Appeals Court Affirms that Attorney Assumed Risk of Injury in Horse-riding Accident

Nov 6, 2009

A California state appeals court has affirmed a trial court’s ruling that a working cattle ranch had no liability for personal injuries sustained by a guest, who asked a rancher to let her ride a horse, fell off that horse and was subsequently injured .
The incident occurred when the plaintiff, attorney Ellyn Levinson, and others gathered at the cattle ranch to celebrate a legal victory with the prevailing party with a barbeque. Levinson asked the hosts to allow her to ride one of their horses. After assuring them that she had ridden horses before, she saddled up on Pistol, a quarter horse trained as a cattle horse. Unable to control the horse when it later began to gallop, the attorney fell off and was injured.
“No novice in court, she sued her social hosts for damages,” according to the appeals court. “The trial court held that primary assumption of the risk defeated her claims because a person who engages in the inherently dangerous activity of horseback riding generally assumes the risk of being injured by the horse or by the careless conduct of others involved in the activity. (Knight v. Jewett (1992) 3 Cal.4th 296, 316 [11 Cal. Rptr. 2d 2, 834 P.2d 696]; e.g., Harrold v. Rolling J Ranch (1993) 19 Cal.App.4th 578, 585–588 [23 Cal. Rptr. 2d 671].)”
On appeal, the plaintiff conceded that “the doctrine of primary assumption of the risk applies to horseback riding but contends that triable issues of material fact exist as to whether the social hosts, the owners of Pistol, breached a duty to not recklessly ‘increase the inherent risks of riding by: (1) placing her on Pistol, a horse specially trained for sorting cattle on the ranch and for reining and team penning events at amateur competitions, thus creating a mismatch between her inability to control a horse and Pistol’s highly-trained abrupt behaviors; (2) failing to ask about her skill level in riding and controlling horses; (3) failing to warn her of Pistol’s trained behaviors of starting, stopping and turning abruptly; (4) telling her not to control Pistol by pulling on the reins; and (5) giving her no instruction on how to control Pistol.”
In affirming the ruling for the owners of Pistol, the court noted that the defendants “were not commercial operators whose services and horses were for hire for a leisurely, supervised trail ride; indeed, they were not organizers or sponsors of any horseback riding event. As hosts of a social gathering at their cattle ranch, they simply granted a guest’s request to take one of their horses for an unsupervised ride in a large field after she assured them that she had previously ridden horses. Pistol, trained to engage in abrupt movements when working cattle or performing in a rodeo, was precisely the type of horse that the guest would expect to ride in an open field at the cattle ranch. Thus, Pistol was not ‘unduly dangerous’ for that purpose. And undisputed evidence showed that, when ridden as a pleasure horse, Pistol was a gentle horse who had ‘never before run off or hurt anyone.’ No evidence was submitted which would support an inference other than that Pistol was simply “a ‘horse behaving as a horse’” (Harrold v. Rolling J Ranch, supra, 19 Cal.App.4th at pp. 581, 587, 588) when he uncharacteristically galloped off and the rider was injured when she did not control him.
“Although, in hindsight, it became evident the injured rider lacked the skills to control a horse in that setting, the owners of Pistol were entitled to accept the rider’s representation that she had experience riding horses, thus indicating she knew how to control horses. To impose a duty on the social host to second-guess the guest’s assertion and to cross-examine her about the extent of her experience would alter and chill the sport of horseback riding in the ultimate way—by precluding social guests from engaging in the sport. This is so because, if such an inquiry were necessary to avoid potential liability, few, if any, social hosts would consent to a guest’s request to ride one of the host’s horses. There being no evidence that Pistol’s training as a cattle horse posed an increased risk to a rider not engaged in cattle herding or rodeo riding, the hosts had no duty to warn the rider about Pistol’s skills as a cattle horse. Telling the rider not to pull back on the reins while a host was adjusting Pistol’s stirrups is not susceptible to an interpretation by any person who has ridden a horse, including those with minimal experience, as a direction to never pull on the reins to control Pistol, even if he began to run away with her; thus, the admonition did not recklessly increase the risk of harm beyond that inherent in horseback riding. And, given the rider’s professed experience in horseback riding, the hosts had no duty to give her instructions on how to control Pistol.
“Simply stated, when the social guest asked her social hosts to allow her to ride one of their horses on their cattle ranch, and she professed to have the experience to do so, she ‘bit off more than she could chew’ and has only herself to blame for her inability to control a horse that behaved as a horse when it uncharacteristically galloped off.”
The panel noted, with a hint of sarcasm, that “the thrill of victory (and) the agony of defeat are emotions usually associated with sports, but often follow the culmination of a lawsuit. In this case, they arose from both.”
Ellyn Levinson et al v. Bert Owens et al.; Ct. App. Calif., 3d App. Dist.; 176 Cal. App. 4th 1534; 98 Cal. Rptr. 3d 779; 2009 Cal. App. LEXIS 1415; 8/26/09
Attorneys of record: (for plaintiffs) Hersh & Hersh, Nancy Hersh; Law Office of Daniel U. Smith and Daniel U. Smith. (for defendants) Hayes Davis Bonino Ellingson McLay & Scott, Mark G. Bonino, Miya R. Peard; Maire & Beasley, Wayne H. Maire and Patrick L. Deedon.


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