Browne v. Foxfield Riding School CA2/6

Filed 8/14/23 Browne v. Foxfield Riding School CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
AVA BROWNE, a Minor, etc., 2d Civil Nos. B315743,
et al., B318304
(Super. Ct. No. 56-2017-
Plaintiffs and Appellants, 00499800-CU-PO-VTA)
(Ventura County)
v.
FOXFIELD RIDING SCHOOL
et al.,
Defendants and
Respondents.
Ava Browne, through her mother, Kelly Browne,1 sued
Foxfield Riding School and riding instructor Katelyn Puishys
(collectively, Defendants) for ordinary and gross negligence after
she was injured during a horseback riding accident. The trial
court granted Defendants’ motion for nonsuit as to ordinary
1 We refer to the Brownes by their first names to avoid
confusion. No disrespect is intended.
negligence, and a jury found in favor of Defendants on the gross
negligence claim. The court awarded costs to Defendants.
The Brownes appeal from the judgment and contend the
trial court erred when it: (1) granted partial nonsuit as to
ordinary negligence, (2) instructed the jury on gross negligence,
(3) made certain evidentiary rulings, (4) made cumulative errors,
and (5) awarded Defendants costs pursuant to Code of Civil
Procedure2 section 998. As we explain below, the trial court erred
in granting partial nonsuit on the ordinary negligence claim but
did not err with respect to its evidentiary rulings and instructing
the jury. We therefore affirm in part, reverse in part, and
remand for further proceedings.
FACTUAL AND PROCEDURAL HISTORY
Ava was 12 years old when Kelly enrolled her in Foxfield’s
summer sleepaway camp. Kelly completed and signed Ava’s
application. In the application, Kelly indicated Ava had prior
experience in horseback riding, including jumping crossrails. The
application also stated that Ava was a “Level 3” rider at Mill
Creek Riding School. A “Level 3” rider at Mill Creek would have
been taught how to “jump horses, with multiple jumps,” and how
to control a horse’s speed from walking slowly “all the way to
canter.” Such a rider would also have been introduced to bigger
and wider jumps.
In the application, Foxfield included the following release:
“I have sufficient knowledge of horses to understand
their unpredictability and potentially dangerous
character in general[,] and I understand that the use,
2 Further unspecified statutory references are to the Code
of Civil Procedure.
2
handling[,] and riding of a horse ALWAYS involves
risk of bodily injury to anyone who handles or rides
horses, as well as the risk of damaging the property of
others. I understand that any horse, irrespective of its
training and usual past behavior and characteristics,
may act or react unpredictably at times, based upon
instinct or fright, which likewise is an inherent risk
assumed by one who handles/rides horses. I expressly
assume such risk and hereby waive any claims that I
might have against Foxfield Riding School, its
[t]eachers, [c]ounselors[,] and [t]rainers, on behalf of
the above[-]mentioned camper or myself. I agree to
pay all doctor or hospital fees if the child is injured
while staying at Foxfield.”
Foxfield evaluated Ava on the first day of camp and placed
her in the group with the least advanced riders. On the first and
second days of instruction, Ava rode a horse named Polly in an
enclosed dressage ring. Ava felt comfortable riding Polly.
On the third day of instruction, Foxfield assigned Ava a
horse named Sonny, and Puishys taught the lesson. Ava rode
Sonny in the dressage ring for about an hour and practiced some
jumps. The group then went into the cross-country field. Ava
completed her first jump with Sonny in the field, but fell off on
her second jump, the “log jump.” Sonny bucked during the jump,
and Ava was thrown off and landed on her back. Puishys
continued with the riding lesson while Ava walked back to the
cabins by herself.
Ava called Kelly from camp, and Kelly took her home. The
next day, Ava had an X-ray done on her neck. She suffered a
spinal injury requiring emergency surgery.
The Brownes sued Defendants for negligence/gross
negligence. They alleged Defendants breached their duty of care
3
by assigning Ava to ride Sonny, a horse “unfit and unsafe for
riding by a beginning rider like Ava.” They also alleged
Defendants failed to adequately instruct Ava before requiring her
to ride in the cross-country field, which was beyond her abilities.
At trial, Ava testified she was nervous about riding Sonny.
While riding in the dressage ring, she had difficulty controlling
Sonny and told Puishys she needed instructions. Puishys
“brushed it off.” Ava was also nervous about riding in the
cross-country field and told Puishys she could not do it. Puishys
told Ava to “face [her] fears.”
Another camper in Ava’s group testified that Ava was
having problems controlling Sonny right before the log jump. She
said that Sonny seemed to “want[] to go fast” and that he was
“hard to control.”
The Brownes also presented deposition testimony of
Foxfield’s owner, who testified that it was not typical for dressage
ring riders to be taken into the cross-country field on their third
day of instruction.
Phyllis Pipolo, Ava’s previous riding instructor, testified
that Ava’s balance was “slightly ahead of the center of gravity”
and “slightly out of the rhythm of the horse.” She questioned
Ava’s stability and said Ava had issues with “a lack of control.”
The Brownes’ expert witness, Linda Rubio, inspected
Foxfield’s facilities, observed Foxfield’s horses, interviewed the
Brownes, reviewed deposition testimony, and watched videos of
Ava’s riding. Rubio opined Ava was a beginning level rider and
that Sonny was not a suitable horse because he was “an advanced
horse.” She also opined the lesson plan on the day of the accident
with Ava riding Sonny was not an appropriate plan for Ava
because it “increase[d] the risk over and above those inherent [in]
4
horseback riding.” Rubio said Ava should not have gone into the
cross-country field because it was “beyond her scope of
capability.” According to Rubio, Foxfield increased the risk of
Ava falling off the horse by putting her in the field and having
her attempt the log jump.
After the Brownes’ case-in-chief, Defendants moved for
nonsuit based on the primary assumption of risk doctrine and
Foxfield’s release of liability. The trial court granted the motion
as to the issue of ordinary negligence, but denied it as to gross
negligence. The court found that the signed release “was specific”
and “very broad.” It found the release “encompassed every one of
the activities that the plaintiff engaged in, including but not
limited to the activity of cross[-]country field jumping at the time
the injury occurred. [¶] So clearly, primary express assumption of
the risk has been established as a matter of law. There’s nothing
for the jury to resolve in that regard.”
The trial proceeded on the issue of gross negligence, and
the jury returned a verdict in favor of the Defendants. After
partially granting the Brownes’ motion to strike and tax costs,
the trial court awarded nearly $97,000 in costs to Defendants.
DISCUSSION
Partial nonsuit
The Brownes contend the trial court erred when it granted
a partial nonsuit as to ordinary negligence. They contend the
release did not “clearly and unambiguously” release claims
arising from Defendants’ negligent conduct, which increased the
inherent risks of horseback riding. Alternatively, they argue the
release was void for a lack of meeting of the minds. We agree the
trial court erred in interpreting the release and granting partial
nonsuit.
5
“ ‘A defendant is entitled to a nonsuit if the trial court
determines that, as a matter of law, the evidence presented by
plaintiff is insufficient to permit a jury to find in [their] favor.’
[Citation.] In determining the sufficiency of the evidence, the . . .
court must not weigh the evidence or consider the credibility of
the witnesses. Instead, it must interpret all of the evidence most
favorably to the plaintiff’s case and most strongly against the
defendant, and must resolve all presumptions, inferences,
conflicts, and doubts in favor of the plaintiff. If the plaintiff’s
claim is not supported by substantial evidence, then the
defendant is entitled to a judgment as a matter of law, justifying
the nonsuit.” (Saunders v. Taylor (1996) 42 Cal.App.4th 1538,
1541.) We review the trial court’s ruling on a nonsuit de novo.
(Id. at pp. 1541-1542.)
To prevail on a cause of action for ordinary negligence, a
plaintiff must prove the defendant owed them a legal duty,
breached that duty, and proximately caused their injury.
(Benedek v. PLC Santa Monica, LLC (2002) 104 Cal.App.4th
1351, 1356 (Benedek).) Although a defendant generally has a
duty “ ‘not to cause an unreasonable risk of harm to others
[citation], 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
chilling effect. [Citations.] Where the doctrine applies to a
recreational activity, operators, instructors[,] and participants in
the activity owe other participants only the duty not to act so as
to increase the risk of injury over that inherent in the activity.”
(Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154, italics
6
omitted; see also Kahn v. East Side Union High School Dist.
(2003) 31 Cal.4th 990, 1005-1006 [coach has duty to not increase
risk of harm inherent in learning a sport].) A written release
may exculpate a defendant by negating that duty. (Benedek, at p.
1356.)
“ ‘Contract principles apply when interpreting a release.’ ”
(Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1483
(Cohen).) Where, as here, the interpretation of a release does not
turn on the credibility of extrinsic evidence, “ ‘ “ ‘construction of
the instrument is a question of law . . . . It therefore follows that
we must independently determine whether the release in this
case negated the duty element of plaintiff[s’] cause[] of action.” ’ ”
(Ibid.)
The scope of a release is determined by its express
language. (Benedek, supra, 104 Cal.App.4th at p. 1357.) “The
express terms of the release must be applicable to the particular
negligence of the defendant, but every possible specific act of
negligence . . . need not be spelled out in the agreement.” (Ibid.)
“ ‘ “It is only necessary that the act of negligence, which results in
injury to the releasor, be reasonably related to the object or
purpose for which the release is given.” ’ ” (Ibid.)
To be effective, a “release ‘must be clear, unambiguous, and
explicit in expressing the intent of the subscribing parties.’ ”
(Benedek, supra, 104 Cal.App.4th at p. 1356.) Thus, where the
primary assumption of risk doctrine applies, the release must
clearly and unambiguously exempt the defendant from liability
from their own misconduct or negligent acts that increase the
risks inherent in the activity. (Cohen, supra, 159 Cal.App.4th at
p. 1488.) It must be sufficiently clear and explicit to “ ‘set forth to
an ordinary person untrained in the law that the intent and
7
effect of the document is to release . . . claims for [their] own
personal injuries and to indemnify the defendants from and
against liability to others [that] might occur in the future.’ ”
(Ibid.) “If an ambiguity as to the scope of the release exists, it
should normally be construed against the drafter.” (Benedek, at
p. 1357.)
The express language of the release here does not “clear[ly],
unambiguous[ly], and explicit[ly]” relieve Defendants of liability
resulting from their own negligence or for conduct that increased
the risks inherent in horseback riding. (Benedek, supra, 104
Cal.App.4th at p. 1356.) The release informed Kelly that the
“use, handling[,] and riding of a horse ALWAYS involves risk of
bodily injury to anyone who handles or rides horses” and that
“any horse . . . may act or react unpredictably at times, . . . which
likewise is an inherent risk assumed by one who handles/rides
horses.” By signing the release, Kelly “expressly assume[d] such
risk and . . . waive[d] any claims that [she] might have against”
Foxfield and its teachers. (Italics added.) But nothing in the
release mentions negligence, negligent acts, or misconduct by the
Defendants. Nor does the release inform an ordinary person
untrained in the law that it would apply to Defendants’ negligent
conduct or conduct that increases the risks inherent in horseback
riding. (See Cohen, supra, 159 Cal.App.4th at pp. 1488-1489.)
Rather, the only assumption of risk mentioned in the release
pertains to the inherent risks of handling or riding a horse.
The release does state that Kelly “waive[s] any claims that
[she] might have against [Defendants]” and that she “agree[s] to
pay all doctor or hospital fees” if Ava was injured at Foxfield.
But we do not read these statements in isolation. Instead, we
must interpret the release as a whole and its language in context,
8
avoiding a piecemeal, strict construction. (Civ. Code, § 1641;
Segal v. Silberstein (2007) 156 Cal.App.4th 627, 633.) Read in
context, the waiver language appears in the same sentence as the
releasee’s assumption of inherent risks. Thus, we interpret it to
encompass only those injuries resulting from the inherent risks of
riding or handling of horses, not injuries resulting from
Defendants’ alleged negligent acts.3 It is not a waiver of all
liability. (Cf. Benedek, supra, 104 Cal.App.4th at p. 1358 [release
of all liability where release clearly and explicitly stated that it
applied to “liability for any personal injuries suffered while on
[defendant’s] premises” (italics added)]; National & International
Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215
Cal.App.3d 934, 936 [release expressly provided that plaintiff was
“not to sue [defendants] . . . from any and all claims and liability
arising out of . . . ordinary negligence”].)
This case is like Cohen, supra, 159 Cal.App.4th 1476.
There, the plaintiff was injured when she fell off a horse during a
horseback ride. (Id. at p. 1480.) She then sued the defendants
for negligence for allegedly increasing the risk inherent in trail
riding when the guide accelerated the gait of the horses without
warning, causing her to lose control and fall off her horse. (Ibid.)
The defendants moved for summary judgment on the ground that
the plaintiff signed a release. (Id. at p. 1481.) The release
informed the plaintiff of the inherent risks of horseback riding,
3 Even if the waiver language were ambiguous, we would
construe such ambiguities against Foxfield, the drafter of the
release. (Benedek, supra, 104 Cal.App.4th at p. 1357; Civ. Code
§ 1654; see also Lund v. Bally’s Aerobic Plus, Inc. (2000) 78
Cal.App.4th 733, 738 [“release forms are to be strictly construed
against the defendant”].)
9
including that a horse will run or bolt uncontrollably without
warning. By signing the release, she agreed to “ ‘ assume
responsibility for the risks identified herein and those risks not
specifically identified.’ ” (Id. at pp. 1485-1486, italics omitted.)
The trial court granted summary judgment, finding the release
clearly expressed an agreement not to hold the defendants liable
for negligence. (Id. at p. 1482.)
The Court of Appeal reversed, concluding the trial court
erred in interpreting the release. (Cohen, supra, 159 Cal.App.4th
at p. 1487.) It explained that all the risks specifically described
in the release were ones inherent in horseback riding. (Id. at p.
1486.) The risk of injury caused by the defendants’ negligence
was not within the scope of the release because a release requires
“a high degree of clarity and specificity . . . in order to find that it
relieves a party from liability for its own negligence.” (Id. at p.
1488.) And “ ‘[n]othing in the [r]elease clearly, unambiguously,
and explicitly indicate[d] that it applie[d] to risks and dangers
attributable to [the defendants’] negligence or that of an
employee that may not be inherent in supervised recreational
trail riding. Nor [did] the [r]elease indicate that it cover[ed] any
and all injuries arising out of or connected with the use of [the
defendants’] facilities.’ ” (Id. at p. 1489, italics omitted.) The
same is true here.
Defendants rely on Eriksson v. Nunnink (2015) 233
Cal.App.4th 708 and Brown v. El Dorado Union High School
Dist. (2022) 76 Cal.App.5th 1003 (El Dorado), two cases where a
release in the recreational sports context was found to relieve the
defendants from liability for their negligent conduct. But these
cases are distinguishable. In Eriksson, the release between a
plaintiff (a horseback rider) and the defendant (trainer) expressly
10
stated that the “[r]ider agree[d] to hold [the trainer] . . .
completely harmless and not liable and release [her] from all
liability whatsoever, and AGREE[D] NOT TO SUE [her] on
account of or in connection with any claims, causes of action,
injuries, damages, costs[,] or expenses arising out of [the rider’s]
use of [the trainer’s] services . . . , including[,] without limitation,
those based on death . . . [or] bodily injury, . . . except if the
damages [were] caused by the direct, willful[,] and wanton
negligence of the [t]rainer.” (Ericksson, at p. 720.) The release
also stated that the “[r]ider agree[d] to indemnify [the trainer]
against, and hold her harmless from, any and all claims, causes
of action, damages, judgments, costs[,] or expenses . . . [that] in
any way [arose] from [the rider’s] use of [the trainer’s] services.”
(Ibid.) The Eriksson court held that this release “plainly
encompasse[d] liability for future negligence as well as any
previously committed torts,” with the only exception to damages
caused by gross negligence. (Id. at pp. 722-723.)
Similarly, in El Dorado, the language of the release
between a student athlete and a school district expressly
absolved the school district and its employees “from any and all
claims of liability arising out of their negligence, or any other act
or omission [that] cause[d] . . . illness, injury, death[,] or damages
of any nature in any way connected with the student’s
participation in the school[-]related activity.” (El Dorado, supra,
76 Cal.App.5th at p. 1010.) The court held that such language
provided an “unequivocal[] agree[ment] to assume the risk of
injuries caused by the negligent acts of the [d]istrict employees
. . . while [the student] played football.” (Id. at p. 1025.)
Unlike Ericksson and El Dorado, Foxfield’s written release
did not clearly and expressly apply to Defendants’ negligent
11
conduct, nor did it waive all liability. The only risks the Brownes
assumed was related to the inherent risks of horseback riding.
They did not assume liability attributable to Defendants’
negligence or conduct that increased the inherent risks in
horseback riding. Nonsuit should have been denied.4
At oral argument Defendants argued the trial court’s grant
of nonsuit on the ordinary negligence claim was harmless.
Because the jury found in their favor on the gross negligence
claim, Defendants posit, the jury necessarily rejected the
Brownes’ theory that Defendants “unreasonably increased the
risk to Ava over and above those already inherent in horseback
riding.” But the jury was only asked to render a verdict on gross
negligence, which requires “ ‘ “ ‘the want of even scant care or an
extreme departure from the ordinary standard of conduct.’ ” ’ ”
(County of San Diego v. Superior Court (2015) 242 Cal.App.4th
460, 474.) We do not know whether the jury would have found
for the Brownes on a claim that only required finding that
Defendants breached a legal duty that proximately caused Ava’s
injuries. We thus cannot say that the grant of nonsuit was
harmless.
4 Because we conclude the trial court erred in interpreting
the release, we need not address the alternative argument that
the release was void. And because we do not resolve that issue,
we deny the Brownes’ request for judicial notice as irrelevant to
our decision. (State Comp. Ins. Fund v. ReadyLink Healthcare,
Inc. (2020) 50 Cal.App.5th 422, 442.)
12
Jury instruction for gross negligence
The Brownes next contend the trial court prejudicially
erred when it denied their proposed modification to CACI 425.
We disagree.
CACI 425 states: “Gross negligence is the lack of any care
or an extreme departure from what a reasonably careful person
would do in the same situation to prevent harm to oneself or to
others. [¶] A person can be grossly negligent by acting or failing
to act.” The Brownes requested a modification to specify that “ ‘if
a defendant acts or fails to act in a manner which [sic]
substantially or unreasonably increases the risk of danger or
harm inherent in the sporting activity, such conduct constitutes
gross negligence if you find that said defendant’s act or failure to
act demonstrates the lack of any care or an extreme departure
from what a reasonably careful person would do in the same
situation to prevent harm to oneself or others.’ ” The trial court
denied the proposed modification and instructed the jury with
CACI 425, but allowed the Brownes to argue their expanded
definition of gross negligence during closing arguments.
“A party is entitled upon request to correct,
nonargumentative instructions on every theory of the case . . .
[that] is supported by substantial evidence. The trial court may
not force the litigant to rely on abstract generalities, but must
instruct in specific terms that relate the party’s theory to the
particular case.” (Soule v. General Motors Corp. (1994) 8 Cal.4th
548, 572 (Soule).) Where a civil jury instruction error is alleged,
reversal is only appropriate if after examination of the entire
cause, the “ ‘error complained of has resulted in a miscarriage of
justice.’ [Citation.]” (Id. at p. 580.) To assess prejudicial
instructional error, we evaluate: “(1) the state of the evidence, (2)
13
the effect of other instructions, (3) the effect of counsel’s
arguments, and (4) any indications by the jury itself that it was
misled.” (Id. at pp. 580-581.)
Here, even if the trial court erred in denying the modified
instruction, the Brownes do not show they were prejudiced.
During closing argument, the Brownes argued that Defendants
were grossly negligent when they “unreasonably increased the
risk to Ava over and above those already inherent in horseback
riding.” The Brownes presented evidence to support this theory
and summarized the evidence during closing argument. They
also argued the jury could find Defendants grossly negligent if
the evidence proved Defendants’ conduct, including the failure to
act, “was a substantial factor in causing harm to Ava”
irrespective of the release.
The trial court also clarified the gross negligence standard
by instructing the jury that an “act or omission by the defendants
[that] substantially or unreasonably increases the risk inherent
in horseback riding and jumping can be gross negligence if it
meets the definition of gross negligence. That is, it has to have
amounted to . . . the want of any care or an extreme departure
from conduct that would otherwise be reasonable.” The Brownes
point to no other instructions that would have affected the jury’s
understanding of gross negligence. Furthermore, there was no
indication by the jury that it was confused or misled. (Soule,
supra, 8 Cal.4th at pp. 580-581.) Thus, the court did not
prejudicially err in denying the requested modification.
Evidentiary errors
Next, the Brownes argue the trial court erred when it: (1)
excluded evidence regarding Foxfield’s lack of proper licensure
and accreditation, and (2) did not permit Pipolo to testify as an
14
expert witness. We review these rulings for abuse of discretion
(Pannu v. Land Rover N. Am., Inc. (2011) 191 Cal.App.4th 1298,
1317), and reject the Brownes’ arguments.
1. Licensure and accreditation
Defendants moved in limine to exclude evidence regarding
Foxfield’s lack of proper licensure and accreditation as a
sleepaway camp because it was more prejudicial than probative.
The trial court granted the motion. The Brownes argue that was
error because the evidence was probative to show the release was
void for a lack of meeting of the minds—i.e., that Kelly would not
have signed the release if she had known Foxfield was not
properly licensed and accredited. We do not resolve this
argument because even if the evidence was probative to the
release being void, its exclusion was harmless given our
conclusion that the release only applied to injuries resulting from
the inherent risks of horseback riding and not to the negligence
claims.
2. Pipolo’s testimony
At trial, Defendants objected to Pipolo’s testimony that Ava
was a “beginner” rider because Pipolo was not an expert and
could not opine on Ava’s skill level. The court sustained the
objection but allowed Pipolo to testify about her observations of
Ava’s riding.
There was no abuse of discretion. Pipolo was a lay witness
and could only offer opinion testimony if it was “[r]ationally based
on her perception” and “[h]elpful to a clear understanding of [her]
testimony.” (Evid. Code, § 800.) In contrast, an expert could
properly testify to an opinion related to “a subject that is
sufficiently beyond common experience” and based on their
special knowledge, skill, experience, training, or education.
15
(Evid. Code, § 801.) An assessment of a horse rider’s skill level is
related to a subject matter beyond common experience and thus
required an expert opinion. (See, e.g., Giardino v. Brown (2002)
98 Cal.App.4th 820, 826.)
Any error in disallowing Pipolo to opine that Ava was a
“beginner” rider also would have been harmless. Pipolo was
permitted to describe her observations of Ava’s riding abilities,
including observations on Ava’s issues with stability and control.
Rubio also testified that Ava was a beginning rider. And there
was no dispute Ava was classified in the lowest skill group at
Foxfield. Excluding Pipolo’s opinion thus did not prejudice the
Brownes.
Cumulative error
The Brownes argue cumulative error. Because we have
determined the trial court erred in granting nonsuit on the
ordinary negligence claim, this matter must be reversed. To the
extent the Brownes argue the remaining issues resulted in
cumulative error, our rejection of each of them forecloses their
claim. (People v. Avila (2006) 38 Cal.4th 491, 608.)
Section 998 costs award
Lastly, the Brownes contend the costs awarded to
Defendants pursuant to section 998 should be vacated. Section
998 provides that if “an offer made by a defendant is not accepted
and the plaintiff fails to obtain a more favorable judgment or
award, the plaintiff shall not recover [their] postoffer costs and
shall pay the defendant’s costs from the time of the offer.” (§ 998,
subd. (c)(1).) Because we reverse and remand the matter on the
issue of ordinary negligence, the Brownes can potentially obtain a
more favorable judgment or award on remand. We accordingly
vacate the costs award.
16
DISPOSITION
The judgment is reversed with respect to the nonsuit on the
ordinary negligence claim, and the section 998 costs award is
vacated. The matter is remanded for further proceedings
consistent with this opinion. In all other respects, the judgment
is affirmed. The parties shall bear their own costs on appeal.
NOT TO BE PUBLISHED.
BALTODANO, J.
I concur:
GILBERT, P. J.
17
YEGAN, J., Dissenting:
I respectfully dissent. The majority opinion erases
mother’s name from the waiver and release document. We
should not do that. “The purpose of the law of contracts is to
protect the reasonable expectations of the parties.” (Ben-Zvi v.
Edmar Co. (1995) 40 Cal.App.4th 468, 475.) Mother knew and
knows that riding a horse is dangerous and that people can be
seriously injured when riding a horse. Mother agreed to accept
this risk for her daughter. To be sure, she did not actually expect
that daughter would be hurt but she knew, or should have
known, that this was a foreseeable risk. The riding school had a
reasonable expectation that it would not be the subject of a
lawsuit based on a claim of negligence. These reasonable
expectations should account for something.
The trial court expressly ruled that the waiver and release
document was “very specific” and “very broad.” I agree with the
trial court. The activity that led to minor’s harm was riding a
horse and jumping a barrier in a country field. Minor was not a
first time rider. She had ridden and jumped horses at another
riding facility. She indicated on her application that she had
experience at horse jumping. How could riding and jumping a
horse not be covered by the release? Just what is the effect of
mother’s signature on the release directed to? And the last line of
the waiver and release document that mother signed could not be
more explicit: “I agree to pay all doctor or hospital fees if [my]
child is injured while staying at Foxfield [riding academy].” This
last sentence is in no way ambiguous and a reasonable person
can only read it as a release of any obligation of riding school to
pay these fees.
The nature of incremental and progressive teaching to
achieve proficiency in sporting activities, is pretty basic. A
professional surfing instructor does not start teaching on a 35-
foot-wave at Waimea Bay. A professional snow ski instructor
does not start teaching at Hangman’s Hollow in Mammoth
Mountain, one of the steepest and narrowest ski runs in the
United States. Incremental teaching moves in progressive steps.
It involves the professional judgment of the particular instructor.
When a mishap occurs, it is always possible to assert the
instructor has made a mistake and should be liable for the
choices made. But this is the nature of incremental teaching.
The teaching cycle involves “pushing” the student to the goal of
the lesson. “Learning any sport inevitably involves attempting
new skills. A coach or instructor will often urge the student to go
beyond what the student has already mastered; that is the
nature of (inherent in) sports instruction.” (Allan v. Snow
Summit, Inc. (1996) 51 Cal.App.4th 1358, 1368-1369; see also
Lupash v. City of Seal Beach (1999) 75 Cal.App.4th 1428, 1436-
1437.) There is an established progression to the goal of
proficiency. That is what happened here. The instructor did not
take the student to the equivalent of Waimea Bay or Hangman’s
Hollow. She took minor on a low-level jump course in the
country. This was progressive and incremental teaching.
A waiver and release document can always be more specific
and the majority could write such a document. So could I. This
is not the test on appeal. The commonsense rationale of the trial
court should not be tested by a waiver theoretically drafted by
Professors Williston or Corbin. (See Paralift, Inc. v. Superior
Court (1993) 23 Cal.App.4th 748, 755; see also National &
International Brotherhood of Street Racers, Inc. v. Superior Court
2
(1989) 215 Cal.App.3rd 934, 937-938.) The fair import of the
document is that it releases riding school from the theoretical
negligence of the instrutor who picked the horse and who made
the decision to jump in the field. It is always possible for a
plaintiff to characterize such decisions as “increasing the risk of
harm.” This is at variance to the concept of incremental and
progressive teaching.
The majority opinion relies heavily on Presiding Justice
Kline’s opinion in Cohen v. Five Brooks Stable (2008) 159
Cal.App.4th 1476. There is a comprehensive and compelling
dissent written by Justice Haerle. He has adequately answered
the present majority opinion’s analysis.
I have deep concern for the injured minor. But that is no
reason to void the release and waiver her mother signed. A
strong case can be made that no negligence was involved here at
all. But in any event, mother agreed to assume the risks involved
in the sport of horse jumping. As the waiver and release
document says: “[h]andling and riding of a horse ALWAYS
involves risk of bodily injury . . . .”
NOT TO BE PUBLISHED.
YEGAN, J.
3
Matthew P. Guasco, Judge
Superior Court County of Ventura
______________________________
Dykema Gossett, Becky S. James and Lisa M. Burnett for
Plaintiffs and Appellants.
Hawkins Parnell & Young, Elaine K. Fresch, Jerry C.
Popovich and Melanie M. Smith for Defendants and Respondents.