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

APPEAL from the Superior Court of Riverside County. Gloria Trask, Judge. Reversed.
Butler & Dodge, Terrence L. Butler and Anne G. Koza for Plaintiffs and Appellants.
Horvitz & Levy, Lisa Perrochet, James A. Sonne; Soltman, Levitt, Flaherty & Wattles and Garth M. Drozin for Defendant and Respondent.
I. INTRODUCTION
Plaintiffs and appellants Karan and Stan Eriksson are the parents of Mia Erikkson.^[1] Mia was an avid horse rider and equestrian competitor. Defendant and respondent Kristi Nunnink was Mia’s riding coach. In November 2006, Mia participated in an equestrian competition at Galway Downs (Galway) in Temecula. She was 17 years old at the time. Although Mia’s horse was recently injured in another competition, Nunnink persuaded Mia’s mother, Karan, that the horse was fit to ride in the Galway event. Based on Nunnink’s representations, Karan allowed Mia to compete. During the cross-country portion of the competition, Mia’s horse tripped over a hurdle. With the Erikssons looking on, Mia fell off the horse and the horse fell on Mia, causing Mia’s death.
The Erikssons sued Nunnink for wrongful death and negligent infliction of emotional distress. They alleged that Nunnink “increased the risk [of harm] reasonably assumed by” Mia when she allowed Mia to ride a horse that “was unfit to ride because of prior falls and lack of practice” and concealed this condition from the Erikssons. Nunnink moved for summary judgment, which the trial court granted. After the entry of judgment, the Erikssons appealed.
Nunnink’s motion was based on the doctrines of primary assumption of the risk and express contractual assumption of the risk. More specifically, Nunnink argued that the risk of death or serious injury to the horse rider is inherent in the sport of cross-country jumping and, alternatively, that Mia and Karan signed a pre-accident release, releasing Nunnink from any and all liability. Based on these arguments, Nunnink contended that the facts “show that [she] neither owed nor breached any duty, legally causing” the accident involving Mia. The trial court granted the motion. We reverse.
As to primary assumption of the risk, i.e., the element of duty, Nunnink failed to set forth facts in her separate statement of undisputed facts negating the Erikssons’ allegation that Nunnink increased the risk of injury to Mia by allowing her to ride a horse that was “unfit to ride because of prior falls and lack of practice.” Nunnink also failed to meet her burden of production as it relates to the element of breach of duty. As to express contractual assumption of the risk, Nunnink again failed to meet her burden of production that she was not grossly negligent. We further conclude that, even if Nunnink met her initial burden, triable issues of fact exist as to duty, breach of duty, and gross negligence. As for causation, if Nunnink’s undisputed statement of facts addressed the issue, the Erikssons have demonstrated a triable issue of fact.^[2]
II. FACTUAL SUMMARY
Mia began riding horses at age six and had trainers and coaches from that time on. She began competing at age 13 or 14. By the time of her death at age 17, she had participated in 25 to 30 “eventing” competitions and other horse shows. The sport of eventing involves three days of competition, including dressage, cross-country, and show jumping. Dressage is considered the least risky; cross-country the most dangerous. In 2006, Mia participated in eight such competitions in which she finished as high as 5th place and as low as 18th place. She competed approximately eight times in 2005 and five or six times in 2004.
Mia trained for eventing at Tahoe Meadows, a 25-acre equestrian facility owned by the Erikssons. Nunnink was her coach. Nunnink has been a professional trainer of horse riders for equestrian competitions for 25 years. She gave Mia three horse riding lessons each week, each lasting from one to three hours.
Mia’s preferred horse for eventing was Koryography, or “Kory,” a gelding owned by the Erikssons. In 2006, Kory was approximately seven years old. The regular care and feeding of Kory was performed by “Alfredo, the on-site person” at Tahoe Meadows, with Mia providing additional care. At competitions, Mia would equip, or “tack,” Kory herself.
Nunnink considered herself to be Mia’s coach, as distinguished from a trainer of Mia’s horse. Although Nunnink was not responsible for Kory’s regular care and feeding, Karan testified that she was “completely responsible for the horse” and was required “to make sure the horse was fit and ready to go” before an event. Nunnink attended all of Mia’s eventing competitions, and would walk the courses with Mia and help her warm up for the events. Nunnink states that she was “personally familiar” with Kory and his “tendencies, abilities, and capacity of responding to Mia[’s] commands . . . .” She also stated she would “have said something” if she felt that Mia’s horse should not be competing.
On May 21, 2006, Mia and Karan signed a document titled “RELEASE OF LIABILITY,” in favor of Nunnink. The relevant terms of this agreement will be discussed below.
From the beginning of 2006, one of Mia’s competitive goals for the year was to compete in a “two star” eventing competition at Galway. The event was to be held on November 3 through 5, 2006. It would be the first two star event Mia ever attempted. A two star event is more difficult than a one star event in that it has more jumps, the jumps are higher and wider, the speed is faster, and the course is longer. It was the highest level in terms of difficulty, size, and speed that Mia had attempted. Mia and Karan submitted an entry form for the event early in 2006.^[3]
In September 2006, Mia competed in an event at Twin Rivers. There, according to Karan, “Kory rapped a fence really severely,” resulting in a “big bruise.” A veterinarian examined Kory and said “the horse could be iced and if he trotted out okay in the morning[,] she could jump him.”
After Twin Rivers, according to Karan, Nunnink was worried about the cross-country course at Galway and “didn’t like how Kory was going.” Nunnink “wanted Mia to have more mileage” prior to Galway. Because of these concerns, Nunnink entered Mia in a three-day competition in Fresno known as “Ram Tap.” Karan and Nunnink agreed that if Kory “had trouble” at Ram Tap, “that was the end of the season.”
The Ram Tap event took place on October 20 through October 22, 2006—two weeks before the Galway competition. Mia, riding Kory, completed the dressage portion of the event. On the second day, Kory tripped on a hay bale during the cross-country course and fell to his knees, causing the horse’s head and nose to hit the ground. A veterinarian examined Kory and found that the horse suffered a concussion, an abrasion on his forehead, swelling and a hematoma on the pectoral area, a minor contusion in the chest, and small abrasions on his pectoral region. The veterinarian prescribed medication to reduce inflammation and recommended the use of ice to reduce swelling. Kory was withdrawn from the remainder of the Ram Tap competition. The next day, the veterinarian examined Kory again and found that the swelling had improved and made the following note: “complete exam – normal.” The veterinarian also noted that Kory’s next show was in two weeks. The veterinarian prescribed additional medicine, stated that the horse should be closely monitored for signs of head trauma, and instructed the Erikssons to follow up with their regular veterinarian.
Based upon the “trouble” Kory experienced at Ram Tap, Karan believed that Kory was a “lame” horse and that Mia’s eventing season was over. In her declaration, Karan states, “it had been decided after the fall at Ram Tap . . . that [Mia] would not be competing in the cross-country” at Galway. Accordingly, Kory’s shoes were changed, he “was removed from feed,” and they “did all the normal stuff that you do when a horse is done.” Kory did not practice any jumps during the week after Ram Tap. As far as Karan was concerned, “everybody was done.”
Although Mia was not to compete, Karan gave Mia permission to go to Galway because it was the end of the eventing season and Mia wanted to go to the parties and be with friends.
Karan testified to being misled about Mia’s intentions at Galway: “there was,” she said, “a little plot going on here” between Mia and Nunnink. Nunnink told Karan that they were “just going to throw the horse in the trailer so that it can get walked down there [at Galway].” Mia and Kory then travelled by car and trailer to Galway on Monday or Tuesday prior to the event. Nunnink arrived on Thursday, November 2, 2006. After Nunnink, Mia, and Kory arrived at Galway, Nunnink called Karan and said that Kory was “going smoothly” and they were “just going to ride dressage.” Although Karan expressed concern because Kory still “had a huge wound thing going on,” she agreed to allow Mia to perform the dressage portion of the competition.
The Galway course was designed, erected, maintained, and sanctioned by the United States Equestrian Federation and the United States Eventing Association. According to the rules applicable to the Galway event, each horse is checked by a veterinarian upon arrival and again prior to the dressage event. The first check, according to the rules, is “to establish first each horse’s identity and veterinary history (vaccination, etc.) and second, each horse’s state of health (but not its soundness).” According to an event official, the “primary reason for that examination is to make sure the horse is not sick and going to infect the other horses in the barn. It’s basically you don’t want an ill horse to contaminate other horses.” There is no evidence in the record regarding the performance or results of this check on Kory.
The second examination takes place before a committee comprised of the event’s ground jury and a veterinarian. For this examination, the competitors, with horse in hand, trot the horse in front of and away from the committee. According to the rules, “[t]he committee has the right and the duty to eliminate from the competition any horse that they judge is unfit, whether on account of lameness, lack of condition or for any other reason. In a doubtful case the Ground Jury may direct that the horse be put in an officially supervised holding area for examination by the Associate Veterinarian.”^[4] Kory was not excluded from the competition by either of these examinations.
On Friday, November 3, 2006, Mia and Kory performed the dressage event at Galway. Mia scored 72.20. In dressage, a lower score is better than a higher score. This score placed Mia 41st out of 45 contestants.
Mia called Karan after the dressage event and said they were “going to run” the cross-country event the next day. Karan testified at her deposition that she told Mia, “absolutely not. We had [an] agreement with [Nunnink] well prior to this [that] the horse was not going to run any more at the end of this year. . . . The horse was hurt at Ram Tap and we had [an] agreement. . . . I said you are not running. I withdraw any permission to run.” She told Mia to have Nunnink call her.
Karan spoke with Nunnink later that day. At her deposition, Karan described the conversation as follows: “I said [to Nunnink] there is no way she can run. When we do events, we go down ahead of time, we stay there, we feed her. We make sure she’s sleeping. She’s just down there having a good time.” Nunnink told Karan that Mia “did really well. She got a 50 in dressage. The horse is good to go. He’s going to go tomorrow.”^[5] Karan told Nunnink, “absolutely not. I’m on my way down there.”^[6] Karan arrived at Galway late that night.
The next morning, Saturday, November 4, 2006, Karan spoke to Nunnink twice, once in a barn and later in the warm-up ring. At the barn, Nunnink told Karan not to worry, that Kory was “fine, he’s great, you know, he’s good.” She warned Karan not to “get Mia upset” and not to “get everybody all rattled.” Karan asked Nunnink if Kory “is schooled,” and Nunnink told her, “yeah, we’ve been jumping [i.e., practicing] all week. He’s good.”^[7] Later, at the warm-up ring, Karan asked Nunnink “if she was, you know, absolutely certain and she said, you know, I’m the coach, shut up. It’s fine. Get out of here. You’re making everybody nervous.” Nunnink also assured Karan that if Kory did not look good, she would “pull him” from the competition.^[8]
Karan did not tell Mia that she was not allowed to ride in the competition because, according to Karan, Nunnink “had already made the decision that she was going to ride.” Nor did she inform any Galway event official that Mia was not permitted to compete in the event. Karan explained that she did not overrule Nunnink’s decision and allowed Mia to compete because she “relied on [Nunnink’s] expertise as a trainer.”
That morning, Nunnink and Mia walked and examined the entire course. In Nunnink’s declaration, she states that the course was “very challenging,” yet one in which Mia “had the necessary training, capabilities, and experience to negotiate with her horse, Koreography”; the obstacles, jumps, and fences were “very obvious and plain to view, and quite negotiable . . . .” Mia walked the course an additional time before the competition. Each walk took approximately one hour or one hour and fifteen minutes. According to Nunnink, Mia practiced and warmed up with Kory on the official practice course without apparent difficulty. No one, including Mia, complained to Nunnink that Kory was behaving in a manner that suggested the horse would be a danger to Mia in the competition.
The cross-country course at Galway includes numerous hurdles, or fences, over which the horse must jump. Each is numbered. (A pair of fences placed close together is identified by a single number and an “A” for the first fence in the pair and a “B” for the second.) Under the competition rules applicable at Galway, if a horse stops, or refuses to jump a fence four times, the rider is immediately and automatically disqualified from the competition.^[9]
In a declaration submitted in support of her motion for summary judgment, Nunnink states that Mia “was an experienced equestrian competitor . . . and had demonstrated that she was capable of responsibly competing” at Galway. Nunnink based this on her “own observation in light of [her] expertise in riding, training, and observation of such events over more than 25 years.” She further states that, based upon her own riding of Kory, her training of Mia on the horse, and observing the horse being put through the type of skills required for the Galway event, Kory was capable of successfully competing in the Galway event.
Shortly after Mia began her run on the Galway cross-country course, Nunnink became concerned. At fence 10A, Kory made his third stop. By this time, it was obvious to Nunnink that Mia and Kory “were not having a good day and things were not going well.” According to Karan, the hematoma that Kory had developed at Ram Tap was “clearly agitating him” during the run. Nunnink was surprised that Mia did not pull out of the competition and “call it a day.”^[10]
Kory made a fourth refusal at fence 17B, disqualifying Mia. Nevertheless, Mia continued on.^[11] Course officials began looking for a safe location to intervene. The fence judge at fence 20 was directed to stop Mia. Mia did not get there. At fence 19, Kory balked, then tripped over the hurdle. Mia was sent over Kory’s head and onto the ground. Kory then fell and landed on Mia, injuring her. Mia was taken to a hospital, where she died later that day as a result of her injuries.
Two or three months after Mia’s death, Nunnink was at Tahoe Meadows. She was with Sue Pipal, an acquaintance or friend of Karan. As they looked at Kory, Nunnink stated, “out of the blue,” “‘Karan told me not to let Mia ride.’”
When Nunnink was asked at her deposition for her opinion as to what caused the fall, Nunnink answered: “Obviously the horse and Mia did something wrong. It just seemed to me that the horse didn’t want to go out that day, and Mia kept encouraging him, and at some point he—he made a mistake.”
III. PROCEDURAL HISTORY
The Erikssons sued Nunnink and other parties in May 2008. They alleged two causes of action against Nunnink: the third cause of action for negligence and the seventh cause of action for negligent infliction of emotional distress. The Erikssons alleged that Nunnink “coached, supervised, and provided services for the event which substantially increased the risk reasonably assumed by [Mia] because, among other things, the course was made more dangerous in order to make the competition more thrilling to spectators, thereby significantly increasing the risk of severe injury or death or negligently violated the established and recognized standards of care for protection of riders and horses imposed on and assumed by the various individuals pursuant to the promulgations, regulations, rules and practices and procedures of the sport’s governing bodies; and the horse that [Mia] rode was unfit to ride because of prior falls and lack of practice and this unfit condition was concealed from [the Erikssons] . . . .” (Italics added.) According to the complaint, Mia’s death was caused by “the combined negligence and fault of each of the defendants . . . , which increased the risk of her serious injury or death and was not assumed by her or [the Erikssons] prior to the injury . . . .” (Italics added.)
In support of their negligent infliction of emotional distress claim, the Erikssons alleged that they “were in the audience watching their daughter while she participated in the subject event . . . [and] observed their daughter and her horse fall while attempting to jump one of the fences and the horse fall onto and crush [Mia], causing her to suffer fatal injuries.”
Nunnink answered the complaint in June 2008. In February 2009, she filed a motion for summary judgment on the ground that, as to her, the complaint “has no merit, as there is no triable issue as to any material fact to put before a jury . . . .” More particularly, she argued: (1) she had no duty to Mia; (2) she breached no duty owed to Mia; (3) nothing Nunnink did or failed to do legally caused any damage to Mia; (4) recovery is barred by the doctrine of primary assumption of risk; and (5) the Erikssons expressly, in writing, agreed to hold Nunnink harmless from any claim arising from Mia’s use of Nunnink’s services.
Following a hearing, the court granted the motion. In the judgment, the court stated: “There was no showing of competent evidence fulfilling the requisite elements of duty, breach of duty, and legal causation on the part of [Nunnink], legally causing the subject incident . . . , and the action is barred by the primary assumption of the risk doctrine.” The Erikssons appealed.
IV. ANALYSIS
A. The Trial Court’s Evidentiary Ruling
Nunnink asserts that her objections to virtually all of the Erikssons’ evidence was sustained and therefore cannot be considered. We reject the argument.
In opposing the motion for summary judgment, the Erikssons submitted 20 exhibits, including documentary evidence, declarations, excerpts of deposition testimony, and two digital video disks—one of the Ram Tap event and one of the Galway event. They set forth a list of these exhibits in a document titled “PLAINTIFFS’ SYNOPSIS OF EVIDENCE AND AUTHORITIES IN SUPPORT OF THEIR OPPOSITION TO DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT; DECLARATION OF ANNE G. KOZA” (the synopsis). On a separate form, but attached to the synopsis, is a declaration by the Erikssons’ attorney, Anne G. Koza, in which she states that “[e]ach of the documents described above are true and correct copies of the originals that have been produced and/or identified in discovery or were obtained from websites depicted on the documents themselves” (the Koza statement).
Nunnink filed written objections to certain evidence submitted by the Erikssons, including the entirety of the declarations by Sue Pipal and Karan, certain statements in Pipal’s declaration, and the Koza statement. As to the Koza statement, Nunnink objected on numerous grounds, including “[l]ack of foundation,” “vague and ambiguous,” “speculation,” “irrelevant,” and “argumentative.” In part, the objection is based upon Koza’s failure to incorporate the list of exhibits into her declaration; as a result, it is not clear what Koza meant by her reference to the “documents described above.”
At the hearing on the motion, the court overruled the objections to the entirety of Pipal’s and Karan’s declarations and overruled the objection to Pipal’s statement that Nunnink told her, “Karan told me not to let Mia ride.” The court sustained two objections: the objection to the Koza statement and an objection to another specific statement in the Pipal declaration. The court did not specify the ground or grounds for sustaining the two objections. Nor was there any discussion regarding the objections or the effect of the court’s ruling on the admissibility of the evidence listed in the synopsis.
In their opening brief on appeal, the Erikssons do not mention the court’s ruling on the objections. In the respondent’s brief, Nunnink argues that the sustaining of the objection to the Koza statement had the effect of striking all of the exhibits referred to in the synopsis. We disagree. First, the nature of the objection asserted by Nunnink is to the Koza statement itself, not to the evidence listed in the synopsis. Although the sustaining of the objection to the Koza statement arguably removes a basis for authenticating the evidence listed in the synopsis, this does not automatically or necessarily result in the striking of the evidence. If Nunnink believed the evidence listed in the synopsis was rendered foundationless without the Koza statement, she was required to object to the evidence on that ground. She did not.
Second, if Nunnink’s interpretation of the court’s ruling on the Koza statement was correct, the ruling would be inconsistent with the court’s overruling of objections as to other items of evidence listed in the synopsis. The declarations of Pipal and Karan were included in the synopsis. If Nunnink’s view of the ruling on the Koza statement is correct, then neither of these declarations were admissible. However, the court overruled Nunnink’s specific objections to these declarations, as well as to a specific statement in the Pipal declaration. Moreover, the court not only overruled the objection to the Pipal declaration, but expressly stated at the hearing that it was considered. If, as Nunnink argues, the court effectively disallowed all of the Erikssons’ evidence when it sustained the objection to the Koza statement, then the overruling of Nunnink’s objections would be inconsistent or superfluous.
The only reasonable interpretation of the court’s ruling is that the ruling on the objection to the Koza statement affected only that statement, not any of the evidence submitted by the Erikssons. We therefore reject Nunnink’s argument.
B. Legal Principles Concerning Nunnink’s Duty and the Doctrine of Primary Assumption of the Risk
Both causes of action asserted against Nunnink are based upon Nunnink’s alleged negligence toward Mia.^[12] An essential element of an action for negligence is the existence of a duty of care to the plaintiff. (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397.) The existence and scope of a defendant’s duty is an issue of law to be decided by the court. (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161; Laabs v. Southern California Edison Co. (2009) 175 Cal.App.4th 1260, 1272 [Fourth Dist., Div. Two].) As such, it is generally amenable to resolution by summary judgment. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1004 (Kahn); Garcia v. W&W Community Development, Inc. (2010) 186 Cal.App.4th 1038, 1044-1045 [Fourth Dist., Div. Two].)


TO BE CONTINUED AS PART II….


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