption, but it might also refer to risks arising out of respondents negligence that increases the inherent risks. Because an interpretation of the reference in the Release to those risks not specifically identified as pertaining only to unspecified risks inherent in horseback riding is semantically reasonable (Benedek, supra, 104 Cal.App.4th at p. 1357), the Release is ambiguous, and the ambiguity must be resolved against respondent, the drafter of the instrument. (Ibid., citing Civ. Code  1654; Solis v. Kirkwood Resort Co., supra, 94 Cal.App.4th at p. 360.)

It is clear, however, that the trial court found the scope of the Release unambiguous. Aware, as it must have been, that the complaint alleged that respondent violated its duty to use care not to increase any of the risks inherent in horseback riding,^[1]the trial court apparently granted summary judgment on the theory that the risks not specifically identified in the Release include the risk that misconduct of respondent or its employee might increase a risk inherent in horseback riding. Knowing an agreement not to hold a defendant liable for its future negligence must express such intent clearly, unambiguously, and explicitly, the court found that it did. Emphasizing that the Release also applies to other unknown or unanticipated risks that are not specifically identified therein, the courts order states that the Release was sufficiently  clear, unambiguous, and explicit, and . . . express[es] an agreement not to hold [defendant] liable for negligence.  The finding that appellant released respondent from liability for negligently increasing a risk inherent in horseback riding, as the complaint alleges, explains why the court found it unnecessary to inquire whether there were disputed issues of fact relevant to that factual question.

We find the trial courts interpretation of the Release erroneous. The court not only improperly resolved the ambiguity in favor of the drafter, but ignored the principle that a Release relieves a defendant of the consequences of its own negligence only if it does so in clear, unambiguous, and explicit language.^[2](Benedek, supra, 104 Cal.App.4th at p. 1356; Leon v. Family Fitness Center (#107), Inc. (1998) 61 Cal.App.4th 1227, 1235; Bennett v. United States Cycling Federation (1987) 193 Cal.App.3d 1485, 1490; see also Sweat v. Big Time Auto Racing, Inc. (2004) 117 Cal.App.4th 1301.) The Release before us does not do so.

The Restatement Second of Torts aptly states: In order for the agreement to assume the risk to be effective, it must also appear that its terms were intended by both parties to apply to the particular conduct of the defendant which has caused the harm. Again, where the agreement is drawn by the defendant and the plaintiff passively accepts it, its terms will ordinarily be construed strictly against the defendant. (Rest.2d Torts,  496B, com. d, p. 566.) Along the same lines, Professors Prosser and Keeton observe: If an express agreement exempting the defendant from liability for his negligence is to be sustained, it must appear that its terms were brought home to the plaintiff; and if he did not know of the provision in his contract, and a reasonable person in his position would not have known it, it is not binding upon him, and the agreement fails for want of mutual assent. It is also necessary that the expressed terms of the agreement be applicable to the particular misconduct of the defendant, and the courts have strictly construed the terms of exculpatory clauses against the defendant who is usually the draftsman. (Prosser & Keeton on Torts (5th ed. 1984) Assumption of Risk, ch. 11,  68, pp. 483-484, [first] italics added [by Bennett court], fns. omitted) (Bennett v. United States Cycling Federation, supra, 193 Cal.App.3d at p. 1490, second italics added by this court.) The Release presented to appellant clearly does not unambiguously, let alone explicitly, release respondent from liability for injuries caused by its negligence or that of its agents and employees which increase a risk inherent in horseback riding.

California courts require a high degree of clarity and specificity in a Release in order to find that it relieves a party from liability for its own negligence. The release must clearly, explicitly and comprehensibly set forth to an ordinary person untrained in the law that the intent and effect of the document is to release his claims for his own personal injuries and to indemnify the defendants from and against liability to others which might occur in the future as a proximate result of the negligence of [the] defendants . . . . (Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147 Cal.App.3d 309, 319; Scroggs v. Coast Community College Dist. (1987) 193 Cal.App.3d 1399, 1404 [The presence of a clear and unequivocal waiver with specific reference to a defendantsnegligence is a distinct requirement where the defendant seeks to use the agreement to escape responsibility for the consequences ofhis negligence].) This does not mean use of the word negligence or any particular verbiage is essential (see Sanchez v. Ballys Total Fitness Corp. (1998) 68 Cal.App.4th 62, 66-67), but that the release must inform the releasor that it applies to misconduct on the part of the releasee. The Release before us clearly does not. The word negligence is used but once, and in a way that refers only to appellants negligence, not that of respondent. After a sentence in which appellant certifies that I am fully capable of participating in this activity, the Release states: Therefore, I assume full responsibility for myself, including my minor children, for bodily injury, death and loss of personal property and expenses thereof as a result of those inherent risks and dangers and of my negligence in participating in this activity. (Italics added.) Nothing in the Release clearly, unambiguously, and explicitly indicates that it applies to risks and dangers attributable to respondents negligence or that of an employee that may not be inherent in supervised recreational trail riding. Nor does the Release indicate that it covers any and all injuries arising out of or connected with the use of respondents facilities. (Compare Sanchez v. Ballys Total Fitness Corp., at p. 65.)

The trial courts order, which was prepared by counsel for respondent, cites National & Internat. Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215 Cal.App.3d 934 and Benedek, supra, 104 Cal.App.4th 1351, as support for its conclusion that the [t]he alleged conduct of the trail guide is within the scope of the Release. The cited cases provide no support for this statement because both pertain to a comprehensive and unqualified release written in clear and unambiguous language absent in the subject Release.

In National & Internat. Brotherhood of Street Racers, Inc., supra, 215 Cal.App.3d 934, the plaintiff (an experienced race car driver who, after putting his car in reverse, accelerated at full throttle) signed an agreement releasing the defendant and others  from any and all claims and liability arising out of . . . ordinary negligence of releasees or any other participant which causes the undersigned injury, death, damages or property damage.  (Id. at p. 936, italics added.) The court found the plaintiff driver misread the release, which in unqualified terms releases all claims arising from [his] participation in the race. (Id. at p. 937, italics added.) The plaintiff in Benedek, supra, 104 Cal.App.4th 1351, was a member of a health club injured on the clubs premises when he attempted to reposition a television and it slid off its rack, injuring him. The release found by the court to be clear, unambiguous, and explicit released the defendant from liability for any personal injuries suffered while on [the defendants] premises, whether using exercise equipment or not.  (Id. at p. 1358, italics added.) Because [t]he purpose for which the release was given was to allow [the plaintiff] access to [the defendants] facilities and services,  it was therefore enough to bar the plaintiffs action that he was injured while inside [the defendants] facilities. (Ibid.) Given its unambiguous broad language, the release reached all personal injuries suffered by [the plaintiff] on [the defendants] premises (ibid), regardless whether they occurred while he was actively using its exercise equipment.

Unlike the release in National & Internat. Brotherhood of Street Racers, Inc., supra, 215 Cal.App.3d 934, the Release here does not relieve respondent of liability from any and all claims and liability arising out of [its] ordinary negligence which causes injury to the releasor (id. at p. 936); and unlike the release in Benedek, supra, 104 Cal.App.4th 1351, the Release here does not exempt respondent from liability for any personal injury suffered while on [respondents] premises (id. at p. 1358).

Indeed, the language of the Release appellant signed hardly relates at all to respondents conduct,^[3]let alone the particular conduct alleged to have caused the harm appellant suffered. A fair reading of the entire Release compels the conclusion that it does not make clear to an ordinary person untrained in the law that its purpose and effect is to release claims for ones own personal injuries resulting from respondents negligent acts, including misconduct that increases a risk inherent in horseback riding. On the contrary, a person who understandingly signed the Release cannot be deemed to have waived any hazard other than those inherent in the trail riding of horses. Stated differently, the Release does no more than subject appellant to a legal principlethe doctrine of primary assumption of riskthat would apply even if the Release did not exist.

It has been said that [d]rafters of releases always face the problem of steering between the Scylla of simplicity and the Charybdis of completeness (National & Internat. Brotherhood of Street Racers, Inc., supra, 215 Cal.App.3d at p. 937), and that only on Draftsmans Olympus is it feasible to combine the elegance of a trust indenture with the brevity of a stop sign (id. at p. 938). While it is true, as we have seen, that California courts hold releases of liability to a high standard of clarity, it does not in our view require Olympian efforts to meet the standard. An effective release is hard to draft only if the party for whom it is prepared desires to hide the ball, which is what the law is designed to prevent. The elegance of trust indentures, which are notoriously incomprehensible to all but trained specialists, is hardly useful, and brevity is feasible.^[4] A release that forthrightly makes clear to a person untrained in the law that the releasor gives up any claim against the releasee for the latters own negligence (see, e.g., Madison v. Superior Court, supra, 203 Cal.App.3d 589, 594) or that the releasee cannot be held liable for any and all risks the releasor encounters while on the formers premises or using its facilities (see, e.g., Benedek, supra, 104 Cal.App.4th at p. 1358; Sanchez v. Ballys Total Fitness Corp., supra, 68 Cal.App.4th at pp. 64-65), ordinarily passes muster. Because the Release before us conveys neither of those ideas, we conclude that it does not exculpate respondent from its own negligence or that of an employee or agent.

The remaining question is whether the injury appellant sustained arose from a risk inherent in the activity in which she was engaged and respondent is therefore exonerated by the doctrine of primary assumption of risk.

II.

Whether Respondents Liability is Limited by

the Doctrine of Primary Assumption of Risk

Turns on Triable Issues of Material Fact

Respondent argues that, though the trial court did not explicitly rely on the principle of primary assumption of risk (because its order does not determine whether, as alleged in the complaint, Wimples conduct increased a risk inherent in horseback riding), its ruling can nevertheless be sustained on that ground.

Knight, supra, 3 Cal.4th 296, recognizes that careless conduct by coparticipants is an inherent risk in many sports, and that holding participants liable for resulting injuries would discourage vigorous competition. For that reason, persons involved in a sporting activity do not have a duty to reduce the risk of harm inherent in the sport itself. However, Knight and its progeny (see, e.g., Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 162) also explain that such persons do have a duty not to increase such inherent risks. Thus, sports participants have a limited duty of care that is breached only if they intentionally injure coparticipants or engage[] in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport. (Knight, at p. 320, fn. omitted.)

Harrold v. Rolling J Ranch (1993) 19  Cal.App.4th 578 (Harrold), holds that horseback riding, even the rather tame sport of riding on the back of walking horses in an afternoon trail ride, carries some inherent risk of injury. A horse can stumble or rear or suddenly break into a gallop, any of which may throw the rider. (Id. at p. 587.) This does not mean a commercial operator of a horse-riding facility owes no duty of care and can never be liable for injuries suffered when a horse acts in a dangerous manner. Such an operator has a duty to supply horses which are not unduly dangerous. . . . [and a] duty to warn the patrons renting a horse if that horse has evidenced a predisposition to behave in ways which add to the ordinary risk of horse riding. (Ibid.) The operator also has a duty not to provide faulty saddles, bridles and other equipment, not to provide dangerous trails, not to provide horses that are shodded poorlyand the list can go on and on. (Id. at p. 588.) However, the majority in Harrold held courts may not impose a duty on stable owners to provide ideal riding horses such that they never buck, bite, break into a trot, stumble or spook when confronted by a frightening event on the trail such as a shadow or snake or react to peculiar movements of a rider such as excessive spurring or waving of a coat as in this case. We view sudden movements of a horse just as inherent in horseback riding as the presence of moguls on a ski slope are to skiers. (Ibid.)

The Harrold court concluded that the defendant stable operator had no duty to warn the plaintiff that a horse she selected on her own had recently spooked and thrown a rider. However, respondent ignores the rationale of that ruling. Harrold states that [p]ublic policy supports not imposing a duty on commercial operators of horse-renting facilities which provide supervised trail rides, to supply ideal horses, but we stop short of eliminating any duty such as a duty to warn of a dangerous propensity in a given horse. (Id. at p. 588.) The only reason the Harrold majority found no duty to warn in that case was that the one prior incident of the subject horse having spooked does not rise to the level of a dangerous propensity, in our opinion. It does rise to the level of a horse behaving as a horse with no incumbent duty on the part of the stable operator. In our opinion, to impose some sort of duty on a lessor of horses when a horse acts as a horse is to tell the commercial world that strict liability is imposed for any action of a horse inherent in horseback riding, with the concomitant result that in all probability all commercial horseback riding will cease because of the risk involved to those that are self-insured or by reason of the prohibitive expense to obtain liability insurance for such an enterprise. (Ibid.)

The rationale of the refusal to find a duty in Harrold has no application to this case. Appellant does not complain about the conduct of the horse assigned her, but about that of the trail guide she was provided. A spooked horse that throws a rider may be a horse acting as a horse, but a trail guide who unexpectedly provokes a horse to bolt and run without warning its rider is not in our opinion a trail guide acting as a trail guide. This is particularly true here. Wimple testified that many of the riders he supervised are riding for the first time or havent ridden for a while, and the Release presented all prospective riders informed them that respondent has taken reasonable steps to provide you with . . . skilled guides so that you can enjoy an activity for which you may not be skilled. (Italics added.) Respondent does not explain, and we do not know, why imposition on trail guides of a duty not to endanger a rider by, without warning, inciting his or her horse to bolt and gallop would diminish participation in commercial horseback riding or create any significant risks for the operators of commercial horseback riding facilities. The case law provides no rationale upon which to conclude that the risk of such conduct by a trail guide is inherent in the recreational trail riding of horses.

The parties both rely upon Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990 (Kahn), but for different reasons. In that case, a member of a school swim team broke her neck during a swim meet when she made a practice dive into a shallow pool on school property. In a suit against the school she alleged that her injury was caused in part by the failure of her coach, a school employee, to instruct her how to safely dive into a shallow pool. She also sued the coach for failing to adequately supervise her and threatening to dismiss her from the team if she did not dive. The Supreme Court applied the doctrine of primary assumption of risk to sustain the grant of summary judgment for the coach insofar as it was based on the relationship between a coach and an athlete. Respondent relies upon the following statement in Kahn: because a significant part of an instructors or coachs role is to challenge or push a student or athlete to advance 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 [as applies to sports competitors] should apply in cases in which an instructors 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. (Kahn, at p. 996.) However, respondent ignores the fact that Wimple was not acting as a coach or riding instructor (see discussion, post, at pp. 22-23), and also the language in Kahn appellant specifically relies upon; namely, that even a coach may be found to have breached a duty of care to a student or athlete if he or she 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, quoting Knight, supra, 3 Cal.4th at p. 320.)

The Supreme Court recently relied upon Kahn in Shin v. Ahn (2007) 42 Cal.4th 482. In that case, the plaintiff sued the defendant for negligence as a result of injuries he sustained when the defendants tee shot hit him in the head during a round of golf. The trial court denied summary judgment for the defendant and the Court of Appeal affirmed, as did the Supreme Court, which remanded the case with directions that litigation should continue under the primary assumption of risk doctrine. The high court held that the doctrine of primary assumption of risk applies to golf and that being struck by a carelessly hit ball is an inherent risk of the sport. However, the court nevertheless concluded that summary judgment was properly denied because whether defendant breached the limited duty of care he owed other golfers by engaging in conduct that was so reckless as to be totally outside the range of the ordinary activity involved in [golf] [citation] depends on resolution of disputed material facts. (Id. at p. 486.) In determining whether the defendant acted recklessly, the trier of fact will have to consider both the nature of the game and the totality of circumstances surrounding the shot. In making a golf shot the player focuses on the ball, unlike other sports in which a players focus is divided between the ball and other players. That is not to say that a golfer may ignore other players before making a shot. Ordinarily, a golfer should not make a shot without checking to see whether others are reasonably likely to be struck. Once having addressed the ball, a golfer is not required to break his or her concentration by checking the field again. Nor must a golfer conduct a head count of the other players in the group before making a shot. [] Many factors will bear on whether a golfers conduct was reasonable, negligent, or reckless. Relevant circumstances may include the golfers skill level; whether topographical undulations, trees, or other impediments obscure his view; what steps he took to determine whether anyone was within range; and the distance and angle between a plaintiff and defendant. (Id. at pp. 499-500.)

Kahn, supra, 31 Cal.4th 990, and Shin v. Ahn, supra, 42 Cal.4th 482, both indicate that summary judgment cannot be upheld in this case on the basis of the doctrine of primary assumption of risk. As in those cases, there are disputed issues of material fact as to whether the conduct of respondents trail guide was so reckless as to be totally outside the range of the ordinary activity involved in the sport in which appellant was engaged. (Knight, supra, 3 Cal.4th at p. 320, fn. omitted.)

Unlike the activity at issue in Kahn, recreational trail riding is not a competitive sport; and many of those who engage in do so only occasionally and, as the Release acknowledges, are often unskilled. The responsibility of a trail guide is not just to insure to the extent possible that recreational riders exercise due care, but to insure that his or her own conduct also conforms to the degree of care appropriate to the circumstances. Wimples own testimony strongly suggests that the applicable standard of care requires him to seek and obtain the consent of riders and give notice before increasing the gait of walking horses. He recollected that prior to the incident in which appellant was injured he requested such consent and obtained it before moving his lead horse into a canter. As noted, that testimony was directly contradicted by both appellant and Lord, who also testified that Wimple moved his horse into a gallop, not a canter, without any warning whatsoever; and that at the time he began galloping his horse the only rider in the group even within his field of vision was Lord. This conflict in the evidence, which presents a triable issue of material fact, precludes a pretrial legal determination whether Wimple did or did not act recklessly within the meaning of Knight.

As in Kahn, supra, 31 Cal.4th 990, and Shin v. Ahn, supra, 42 Cal.4th 482, many as yet undetermined factors will bear on whether Wimples conduct was so reckless as to be totally outside the ordinary activity involved in [recreational trail riding]. (Knight, supra, 3 Cal.4th at p. 320, fn. omitted.) In making that determination, the trier of fact will need to consider both the nature of trail riding and the totality of circumstances surrounding appellants injury. Without attempting to identify all of the relevant factors, they will likely include the skill levels of appellant and the other riders in her group, rules pertaining to the use of Olema Valley trails, instructions Wimple may have received from his employer, whether a competent trail guide would know other horses would instinctively follow the pace of his lead horse, and whether Wimple was able to observe all of the riders in his group at the time he accelerated the pace of his horse.

Finally, we address the dissents claim that summary judgment should be affirmed due to appellants failure to adequately allegeand prove the requisite recklessness. To begin with, the recklessness with which we are concerned is not the reckless disregard of the safety of another, described in section 500 of the Restatement Second of Torts as distinct from and more culpable than ordinary negligence and discussed in Delaney v. Baker (1999) 20 Cal.4th 23,^[5]which the dissent erroneously thinks pertinent to this case.^[6] (Dis. opn., at pp. 11-13.) The recklessness here applicable consists instead of the very different type of conductdescribed in Knight, supra, 3 Cal.4th 296; namely, that which is reckless in the sense that it is totally outside the range of the ordinary activity involved in the sport. (Id. at p. 320, fn. omitted.) Knight recklessness need not be specifically alleged in the complaint (Kahn, supra, 31 Cal.4th at p. 1013 & fn. 4) because that issue became relevant only when respondents answer raised the affirmative defense of primary assumption of risk; a complaint should not state and attempt to controvert matters that the defendant might raise in [the] answer. (4 Witkin, Cal. Procedure (4th ed. 1997) Pleading,  381, pp. 481-483.)

The dissents main objection, that appellant has failed to show the necessary recklessness, seems to us indifferent to the law, not just the evidence, because it turns the standard of review on its head. As a legion of cases makes clear, a defendant cannot obtain summary judgment in his favor unless he has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence . . . . (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854; e.g., Saelzer v. Advanced Group 400, supra, 25 Cal.4th at p. 767; Mateel Environmental Justice Foundation v. Edmund A. Gray Co. (2003) 115 Cal.App.4th 8, 16-17.)In determining whether a defendant awarded summary judgment has met this test, the reviewing court shall  strictly construe the moving partys papers and liberally construe those of the opposing party to determine if they raise a triable issue of material fact. [Citation.]  (Bushnell v. Japanese-American Religious & Cultural Center (1996) 43 Cal.App.4th 525, 529.) While the burden of producing evidence may shift, [t]he burden of persuasion remains with the party moving for summary judgment. (Kahn, supra, 31 Cal.4th at p. 1003, citing Aguilar, at pp. 850, 861.) Moreover, [i]n ruling on the motion, the court must view the evidence in the light most favorable to the opposing party. (Shin v. Ahn, supra, 42 Cal.4th at p. 499.)

The dissent does precisely the opposite; instead of asking whether respondent has established, as a matter of undisputed fact that either that one or more elements of the cause of action cannot be established or that there is a complete defense (Mateel Environmental Justice Foundation v. Edmund A Gray Co., supra, 115 Cal.App.4th at pp. 16-17; see Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 853-854), the dissent places the burden on appellant to persuade the court respondent has no such defense, and compounds the error by construing the papers of the opposing party strictly and viewing the evidence in the light most favorable to the moving party.

As noted in Maxwell v. Colburn (1980) 105 Cal.App.3d 180, the statute setting forth the procedure for summary judgment requires the trial court to consider all inferences reasonably deducible from the evidence; hence, the fact that appellants attorney did not urge the trial court at the original hearing on the motion [for summary judgment] to draw certain specific inferences of negligence does not relieve the trial court or this court from a duty to take those inferences into account. (Id. at p. 185, italics added; Code Civ. Proc.,  437c, subd. (c).)  Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial. Any doubts about the propriety of summary judgment . . . are generally resolved against granting the motion, because that allows the future development of the case and avoids errors.   (Schachter v. Citigroup, Inc. __ Cal.App.4th __,__, 2008 DJDAR 971, 973, quoting Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.) None of the inferences the dissent draws from the deposition testimony are indisputable. For example, the dissents inference that Wimple clearly was a coach or instructor (dis. opn., at p. 8) (suggesting that his conduct is therefore comparable to that of the defendant swim coach in Kahn), is contradicted by Wimples description of his duties. When asked whether he gave the riders he supervised lessons or anything along those lines?or pointers, Wimple replied: Well, if they asked for help, certainly. Occasionally I would say: How are you guys doing, to give them another chance to say if they needed any help. [] Most of the time, people say, Fine. Rarely does it come up. Its not for riding instruction. [] . . . [] . . . [R]iding lessons are one thing; a trail ride is another. Wimples testimony indicates that his responsibility as a trail guide consisted of selecting the trails a group would use, insuring that horses stayed in single file, and controlling the speed at which horses were allowed to move.

The dissents statement that the evidence offered in opposition to the motion for summary judgment does not even hint that the conduct of Wimple was reckless within the meaning of Knight (dis. opn., at p. 9) is baffling, as it ignores the manifest conflict in the deposition testimony as to that central question. As earlier related, Wimple testified that in order to protect riders against injury he felt obliged to obtain their consent before allowing the gait of horses in the group to increase from a walk to any faster pace, and after receiving consent, to notify riders of his intent to increase the pace before actually doing so, and this was invariably his practice. He also denied galloping his horse on the day appellant was injured, because galloping was prohibited on Olema Valley trails. Appellant and Lord directly contradicted this testimony. Lord testified that Wimple suddenly galloped his horse on the day in question, prompting appellants horse to bolt as well, and she and appellant both stated that he did so without obtaining the consent of any rider and without any warning. Respondent has provided no evidence that a competent trail guide would not know that suddenly increasing the speed of his or her lead horse during the return to the stable would cause other horses in the group to do the same, thereby endangering riders not forewarned. Keeping in mind that the question is simply whether respondent has shown, on the basis of undisputed material facts, that appellant cannot prove Wimples conduct was reckless within the meaning of Knight and its progeny, all we decide is that respondent has failed to make the necessary showing and appellant therefore cannot be denied the right to present her case to a trier of fact. Whether Wimples conduct was so reckless as to be totally outside the ordinary activity depends on the resolution of disputed material issues of fact and an examination of the totality of relevant circumstances. (See Galardi v. Seahorse Riding Club (1993) 16 Cal.App.4th 817, 823 [evidence presented 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].)

As indicated, application of the defense of primary assumption of risk is amenable to resolution by summary judgment because it turns on the question of legal duty. The existence of a duty is not an immutable fact of nature, but rather an expression of policy considerations providing legal protection. (Shin v. Ahn, supra, 42 Cal.4th at p. 488.) In the sports context, the nature of a defendants duty depends heavily on the nature of the sport itself. (Knight, supra, 3 Cal.4th at p. 317.) [T]he object to be served by the doctrine of primary assumption of risk in the sports setting is to avoid recognizing a duty of care when to do so would tend to alter the nature of an active sport or chill vigorous participation in the activity. (Kahn, supra, 31 Cal.4th at p. 1011.) Nowhere, either in its pleadings below or in its brief in this court, does respondent claim that the duty of care appellant asserts would materially alter the nature of recreational trail riding or chill vigorous participation in that activity,^[7]and we do not think such a duty of care would have either effect. Nor has respondent argued that operators of recreational horseback riding facilities or those who use such facilities, many of whom are unskilled, consider the risks inherent in trail riding to include the danger that a supervising trail guide may unexpectedly provoke horses in his or her group to suddenly jump from a walk to a canter or gallop without notice to their riders. If such conduct was considered an integral part of the activity, a stable operator would be immune from liability if its trail guide suddenly whippedor threw a lit firecracker under the horse of an unsuspecting rider. No policy considerations justify such a result. As stated by Chief Justice George in his plurality opinion in Knight, supra,3 Cal.4th 296, and reiterated by Justice Mosk in his opinion for a unanimous Supreme Court in Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532,  it is thoroughly unrealistic to suggest that, by engaging in a potentially dangerous activity . . . , an individual consents to (or agrees to excuse) a breach of duty by others that increases the risks inevitably posed by the activity . . . itself, even where the participating individual is aware of the possibility that such misconduct may occur.  (Neighbarger, at p. 537, quoting Knight, at p. 311.)

If summary judgment was properly denied in Shin v. Ahn, supra, 42 Cal.4th 482, because there was a triable issue as to whether the defendant golfer adequately looked to see whether the area directly ahead of him was clear before taking his shot, and his recklessness therefore could not be determined as a matter of law, summary judgment should, a fortiori, not have been granted in this case.

DISPOSITION

The judgment is reversed and the matter is remanded for further proceedings consistent with this opinion. Costs on appeal are awarded to appellant.

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Kline, P.J.

I concur:

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Richman, J.

Dissenting opinion of Haerle, J.

I respectfully dissent for two reasons. First, I become concerned when an opinion of this court devotes as substantial an amount of space as thefirst section of themajoritys opinion doesto citing, but then distinguishing, prior published opinions of both our sister courts and our Supreme Court. By my estimation, the majority devotes well over half of that portionof its opinion to distinguishing cases going the opposite way from its ruling. In any event, I find the holdings inthose cases more compelling than the reasoning in thefirst section of the majoritys opinion.

Second, I am even moretroubled by the fact that the majority reverses the summary judgment granted by the trial court on the basis of a theorythat respondents agents conduct was either intentional or recklessnever either pled or urged by appellant in the trial court much less argued in her briefs to us.

I.

Probably the most obvious of the majoritys extensive efforts to distinguish cases holding differently than it does involves Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351 (Benedek). In the course of the majoritys argument as towhy the language of the instant release does not cover alleged negligence of the respondent, that case is cited many timesand quoted extensively in several paragraphs. Possibly the key sentences in those paragraphs are these: [U]nlike the release in Benedek, supra, 104 Cal.App.4th 1351, the Release here does not exempt respondent from liability for any personal injuries suffered while on [respondents] premises (maj. opn., p. 13) whereas the release at issue in Benedek made clear that the defendant cannot be held liable for any and all risks the releasor encounters while on the formers premises or using its facilities. (Maj. opn., p. 14.)

But a common-sense approach, as opposed to a Charybdis of completeness approach allegedly rejected by the majority (National and Internat. Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215 Cal.App.3d 934, 937 and maj. opn. at p. 14),^[8]compels the conclusion that both releases fall into the same camp: without using the term negligence, they nonetheless come within the rule that broad language describing the risks encompassed by the release (or Express Assumption of Risk if one preferssee 6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts,  1346, pp. 756-757) means that it covers the alleged negligence of the defendant. Benedek summarizes the law on this point thusly: An act of negligence is reasonably related to the object or purpose for which the release was given if it is included within the express scope of the release. [Citat