ERIKSSON v. NUNNINK












Filed 1/10/11







CERTIFIED FOR PARTIAL PUBLICATION^*


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

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

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

STORY CONTINUE FROM PART II….


“Our review of the summary judgment motion requires that we apply the same three-step process required of the trial court. [Citation.] ‘First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading. [Citations.] [¶] Secondly, we determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in movant’s favor. [Citations.] . . . [¶] . . . [T]he third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. [Citation.]’ [Citation.]” (Todd v. Dow (1993) 19 Cal.App.4th 253, 258.)
“‘The purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute.’ [Citation.] Materiality depends on the issues in the case, and what matters are at issue is determined by the pleadings, the rules of pleadings, and the substantive law. [Citation.] ‘The complaint measures the materiality of the facts tendered in a defendant’s challenge to the plaintiff’s cause of action.’ [Citation.]” (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 172, italics added.)
Here, as part of their allegations relative to Nunnink’s “duty of care,” the Erikssons alleged “[Nunnink] . . . coached, supervised, and provided services for the event which substantially increased the risk reasonably assumed by [Mia] because, among other things, . . . 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]; all of which combined to be a substantial factor . . . in the happening of [Mia’s] injury and death and which substantially increased the risks to [Mia] in her participation in the equestrian event.”
To be entitled to summary judgment as it relates to the element of duty of care, Nunnink therefore had to negate the above “material factual allegation.” (Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1534-1535 [the burden rests with the defendant to affirmatively negate the existence of a duty].)^[1]
To negate this material factual allegation as it pertains to duty, Nunnink must set forth those material facts which would entitle her to judgment as a matter of law. As explained in Teselle, this is accomplished through the undisputed statement of material facts. “The purpose [of summary judgment] is carried out in [Code of Civil Procedure] section 437c, subdivision (b)(1) by requiring the moving party to include in the moving papers ‘a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed . . . [together with] a reference to the supporting evidence.’ ‘The complaint measures the materiality of the facts tendered in a defendant’s challenge to the plaintiff’s cause of action’ [citation], hence the moving party’s separate statement must address the material facts set forth in the complaint.” (Teselle v. McLoughlin, supra, 173 Cal.App.4th at p. 168, italics added.) As set forth in United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 335, the purpose of the separate statement is “to afford due process to opposing parties . . . .” “‘Where a remedy as drastic as summary judgment is involved, due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail.’” (San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316.)
Under the present facts, it was incumbent on Nunnink to set forth in her separate statement of undisputed facts a clear statement negating the element of duty. This could be done in two ways. Nunnink could have set forth an undisputed fact that established: (1) she had no control over or responsibility as to whether Mia and Kory participated in the cross-country portion of the Galway competition, or (2) Kory was not unfit for that competition. As we explain below, she did neither; as a result, she failed to negate the Erikssons’ material allegation as it relates to duty of care.
In Nunnink’s separate statement of undisputed facts, there is no undisputed fact negating Nunnink’s control or responsibility as to whether Mia and Kory participated in the cross-country event. In regard to the unfitness of the horse, the undisputed fact that comes closest to addressing the issue is undisputed fact No. 13, which states: “At no time before Mia Eriksson began her cross-country course run did anyone, including Mia Eriksson, ever complain that her horse was not behaving characteristically or in a manner that would suggest that Kory would present a danger to Mia Eriksson were she to ride that horse in the eventing competition, and she received a very good score of 50 in the dressage portion of the competition, on the previous day . . . .”
The import of this “undisputed fact” is that no one complained to Nunnink that the horse was unfit for the competition. It does not say that the horse was fit for the event or that she did not allow Mia to ride an unfit horse in the event. Thus, it does not address the issue of duty and primary assumption of the risk. Nor does it directly address whether she breached this duty of ordinary care. Under our facts, to establish that she did not breach her duty of care, she must establish that she did not know or should not have reasonably known that the horse was unfit. The distinction between “no one complained to her,” and “I did not know nor should I have reasonably known,” is significant. The Erikssons could very well admit that no one complained to Nunnink about the fitness of the horse, yet Nunnink, based on her own expertise, could still have known or had reason to know that the horse was unfit. Thus, the “undisputed fact,” as phrased, does not put the issue to rest.
Summary judgment is a “drastic remedy.” (Mateel Environmental Justice Foundation v. Edmund A. Gray Co. (2003) 115 Cal.App.4th 8, 17.) As stated in Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289 and 290: “The defendant must demonstrate that under no hypothesis is there a material factual issue requiring trial. [Citation.] If the defendant does not meet this burden, the motion must be denied.” (Italics added.) Within the context of summary judgments, lawyers can place great care into the drafting of authorities, separate statement of undisputed facts, and declarations proffered in support thereof. Words mean something; what is stated or not stated has significance. Nunnink failed in her statement of undisputed facts to lay to rest the Erikssons’ allegation that the horse was unfit or that Nunnink knew or should have known of the unfitness. Because of this, Nunnink did not meet her burden to demonstrate that, as a matter of law, there were no triable issues of fact relative to her duty of care and breach of duty.
D. Regardless of the Deficiencies in Nunnink’s Separate Statement of Undisputed Facts, Triable Issues Nonetheless Exist as to Duty and Breach of Duty
In her arguments on appeal, Nunnink relies on evidence that is not encompassed by her separate statement of undisputed facts. However, even if we look beyond the separate statement and consider the additional evidence discussed in the briefs, the evidence submitted reveals triable issues of material fact relative to duty and breach of duty.
As previously discussed, there is evidence of Nunnink’s responsibility for determining Kory’s fitness for competition, as well as her control over whether Mia and Kory participated in cross-country jumping.
On appeal, in support of the proposition that Kory was not unfit to compete, Nunnink relies heavily on evidence of the Ram Tap veterinarian report and the rules applicable at Galway that the horses undergo two inspections. Based upon this evidence, she asserts that Kory was “cleared by three veterinarians.” This overstates the evidence. The Ram Tap veterinarian noted that Kory suffered a concussion and other injuries. She prescribed medication for Kory, advised the Erikssons to monitor Kory closely for head trauma, and instructed them to have a follow up with their regular veterinarian. There is no evidence that the follow-up visit occurred. Nunnink’s assertion that the veterinarian “cleared” Kory for the Galway competition appears to be based on the following note in the Ram Tap veterinarian’s report: “Next show 2 wks.” This note immediately precedes the instructions, “Monitor close for signs of head trauma” and “Follow up w/Regular Vet.” Viewing the report in its entirety, the reference to the next show in two weeks cannot reasonably be construed as clearing Kory for competition.
The second veterinarian check relied upon by Nunnink was purportedly performed upon Kory’s arrival at Galway. According to the rules applicable at Galway, this check is merely “to establish first each horse’s identity and veterinary history (vaccination, etc.) and second, each horse’s state of health (but not its soundness).” (Italics added.) As a Galway official testified, this check is to make sure that “the horse is not sick and going to infect the other horses . . . .” There is no direct evidence in the record that this check on Kory’s health actually occurred. Even if we infer from the existence of the rule and the fact that Kory was permitted to compete that the check took place, there is no evidence that the veterinarian went beyond the duties specified in the rules and checked on Kory’s “soundness” for competition.
The third veterinarian check relied on by Nunnink is the “First Horse Inspection” that occurred prior to dressage. As explained above, each horse is trotted out by the rider prior to dressage in front of a committee comprised of the event’s ground jury and a veterinarian. Under the rules, the “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.” Although our record includes the rules requiring this inspection, there is no evidence submitted by any of the parties that this inspection actually occurred and included the required veterinarian. If we infer that it took place, it appears that the “inspection” involves only a visual observation of the horse from a distance, not a medical examination. Moreover, there is no evidence that a veterinarian on the committee who supposedly observed Kory knew about Kory’s recent fall or that the veterinarian did anything to determine whether Kory was fit to compete in the cross-country event.
When the evidence and the circumstances surrounding the three veterinarians are examined, they provide only weak evidence that any veterinarian, let alone three, actually considered Kory’s fitness to compete in the cross-country event in light of his recent fall and injury.
Nunnink also relies upon a statement in her declaration that she was familiar with Kory and, in November 2006, “recognized that horse as capable of successfully competing in the Galway Downs 3-day Event . . . .” This statement, like the statement regarding the absence of complaints about Kory’s behavior discussed above, does not directly address Kory’s fitness for the cross-country event. Even an injured, unfit horse may be capable of successfully competing; and yet, sending a rider out on such a horse will nevertheless increase the risk of injury inherent in the sport.
Reviewing the record as a whole, the evidence, viewed favorably to the Erikssons, reveals the following: Nunnink has been a professional trainer of horse riders for equestrian competitions for 25 years. 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.” After Twin Rivers, according to Karan, Nunnink was worried about the cross-country course at Galway and “didn’t like how Kory was going.” After receiving a bruise at Twin Rivers, Nunnink was worried about Kory and believed the horse needed some more experience, or “mileage,” prior to the Galway event; Mia therefore entered the Ram Tap competition. On the second day at Ram Tap, 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 Butte and antibiodics to reduce inflammation and recommended the use of ice to reduce swelling. Kory was withdrawn from the remainder of the Ram Tap competition. 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. Kory remained on the medications up to the time of Galway. Kory did not practice any jumps during the week after Ram Tap. 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. She was told by Nunnink that the horse was very lame after Ram Tap. She was further told that the horse needed tack walking and that Nunnink was going to take him home with her. Kory’s injuries had not fully healed and caused him agitation during the cross-country run. Kory was not fit or prepared to run the cross-country course. This last point is based in part on the video evidence of the Ram Tap incident and Mia’s last ride. The Ram Tap video depicts a significant fall involving the entire front portion of Kory's body. And, in viewing the Galway video, even aside from the trip at fence 19 that took Mia’s life, Kory appears to be having great difficulty maneuvering a number of jumps. As Nunnink admitted, it is obvious from early on in the run that “things were not going well.” All told, there is sufficient evidence to create a triable issue of fact as to whether, on the day of the incident, Kory was fit to undertake the cross-country course, whether Nunnink allowed or encouraged Mia to ride, and whether Nunnink knew or should have known of Kory’s unfitness.
E. Triable Issues Exist as to Causation
As explained earlier, due process dictates that we limit review to the facts set forth in Nunnink’s separate statement of undisputed facts. Here, Nunnink posited no undisputed fact relative to the issue of causation. The closest statement is undisputed fact No. 22, wherein Nunnink sets forth: “[Mia’s] own athletic, recreational and sporting activity of competitive equestrian riding brought her to incur fatal injuries on November 4, 2006.” Assuming that this is sufficient to cover the area of “legal causation,” there clearly exists a triable issue as to whether the fitness of the horse was a contributing factor to Mia’s failure to clear fence 19.^[2]
F. Express Written Release
As an additional ground for summary judgment, Nunnink contends the Erikssons’ claims are barred by the “RELEASE OF LIABILITY” signed by Mia and Karan in May 2006. As noted above, the trial court did not base its ruling on this ground. Because we hold that summary judgment was improper based on the issues of duty, breach, or causation, we must address the effect of the release.
The release agreement provides, in relevant part:
“This RELEASE OF LIABILITY is made and entered into . . . by and between KRISTI NUNNINK, hereinafter designated ‘Trainer’; and the below signed, hereinafter designated, ‘Rider.’
“In return for the use today, and on all future dates, of the property, facilities and services provided by Trainer, the Rider, their heirs, assigns and legal representatives, her[e]by expressly agree to the following: [¶] . . . [¶]
“2. RIDER AGREES TO ASSUME ANY AND ALL RISKS INVOLVED IN OR ARISING FROM RIDER[’]S USE OF OR PRESENCE AT TRAINER[’]S FACILITIES, including, without limitation, but not limited to, the risks of death; bodily injury; property damage; falls; kicks; bites; collisions with vehicles, horses or stationary objects; fire or explosion; the unavailability of emergency medical care; or the negligence or deliberate act of another person or animal.
“3. Rider agrees to hold Trainer . . . completely harmless and not liable and release [Trainer] from all liability whatsoever, and AGREES NOT TO SUE them on account of or in connection with any claims, causes of action, injuries, damages, costs or expenses arising out of Rider’s use of Trainer’s services or facilities or presence upon any property used, including without limitation, those based on death, bodily injury, . . . except if the damages are caused by the direct, willful and wanton negligence of the Trainer. [¶] . . . [¶]
“5. Rider agrees to indemnify Trainer against, and hold her harmless from, any and all claims, causes of action, damages, judgments, costs or expenses including attorney’s fees, which in any way arise from Rider’s use of Trainer[’]s services or presence upon Trainer’s facilities or property used by or with Trainer.
“6. Rider agrees to abide by all of Trainer’s rules, regulations and instructions.
“7. If Rider is using their own horse, the horse shall be in good condition and free from infection, contagious or transmissible disease. Trainer reserves the right to refuse the presence or use of any horse if not in proper health or deemed dangerous or undesirable by Trainer.
“8. Rider will be allowed to ride horses provided by Trainer. Rider is or will make their self aware of the characteristics of any horse to be ridden, and voluntarily assumes all risk from riding any horse.
“9. When the Trainer, Rider and (if minor) Rider’s parent sign this Release, it will then be irrevocable and binding on all parties, subject to the above terms and conditions.”
The document is signed by Nunnink as “Trainer,” by Mia as “Rider,” and by Karan as “Rider’s Parent.”
On appeal, the parties focus their arguments on issues concerning the ambiguity or lack thereof of the release agreement. For the reasons that follow, we conclude that, even if the release is unambiguous and enforceable as to a claim of ordinary negligence, it does not preclude the Erikssons’ actions against Nunnink to the extent they are based upon aggravated misconduct by Nunnink.
In City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 754 (Santa Barbara), the court considered whether a release agreement that purported to release the City of Santa Barbara and others (the releasees) from any loss “caused by any negligent act or omission of the releasees or otherwise” precluded liability arising from the City’s gross negligence. (Id. at pp. 750-752 & fn. 3.) The court explained that “future . . . liability for ‘ordinary’ or ‘simple’ negligence generally may be released . . . .” (Id. at p. 758.) Such releases have been frequently upheld in the context of sports and recreation programs. (Id. at p. 759; see, e.g., Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1356-1357.) However, “an agreement made in the context of sports or recreational programs or services, purporting to release liability for future gross negligence, generally is unenforceable as a matter of public policy.” (Santa Barbara, supra, at p. 751.)
The principle rationale for refusing to enforce releases of liability for future gross negligence is that public policy should “‘discourage’ (or at least not facilitate) ‘aggravated wrongs.’” (Santa Barbara, supra, 41 Cal.4th at p. 762; see also id. at p. 776.) Thus, the Supreme Court approved of the rule adopted in a majority of states that “an agreement that would remove a party’s obligation to adhere to even a minimal standard of care, thereby sheltering aggravated misconduct, is unenforceable as against public policy.” (Id. at p. 762; see also id. at p. 777, fn. 54; see also Allan v. Snow Summit, Inc., supra, 51 Cal.App.4th at p. 1372.)
Again, we address Nunnink’s separate statement of undisputed facts for purposes of determining whether she met her initial burden of production. While our record does not contain a copy of Nunnink’s answer, we assume she asserted the existence of the “Release” as an affirmative defense. (Baker v. Ferrel (1947) 78 Cal.App.2d 578, 579 [“a release is an affirmative defense which must be specially pleaded”].)
In Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 858, the court, in discussing the defendant’s burden of proof at summary judgment relative to an affirmative defense, stated: “If the moving defendant argues that it has a complete defense to the plaintiff’s cause of action, the defendant has the initial burden to show that undisputed facts support each element of the affirmative defense. Once it does so, the burden shifts to plaintiff to show an issue of fact concerning at least one element of the defense. [Citation.] If, in anticipation of an affirmative defense, the complaint alleges facts to refute it, the pleadings themselves create ‘a material issue which defendant[] would have . . . to refute in order to obtain summary [judgment].’ [Citation.]” With respect to the issue of whether a release is valid as to gross negligence, the court in Santa Barbara stated: “Our holding simply imposes a limitation on the defense that is provided by a release. A plaintiff is not required to anticipate such a defense [citation]; instead, the defendant bears the burden of raising the defense and establishing the validity of a release as applied to the case at hand.” (Santa Barbara, supra, 41 Cal.4th at p. 780, fn. 58, italics added.)
Here, the Erikssons’ complaint set forth the material factual allegation that Nunnink unreasonably increased the inherent risk of injury in horse jumping by allowing Mia to ride an unfit horse. The Erikssons further alleged that Nunnink concealed the horse’s unfitness from Karan.^[3] Whether pled in anticipation of Nunnink’s assertion of the defense of the “release,” as discussed in Bacon, or simply as facts of the case at hand, as in Santa Barbara, it was incumbent upon Nunnink, as part of her burden of production, to submit undisputed facts negating these material factual allegations, which could well equate to gross negligence. This she did not do.^[4]
“Gross negligence,” as defined in Santa Barbara, means either a want of even scant care or an extreme departure from the ordinary standard of conduct. (Santa Barbara, supra, 41 Cal.4th at p. 754.) It “connotes such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results . . . .” (Calvillo-Silva v. Home Grocery (1998) 19 Cal.4th 714, 729.)
Here, Nunnink was an experienced eventing coach. She was fully aware of all the incidents involving Kory and the injuries he received. Thus, as earlier stated, triable issues exist as to the reasonableness of her conduct in allowing Mia and Kory to participate in the cross-country portion of the Galway event. Placing the disputed facts as to the unfitness of Kory in conjunction with disputed facts as to Nunnink’s knowledge and the representations she made to Karan, triable issues exist as to the presence of gross negligence. Viewing the evidence in the light most favorable to the Erikssons, Nunnink knew or should have known that Kory was unfit to jump. And, in spite of this knowledge, she affirmatively misrepresented facts relative to the condition of Kory that led to Mia’s participation in the cross-country event.^[5] Evidence from the record, again in the light most favorable to the Erikssons, shows that Nunnink told Karan that they were “just going to throw the horse in the trailer so that it [could] get walked [at Galway].” After Nunnink arrived at Galway, she called Karan and said that Kory was “going smoothly” and they were “just going to ride dressage.” The next day, Nunnink told Karan that Mia did really well in dressage, with a score of 50. She further indicated that Kory had been jumping all week and was good to go. On the day of the cross-country jumping, 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 also assured Karan that if Kory did not look good, she would “pull him” from the competition.
Given all of these facts, triable issues exist as to whether Nunnink’s conduct was grossly negligent and therefore outside the scope of the release.
V. DISPOSITION
The judgment is reversed. The Erikssons shall recover their costs on appeal.
CERTIFIED FOR PARTIAL PUBLICATION

/s/ King
J.


We concur:

/s/ McKinster
Acting P.J.

/s/ Miller
J.




Publication courtesy of California pro bono lawyer directory.
Analysis and review provided by Chula Vista Property line Lawyers.
San Diego Case Information provided by www.fearnotlaw.com

---