Plath v. Palo Mar Stables CA1/2

Filed 9/30/20 Plath v. Palo Mar Stables CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
SHELLY PLATH,
Plaintiff and Appellant, A159435
v. (San Mateo County
PALO MAR STABLES, INC., Super. Ct. No. 17CIV04843)
Defendant and Respondent.
Plaintiff Shelly Plath was visiting a friend at defendant Palo Mar
Stables (Palo Mar) one evening preparing to help her feed some horses. Her
friend’s horse, outside its stall and untethered, was in the barn when Plath
entered. Another person who boarded a horse at Palo Mar drove up and
released her dog outside the barn, the barking spooked the loose horse and
the horse stepped on Plath’s foot and kicked her, causing serious injuries.
Plath sued Palo Mar under a theory of premises liability. Palo Mar
moved for summary judgment, asserting the affirmative defense of primary
assumption of risk barred Plath’s suit. Palo Mar established as a matter of
law that the defense of primary assumption of risk applies. As the moving
party on summary judgment, Palo Mar also bore the burden to establish that
it did not increase the inherent risks of tending to horses in a self-care stable.
We conclude it met its burden to show the risk of being kicked or stepped on
1
by an untethered horse is an inherent part of the risk of tending to horses at
a self-care stable and that failure to reduce that risk by monitoring boarders
to ensure horses were tethered at all times did not unreasonably increase
that risk. However, we conclude that Plath did demonstrate there were
triable issues of material fact as to whether Palo Mar effectively allowed
unleashed dogs on the property despite its contrary policy and by doing so
unreasonably increase the risk beyond that inherent in caring for horses at a
self-care stable.
We therefore reverse the trial court’s grant of summary judgment and
judgment in favor of Palo Mar.
BACKGROUND
I.
The Complaint
Plath sued Palo Mar under a theory of premises liability. She also sued
the owner of the horse (Robin Howland) and the owner of the dog who
spooked the horse (Maria Medeiros) claiming both were negligent, but the
claims against them are not at issue in this appeal.
In her complaint, Plath alleged the following facts. Palo Mar’s business
was the housing and quartering of horses in exchange for a monthly fee or
rental. Palo Mar had rules that were visibly posted around the premises,
including a rule prohibiting horse owners from allowing their horses to be out
of their stalls without being under constant supervision and a rule requiring
dogs to be on leash, under control and not loose on the premises. Howland1
and Medeiros were aware of these rules but violated them, in Howland’s case,
by allowing her horse, Valentino, to walk around freely outside his stable or
The complaint refers to defendant Robin Howland as “Robin
1
Glamma” or “Glamma.”
2
corral without supervision, and in Medeiros’s case, by allowing her dog,
Laika, to run around freely without a leash and out of control.
Plath alleged that defendant Palo Mar was in control of the stable
premises and aware that Howland and Medeiros were in the habit of
violating the rules, and continued to allow them to do so. As a result, Plath
alleged, she was injured on October 25, 2014, when Laika was unleashed on
the premises and ran up to Valentino, who was out of her quarters and
unsupervised and who, having been thus frightened and spooked, kicked
about wildly and injured Plath. Plath’s injuries were the result of Palo Mar’s
“failure to prevent and restrict” Medeiros from allowing Laika to run around
freely and failure to restrict Howland from allowing Valentino to leave her
quarters and move about the premises unsupervised.
II.
The Proceedings and Summary Judgment
Palo Mar moved for summary judgment on three grounds: (1) primary
assumption of the risk barred Plath’s case, (2) Palo Mar did not breach a duty
of reasonable care owed to Plath, and (3) there were no unsafe conditions at
the stables when the incident occurred.
Palo Mar established the following material facts were undisputed. On
the evening of October 25, 2015, Plath came to Palo Mar to visit with
Howland and help her feed some of the horses. Howland owned Valentino, a
horse she boarded at Palo Mar. When Plath arrived, Valentino was in the
barn, walking around untethered. Plath loaded a wheelbarrow with hay and
was walking it back to feed horses when she saw Valentino coming toward
her in the enclosed barn. Medeiros, who also boarded a horse at Palo Mar,
pulled up near the barn in her vehicle and released her dog, Laika. Plath put
the wheelbarrow down and focused on Valentino as Laika barked. Valentino
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stepped on Plath’s foot and, as Plath tried to pull away, kicked her, causing
her injury.
Palo Mar was a self-care stables, where horse owners were entirely
responsible for their horses’ care. Palo Mar had a no-dogs policy, and signs
were posted on the property so indicating. Palo Mar’s owner would
sometimes ask that dogs be restrained on the property. Palo Mar’s owner
had told Howland to keep her horse contained either in the stalls or on a lead
rope and halter. Palo Mar’s owner, Theodore Vlahos, who walked the
property every day, was not aware of Valentino having injured anyone else
prior to October 25, 2015, or of any incidents similar to the one in which
Plath was injured.
Palo Mar also established as undisputed a number of facts concerning
Plath, the materiality of which Plath disputed. These include that Plath had
previously lived in an apartment at Palo Mar for about eight months, had
significant experience with horses starting when she was very young, was
aware that horses can be spooked by dogs and that Laika was rarely kept on
leash, was familiar with Valentino and had observed him on prior occasions
loose in the stables, and believed Valentino had kicked previous farriers and
another boarder.2
In opposition to Palo Mar’s motion, Plath offered the declaration of
Timothy O’Byrne as an expert in horse handling and safety. O’Byrne
declared that “Standard Operating Procedures between equine and human
2 We agree with Plath that her subjective knowledge of the risks
associated with horses is not directly pertinent to the analysis of whether the
primary assumption of the risk doctrine applies. (See Avila v. Citrus
Community College Dist. (2006) 38 Cal. 4th 148, 161.) Palo Mar does not
claim otherwise on appeal. Some of these facts are tangentially relevant
background information and shall be considered for that limited purpose.
4
interactions” generally call for horses to be tethered or under the control of a
person at all times because a “loose horse . . . could easily result in a
foreseeable injury to those nearby.” O’Byrne also noted that “the restraint of
dogs on an equine facility is a common thread of mitigating the risk of injury”
because dogs can be “a source of stress to some equines.” The declaration
concluded that “any astute equine facility manager will be aware of these . . .
[Standard Operating Procedures] and regulate the interactions in all areas of
the facility.” O’Byrne provided no opinions about Palo Mar’s operations.
Plath’s opposition also asserted additional facts, including that there
was no supervisor at Palo Mar to make sure rules were being followed and
the stables were being run safely, that Palo Mar was aware that Valentino
walked around the stables without a halter or bridle and permitted that, that
Palo Mar’s owner once told Plath he did not want dogs on the property
because he felt they could unsettle the horses, and that the owner told Plath
that Medeiros brought her dog to Palo Mar and he was not happy that she
did not keep him on a leash.
Plath argued that her subjective knowledge and awareness of potential
danger was irrelevant under the primary assumption of risk doctrine and
that Palo Mar had a duty under general premises liability principles to “not
maintain the premises negligently.” She also argued that there were
material facts in dispute regarding whether Howland was an employee of
Palo Mar rendering it liable under respondeat superior.
The trial court granted Palo Mar’s motion for summary judgment and
entered judgment on Plath’s claim against it.
Plath timely appealed.
5
DISCUSSION
I.
The Court Erred In Granting Palo Mar’s Motion for Summary
Judgment.
A. Legal Standards
Appellate courts review a motion for summary judgment de novo.
(Shin v. Ahn (2007) 42 Cal. 4th 482, 499 (Shin).) Code of Civil Procedure
section 437c, subdivision (c), authorizes courts to grant the motion if “there is
no triable issue as to any material fact and . . . the moving party is entitled to
a judgment as a matter of law.” The moving party bears the burden of
establishing both, and courts review the record in the light most favorable to
the non-moving party. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th
826, 843.) A defendant moving for summary judgment meets its burden if it
demonstrates it has a “complete defense to the cause of action.” (Code Civ.
Proc., § 473c, subd. (p)(2).) The burden then shifts to plaintiff to show that “a
triable issue of one or more material facts exists” as to that defense. (Ibid.)
The primary assumption of risk doctrine “embodies a legal conclusion
that there is ‘no duty’ on the part of the defendant to protect the plaintiff
from a particular risk.” (Knight v. Jewett (1992) 3 Cal. 4th 296, 308
(Knight).)3 “ ‘Although persons generally owe a duty of due care not to cause
an unreasonable risk of harm to others (Civ. Code, § 1714, subd. (a)), some
activities—and, specifically, many sports—are inherently dangerous.
Imposing a duty to mitigate those inherent dangers could alter the nature of
the activity or inhibit vigorous participation.’ [Citation.] The primary
assumption of risk doctrine, a rule of limited duty, developed to avoid such a
3 Knight was a plurality opinion. However, our high court has since
reaffirmed its essential holdings on many occasions. (See, e.g., Shin, supra,
42 Cal.4th at p. 491.)
6
chilling effect.” (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal. 4th 1148, 1154
(Nalwa).)
Application of the primary assumption of risk doctrine does not turn on
the reasonableness of the plaintiff’s conduct or the plaintiff’s subjective
intent. (Knight, supra, 3 Cal. 4th at pp. 308, 313). Rather, it turns on “the
nature of the activity . . . and the relationship of the defendant and the
plaintiff to that activity.” (Id. at p. 309.) “The relationship of the parties to
each other is also a consideration.” (Hamilton v. Martinelli & Associates
(2003) 110 Cal. App. 4th 1012, 1021.)
“With respect to the nature of the activity, the doctrine of primary
assumption of the risk applies ‘where “conditions or conduct that otherwise
might be viewed as dangerous often are an integral part of the sport [or
activity] itself.” [Citation.]’ [Citation.] ‘In these types of activities, the
integral conditions of the sport or the inherent risks of careless conduct by
others render the possibility of injury obvious, and negate the duty of care
usually owed by the defendant for those particular risks of harm. [Citation.]
A duty imposed in those situations would significantly change the very
purpose or nature of the activity. “The overriding consideration in the
application of primary assumption of risk is to avoid imposing a duty which
might chill vigorous participation in the implicated activity and thereby alter
its fundamental nature.” ’ ” (Rostai v. Neste Enterprises (2006)
138 Cal. App. 4th 326, 332–333.) “[T]he question of the existence and scope of
a defendant’s duty of care is a legal question which depends on the nature of
the sport or activity in question and on the parties’ general relationship to
the activity, and is an issue to be decided by the court, rather than the jury.”
(Knight, supra, 3 Cal.4th at p. 313.) “ ‘Duty, being a question of law, is
7
particularly amenable to resolution by summary judgment.’ ” (Nalwa, supra,
55 Cal.4th at p. 1154.)
Again, “[t]he primary assumption of risk doctrine rests on a
straightforward policy foundation: the need to avoid chilling vigorous
participation in or sponsorship of recreational activities by imposing a tort
duty to eliminate or reduce the risks of harm inherent in those activities. It
operates on the premise that imposing such a legal duty ‘would work a basic
alteration—or cause abandonment’ of the activity.” (Nalwa, supra, 55
Cal.4th at p. 1156.) Our high court has instructed that “[t]he doctrine’s
parameters should be drawn according to that goal.” (Id. at p. 1157.) The
“primary assumption of risk doctrine is not limited to activities classified as
sports, but applies as well to other recreational activities ‘involving an
inherent risk of injury to voluntary participants . . . where the risk cannot be
eliminated without altering the fundamental nature of the activity.’ ” (Id. at
p. 1156.)
“Primary assumption of risk does not provide absolute immunity.”
(Griffin v. The Haunted Hotel, Inc. (2015) 242 Cal. App. 4th 490, 499.) “A
participant and an owner/operator still owe certain duties of care. Such
duties vary according to the role played by a particular defendant involved in
the activity.” (Ibid.) Owners and operators of recreational facilities owe a
limited duty “not to unreasonably increase the risk of injury over and above
that inherent in” the activity. (Nalwa, supra, 55 Cal.4th at p. 1152.)
Alternately phrased, “operators, sponsors and instructors in recreational
activities posing inherent risks of injury have no duty to eliminate those
risks, but do owe participants the duty not to unreasonably increase the risks
of injury beyond those inherent in the activity.” (Id. at p. 1162.)
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Courts deny summary judgment when the plaintiff shows an issue of
material fact concerning whether the defendant increased the risks beyond
those inherent in the activity. (E.g., Cohen v. Five Brooks Stable (2008)
159 Cal. App. 4th 1476, 1499 [triable issue whether trail guide recklessly
increased risk of trail ride by unexpectedly provoking horses to suddenly
jump from walk to canter or gallop]; Shin, supra, 42 Cal.App.4th at p. 500
[questions of fact regarding whether golfer acted so recklessly as to be totally
outside range of ordinary activity involved in sport of golfing]; Kahn v. East
Side Union High School Dist. (2003) 31 Cal. 4th 990, 1018 [triable issue
whether swim coach engaged in conduct totally outside the range of ordinary
activity in coaching sport of competitive swimming].)
B. Palo Mar Established as a Matter of Law that Primary
Assumption of Risk Applies.
Primary assumption of risk bars recovery for “injuries from physical
recreation, whether in sports or nonsport activities.” (Nalwa, supra,
55 Cal.4th at p. 1157.) In deciding whether to apply the doctrine, courts must
determine a defendant’s duty, which “depends heavily on the nature of the
[activity] itself,” and “defendant’s role in, or relationship to” the activity.
(Knight, supra, 3 Cal.4th at p. 317.) Palo Mar established, in both the trial
court and its respondent’s brief, that both factors, as well as the doctrine’s
policy foundation, support its application here.
1. The Nature of the Activity Supports Application of
Primary Assumption of Risk.
The facts concerning the activity Plath was engaged in are undisputed.
Nonetheless, each party accuses the other of mischaracterizing Plath’s
activity at the time of injury. Plath argues she was merely “walking in the
stables” when Valentino kicked her, while Palo Mar describes her activity as
“tending to horses” and beginning to feed them. It is undisputed that Plath
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was at the stables to help Howland feed horses and that she was inside the
barn pushing a wheelbarrow of hay for that purpose when Medeiros let Laika
out of her car and she began barking. It was also undisputed that Plath put
the wheelbarrow down when Laika began barking but remained in the barn
“the whole time.”
Plath insists she was not “ ‘intermingling with horses’ ” or “ ‘caring for
them’ ” and that she was “merely walking . . . on her way to feed horses.”
(Italics omitted.) Plath cannot narrow the court’s attention to a single
moment to prevent consideration of all the facts shown by the evidence. She
went to the stables to help Howland feed horses, she was “helping [Howland]
feed and put hey [sic] for the horses,” she was in the small barn where
Howland’s horse was untethered and “just walking around,” she had been in
the barn for about 15 or 20 minutes before the accident occurred, and she had
loaded the wheelbarrow with hay for the horses to eat. She was taking the
wheelbarrow toward the horses to bring the hay to them when the accident
happened. Specifically, she saw headlights, heard a car door slam, saw
Medeiros’s dog walking toward the barn and barking, saw “the horse was
coming my direction,” “set the wheelbarrow down” “and the next thing I
knew, I got my foot stepped on and got kicked.” In short, Plath was engaged
in an activity that involved close proximity and physical interaction with
horses in a confined space.
Interacting with horses, especially inside a stable or barn, is inherently
risky. Many California courts recognize the inherent dangers of horses due
to their size and unpredictability. The court in Shelly v. Stepp (1998)
62 Cal. App. 4th 1288, 1295, concluded that “[i]t is not unusual for a horse to
come to a sudden stop, rear up, or sidestep.” A spooked horse is so
commonplace that courts refuse to impose liability “on purveyors of horse
10
rides . . . when a horse ‘acts’ as a horse.” (Harrold v. Rolling J Ranch (1993)
19 Cal. App. 4th 578, 589 (Rolling J Ranch); see also Levinson v. Owens (2009)
176 Cal. App. 4th 1534, 1551.) As the court in Rolling J. Ranch observed, the
risks associated with horseback riding are many. “A horse can stumble or
rear or suddenly break into a gallop, any of which may throw the rider.”
(Rolling J Ranch, at p. 587.) It may “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 . . . .” (Id. at p. 588.)
O’Byrne, Plath’s expert witness, described similar risks that exist in any
interaction with a horse. “[T]he potential risk of injury to humans during
interaction with a mature equine is significant, due to . . . an 8-1 weight ratio
(1500 lbs v. 190 lbs [sic]); relatively high body mass center of gravity; and
superior speed/power.” Any horse may “at will and without warning, react to
a perceived threat or stressor by choosing either the flight or fight response.”
Because of these inherent dangers, courts have routinely applied the primary
assumption of risk doctrine to cases where plaintiffs were injured while
horseback riding. (See Haberlin v. Peninsula Celebration Assn. (1957) 156
Cal. App. 2d 404, 408; Levinson v. Owens, supra, 176 Cal.App.4th at p. 1551;
Swigart v. Bruno (2017) 13 Cal. App. 5th 529, 537.) And the courts have
applied the doctrine in cases involving other animals that pose risks of injury,
including dogs, calves and sharks. (E.g., Priebe v. Nelson (2006) 39 Cal. 4th
1112, 1120–1124 [kennel technician injured by dog bite while walking and
caring for dog boarded at kennel]; Domenghini v. Evans (1998) 61
Cal. App. 4th 118, 122 (Domenghini) [rancher injured by calf kicking and
headbutting while attempting to restrain him during cattle roundup]; Nelson
v. Hall (1985) 165 Cal. App. 3d 709, 711, 714–715 [veterinary assistant injured
by dog while assisting in its treatment]); Rosenbloom v. Hanour Corp. (1998)
11
66 Cal. App. 4th 1477, 1480–1481 [shark handler bitten while trying to move
shark from aquarium].)
Plath attempts to distinguish the cases involving horseback riding,
claiming she “was not riding [a horse] at all, she wasn’t even touching a horse
when she was kicked by [a] freely roaming horse spooked by a loose dog while
she was merely walking in a stable.” We are not persuaded. We agree with
the trial court that “tending to horses roaming freely around a stable” is
sufficiently analogous to horseback riding to merit similar treatment because
it presents the same or similar inherent risks.
Courts consistently hold that primary assumption of risk encompasses
physical activity “ ‘involving an inherent risk of injury to voluntary
participants . . . where the risk cannot be eliminated without altering the
fundamental nature of the activity.’ ” (Nalwa, supra, 55 Cal.4th at p. 1163,
citing Beninati v. Black Rock City, LLC (2009) 175 Cal. App. 4th 650, 658.)
The risk of injury that comes with being near horses, which are
unpredictable, prone to spooking, sensitive to noise and far stronger and
heavier than humans, cannot be eliminated except by avoiding horses
altogether. “Whereas the inherent risks of horseback riding are being bucked
or thrown by the horse,” the trial court observed, “the inherent risk of tending
to horses is being kicked or stomped.” Indeed, some of the factors identified
by Plath’s expert—a horse’s weight, speed, power and potential “at will and
without warning, [to] react to a perceived threat”—are in play both for those
who ride horses and for those on the ground who come into close proximity to
horses, particularly where, as here, the person and horse are in a confined
space. As the trial court recognized, a horse who, when spooked, suddenly
steps on the foot of or kicks a person standing near it in an enclosed space is
no less “behaving as a horse” than one that rears up and throws or tramples a
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rider. In short, the nature of the activity here supports application of the
primary assumption of risk doctrine.
2. The Relationship of the Parties to the Activity and the
Policy Foundation of Primary Assumption of Risk
Support Its Application Here.
Plath argues that applying primary assumption of risk to these facts
works an “unwarranted and unjustified expansion of the doctrine of primary
assumption of risk.” We disagree.
First, we note that plaintiff was a volunteer. She was not required to
participate in the feeding of the horses but rather chose to do so, perhaps
because of her friendship with Howland or simply because she enjoyed
engaging with horses.4 Moreover, she had no relationship with Palo Mar at
the time of the incident, contractual or otherwise.
Second, Palo Mar operated what was described as a “selfcare” stable, at
which owners board horses but care for their horses themselves. Palo Mar
did not offer or provide any care to the horses boarded there. The owner
walked the property daily, but there was no supervisor on site to enforce
rules and ensure safety.
In regard to plaintiff’s relationship to the activity, we find this case
analogous to a Second District case applying the primary assumption of risk
doctrine to bar the claim of a rancher injured by a calf while participating in
a cattle roundup. (See Domenghini, supra, 61 Cal. App. 4th 118.) The
roundup was an annual event to brand, castrate, dehorn and vaccinate
calves, some of which belonged to the plaintiff and some to the defendants.
(Id. at p. 120.) The plaintiff rancher and defendants had in the past worked
4 It was undisputed that Plath was an experienced equestrian who had
owned and ridden horses for much of her life. She had lived at an apartment
on the Palo Mar property for seven or eight months during the year leading
up to the incident, though she apparently did not board a horse there.
13
together, undertaking these activities with respect to the calves owned by
both. (Ibid.) The plaintiff was not employed by the defendants; he and they
both ran cattle on the same land. (Id. at pp. 120–121.) The court concluded
it was “ ‘classic situation where a defendant’s ordinary duty of care is negated
due to the nature of the activity and the relationship of the defendant to the
plaintiff.’ ” (Id. at p. 121.)
The rancher argued the defendants had a duty to employ a safer
method of restraining the calves, such as a mechanical chute, rather than
using the traditional method in which horsemen rope the calves and others
throw them to the ground. (See Domenghini, supra, 61 Cal.App.4th at
pp. 120, 122.) The court disagreed, observing, “The activity at issue here is
an old-fashioned cattle roundup using horsemen and ropes, not mechanical
chutes. Kicking and headbutting are inherent risks of participation in this
activity. Appellant voluntarily agreed to participate in this activity.
Whether similar risks are present at cattle roundups using mechanical
chutes is beside the point.” (Id. at p. 122.)
Like the rancher who participated in the roundup in Domenghini, Plath
voluntarily participated in the activity that led to her injury. She went to
Palo Mar, a self-care stables, to help Howland, the owner of a horse boarded
there, feed some of the horses. As Plath’s own expert observed, “common
areas of an equine facility . . . are known to be a hub of activity involving free
movement of patrons, their horses as well as approved guests and pets.”
Further, as her expert also acknowledged, horses are prone to being spooked
and acting out in response. They may “at will and without warning, react to
a perceived threat or stressor by choosing either the flight or fight response.”
Being kicked, stepped on, or knocked down by a horse who has been spooked
are risks inherent in caring for horses and simply being in close physical
14
proximity to them. Plath voluntarily entered the barn and came into close
proximity to the horses at Palo Mar, in particular Valentino, who was
untethered and not in his stall. By assisting Howland in feeding the horses,
she assumed the obvious risks associated with caring for fully grown equines.
She could, in theory, have gone to a full-service stable where the horses
would not need to be fed by their owners and where interactions between
visitors and horses might have been more closely monitored. But like a cattle
roundup using chutes, this would have been a very different activity.
Regarding Palo Mar’s relationship to the activity of tending the horses,
it is significant that Palo Mar was a self-care stables at which boarders cared
for their own horses. Palo Mar boarded horses but did not provide any care.
There was no supervisor on site to enforce rules and ensure safety. It was
this type of establishment, not a full-board stable with more extensive
services, that Plath chose to visit.
Applying the primary assumption of risk doctrine here also aligns with
and supports the doctrine’s policy foundation. The purpose of primary
assumption of risk is to avoid chilling the sponsorship of recreational
activities. “[B]y imposing a tort duty to eliminate or reduce the risks of harm
inherent in those activities,” courts risk fundamentally altering or “ ‘caus[ing]
abandonment’ ” of the activity. (Nalwa, supra, 55 Cal.4th at p. 1156.) The
California Supreme Court reasoned that “[a]llowing voluntary participants in
an active recreational pursuit to sue other participants or sponsors for failing
to eliminate or mitigate the activity’s inherent risks would threaten the
activity’s very existence and nature.” (Id. at p. 1157.) This policy foundation
should determine the “doctrine’s parameters.” (Ibid.)
Although the doctrine originated in the context of sporting activities,
courts have since applied it to an array of activities. (Nalwa, supra,
15
55 Cal.4th at p. 1156.) Some activities are obviously recreational, for
example, skateboarding (Calhoon v. Lewis (2000) 81 Cal. App. 4th 108, 115),
group motorcycle rides (Amezcua v. Los Angeles Harley-Davidson, Inc. (2011)
200 Cal. App. 4th 217, 231–232), off-roading (Distefano v. Forester (2001)
85 Cal. App. 4th 1249, 1254), riding an inner tube pulled by a motor boat
(Record v. Reason (1999) 73 Cal. App. 4th 472, 482), participating in a river
rafting trip (Ferrari v. Grand Canyon Dories (1995) 32 Cal. App. 4th 248, 257),
and riding in a bumper car at an amusement park (Nalwa, at p. 1160).
But the doctrine has been applied outside that context. For instance,
courts have applied primary assumption of risk to takedown maneuvers
during a peace officer training class covering arrest and control methods
(Saville v. Sierra College (2005) 133 Cal. App. 4th 857, 863, 866–870); ground
fighting maneuvers with a fellow student as part of class for probation
officers (Hamilton v. Martinelli and Associates, supra, 110 Cal.App.4th at
pp. 1021–1024); and back country skiing with an instructor while candidates
for voluntary ski patrol (Kane v. National Ski Patrol System, Inc. (2001)
88 Cal. App. 4th 204, 206, 209–214). And courts have applied the rule to
persons engaged in the handling of animals. (See p. 11, ante.)
At minimum, the doctrine applies to any activity that is “done for
enjoyment or thrill, requires physical exertion as well as elements of skill,
and involves a challenge containing a potential risk of injury.” (Record v.
Reason, supra, 73 Cal.App.4th at p. 482; see Beninati v. Black Rock City,
LLC, supra, 175 Cal.App.4th at p. 658 [attending Burning Man festival and
being burned participating in ritual burning of eponymous effigy]; Grotheer v.
Escape Adventures, Inc. (2017) 14 Cal. App. 5th 1283, 1298 [riding in hot air
balloon]: Griffin v. The Haunted Hotel, supra, 242 Cal.App.4th at p. 500
[participant injured while running away due to fright during Halloween
16
haunted house attraction].) Tending to horses, like caring for dogs or pets of
other kinds, is recreational in the sense that it is an activity done by some
horse lovers for enjoyment and for others as a labor of love and necessary
part of the experience of owning a horse. As Plath testified, she had “been
around horses all my life.” “One of the things that I enjoy doing is feeding the
horses carrots or, you know, putting their food in their pens and helping
[Howland]. Valentino was fine with me doing that, and he would let me pet
him.” Like other recreational activities, caring for horses is “not essential to
daily life”; for some, it can be “valuable to one’s health and spirit”; and it is
“voluntary in a manner employment and daily transportation are not.”
(Nalwa, supra, 55 Cal.4th at p. 1157.)
Applying the primary assumption of risk doctrine to the activity of
tending horses at a stable would serve the doctrine’s purpose of protecting
recreational activities, including both interacting with horses and horseback
riding, from the chilling effect of liability. To impose liability on proprietors
of self-care boarding facilities for injuries caused by horses would tend to
increase the costs and drive up the price of boarding with the result that
fewer equestrians and horse lovers would be able to afford to own, ride and
care for horses. As Rolling J Ranch, supra, 19 Cal.App.4th at page 588,
stated, “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.” A
similar proposition applies to boarding stables.
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For all of these reasons, we conclude that the primary assumption of
risk doctrine applies to the activity of tending horses at a self-care stable.
C. There Is a Triable Issue as to Whether Palo Mar
Unreasonably Increased the Inherent Risks of Caring for
Horses Stabled at Its Premises.
Having determined that tending horses at a stable qualifies for
application of the primary assumption of risk doctrine, and that Palo Mar
thus is not subject the general duty of care as to injuries resulting from the
risks inherent in that activity, we must still determine whether Palo Mar did
anything to increase the risks inherent in that activity.5 The duty not to
increase the risk is a limited one. “Our later decisions establish that under
the primary assumption of risk doctrine, operators, sponsors and instructors
in recreational activities posing inherent risks of injury have no duty to
eliminate those risks, but do owe participants the duty not to unreasonably
increase the risks of injury beyond those inherent in the activity.” (Nalwa,
supra, 55 Cal.4th at p. 1162.) The plaintiff in Nalwa argued that the
operator of a bumper car ride owed her “a duty to take reasonable measures
to eliminate or minimize head-on bumping, which she characterize[d] as
beyond the inherent risks of a bumper car ride.” (Id. at p. 1163.) The court
disagreed, observing, “While the risks of injury from bumping bumper cars
are generally low, a minor injury could occur from bumping at any angle. No
qualitative distinction exists among the possible angles of collision, and hence
no principled basis exists to impose a duty of care uniquely for 180-degree
5 In the context of primary assumption of risk, the duty not to increase
the risks inherent in the activity does not translate into a duty to decrease
those risks. (Avila v. Citrus Community College District (2006) 38 Cal. 4th
148, 166 [while provision of umpires might have reduced risk of pitcher being
hit by retaliatory beanball, school district had no duty to reduce that risk].)
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collisions. And while plaintiff points to defendant’s efforts to discourage
head-on bumping, such voluntary efforts at minimizing risk do not
demonstrate defendant bore a legal duty to do so; not every rule imposed by
an organizer or agreed to by participants in a recreational activity reflects a
legal duty enforceable in tort.” (Id. at p. 1163.) The court further rejected the
plaintiff’s assertion that the defendant’s operation of other bumper car rides
so as to channel the cars’ travel mainly in one direction establish[ed] a duty
to operate [the ride on which the plaintiff was injured] in the same manner.
The operator of a bumper car ride might violate its “duty to use due care not
to increase the risks to a participant over and above those inherent” in the
activity [citation] by failing to provide routine safety measures such as seat
belts, functioning bumpers and appropriate speed control, but does not do so
by failing to restrict the angle of bumping.” (Ibid.) In short, the court
concluded, “[t]he risk of injuries from bumping was inherent in the
[defendant’s] bumper car ride,” an activity that gives its mostly young
participants the opportunity to inflict and evade low-speed collisions from a
variety of angles.” (Id.)
From Nalwa, we draw two conclusions about the “increasing-the-risk”
exception to primary assumption of risk. First, the determination of which
risks are inherent in the activity, on which the scope of the duty turns, is a
question of law to be decided by the court. (See id.; Knight, supra, 3 Cal.4th
at p. 313 [“the question of the existence and scope of a defendant’s duty of
care is a legal question which depends on the nature of the sport or activity in
question and on the parties’ general relationship to the activity”]; Amezcua v.
Los Angeles Harley-Davidson, Inc. (2011) 200 Cal. App. 4th 217, 233.) Second,
the duty of an operator is a limited one. The relationship of operator of a
19
facility to a customer does not make “imposition of an ordinary negligence
duty appropriate.” (Nalwa, supra, 44 Cal. 4th 1148.)
Palo Mar contends the undisputed evidence shows it “did nothing to
increase the risks inherent in plaintiff’s activity and her presence on the
property.” That evidence consisted of the facts that it had a policy of not
allowing dogs on the property, the owner had posted signs and asked
boarders not to have their dogs on the property, and about 90 percent of the
boarders adhered to the policy. It also included evidence that the owner of
Palo Mar had told Howland to keep her horse contained either in the stalls or
on a lead rope and halter.
Plath contends her expert’s declaration opining that “no horse should
be allowed to wander freely in an equine facility environment, and dogs must
be under control at all times” raised triable issues of fact as to whether Palo
Mar increased the risk inherent in the activity of tending to the horses there,
“The determinant of duty, ‘inherent risk,’ is to be decided solely as a question
of law and based on the general characteristics of the sport activity and the
parties' relationship to it. This determination is necessarily reached from the
common knowledge of judges, and not the opinions of experts.” (Staten v.
Superior Court (1996) 45 Cal. App. 4th 1628, 1635.) However, Plath also
relied on deposition testimony regarding Palo Mar’s knowledge that Howland
did not consistently tether her horse and Medeiros did not follow the no-dog
policy or leash her dog. By pointing to her expert declaration, she implies
that Palo Mar should have been required to ensure the boarders kept their
horses tethered or in a stable at all times and that loose dogs were not
permitted on the property.
As to the first proposition regarding loose horses, we do not agree that
Plath raised a triable issue of fact. Self-care stables do not owe a general
20
duty of care to their customers or visitors who interact with the horses. They
owe a narrow duty not to increase the risks inherent in caring for the horses.
It is well established under the case law cited above that horses are
unpredictable and can be spooked by various sounds or sights and react by
bolting, bucking, charging, knocking down, stepping on, kicking, biting or
otherwise injuring persons standing in their vicinity is an inherent risk of
tending to horses in a stable. A horse can be spooked and bite or kick or step
on someone whether it, and the person tending it, are inside a stall or
outside, and even where a horse is tethered to a post or being led by a rope.
If the owner of the stable were required to monitor every movement of the
horses within the stable facility at all times, to ensure horses were always in
their stalls or tethered, it would change the nature of the activity of caring for
one’s own horse at a self-care stable into something quite different. The
recreational experience at a self-care stable includes caring for one’s own
horse, not having staff hired by the stable monitor the activities of boarders
with respect to their horses at all times. Indeed, Palo Mar’s contract
provided that boarders were responsible for their own horses and for their
horses’ actions. The fact that the owner of Palo Mar instructed Howland to
keep Valentino tethered or in a stall does not translate into a duty on its part
to eliminate the risk that she would not always adhere to that directive.
Further, imposing what would amount to strict liability for failure to
prevent boarders from violating such a directive would significantly alter the
operations of self-care boarding facilities and the activities of horse owners
who stable their horses at such facilities. The care provided to the horses by
their owners at such stables is a part of the experience of owning a horse.
Having staff on site full-time to “orchestrate” and “regulate” every movement
within and around the stables would alter the relationship between horses
21
and owners and significantly increase the costs of boarding. Making self-care
options less affordable or even unavailable would leave only more costly full-
service stables that fewer people could afford. The result would be precisely
that which primary assumption of risk is designed to avoid: fewer people
would be able to own, care for and ride their own horses. Public policy does
not support such a result. (See Rolling J. Ranch, supra, 19 Cal.App.4th at p.
588.)
As to the issue of dogs, however, we reach a somewhat different
conclusion. The presence of dogs would not seem to be inherent in the
activity of caring for a horse at a self-care stables or otherwise. Dogs, as
Plath’s expert opined, can increase the inherent activity of caring for horses
at a self-care stables because their presence increases the risk that a horse
will be spooked and injure someone. That risk, we conclude, is beyond the
risk inherent in simply caring for and being in close proximity with horses.
To require that dogs be restrained or prohibit their presence altogether would
not necessarily change the character of the activity of caring for horses at a
self-care stable.
Plath cited deposition testimony suggestingPalo Mar’s owner was
aware of unleashed dogs and did not enforce the leash policy. The evidence
was decidedly mixed. The owner testified that if he saw a dog on the
property loose chasing a cat or chicken or fighting with another dog, he would
ask the owner to restrain it or put it back in the car. Boarders and others
sometimes brought dogs to the property for a walk and he could not tell every
person who drove up and took a dog out for a walk on the property to leash
their dog “because there’s a lot of area.” He also testified that he was aware
that Medeiros’s dog was not on a leash but the dog did not run around;
rather, it followed her either alone or with her horse down to the ocean for a
22
walk. He never saw Medeiros’s dog on a leash. He told Medeiros that she
needed to keep her dog on a leash and was unhappy that she brought her dog
to the stables without keeping it on leash.
Plath testified that Valentino’s owner, Howland, kept two Pomeranians
at the stables, but the testimony does not indicate whether they were kept on
leashes. Another boarder testified that that there were dog walkers who
came by the stables and their dogs would sometimes run into the stables, and
that when she told the owner about that, he posted no-dog signs. That
witness testified she was allowed to bring her dog “as long as I had her with
me and tied.” In the “beginning,” she said, the stable owner allowed
Medeiros to bring her dog, “but after a while he said no more dogs . . .”
In short, the testimony about the stable’s dog policy and its
enforcement was all over the map. There was a dispute of fact as to whether
the owner was, in effect, permitting loose dogs on the property or instead
making reasonable efforts to ensure they were restrained. That factual
dispute presents a triable issue as to whether Palo Mar unreasonably
increased the risk beyond that inherent in caring for the horses at a self-care
stable.
II.
We Need Not Resolve Plath’s Other Arguments.
Since we reverse the grant of summary judgment on Plath’s premises
liability claim against Palo Mar, we need not reach her other arguments.
Nor need we address her claim that the trial court abused its discretion
in excluding part of her testimony as inadmissible hearsay, albeit for a
different reason. The part ruled inadmissible concerned testimony that Palo
Mar’s owner told her he did not want dogs on the property because they
would “unsettle the horses.” She claimed this created a dispute with Palo
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Mar’s assertion, based on the deposition testimony of its owner, that the
policy’s purpose was to avoid dog poop and dog fights on the property. The
exclusion of the testimony is inconsequential. The purpose of Palo Mar’s no-
dog policy has no bearing on an analysis of primary assumption of risk. The
material facts are those pertaining to the nature of Plath’s activity and the
relationship of Palo Mar and Plath to that activity, and whether Palo Mar
unreasonably increased the risks inherent in caring for the horses. The
intent of Palo Mar’s owner in adopting the policy sheds no light on any of
these issues.
DISPOSITION
The judgment in favor of Palo Mar is reversed. The costs of appeal are
awarded to appellant.
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_________________________
STEWART, J.
WE CONCUR:
_________________________
RICHMAN, Acting P. J.
_________________________
MILLER, J.
Plath v. Palo Mar Stables, Inc. (A159435)
25