TO THE COURT, AND TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
COMES NOW Defendant KRISTI NUNNINK to submit the following Memorandum of Points and Authorities in support of her Motion, made during the bench trial, for Dismissal of all causes of action by both defendants, pursuant to Code of Civil Procedure (“ CCP”) § 631.8, as follows.
MEMORANDUM OF POINTS AND AUTHORITIES
A. STATEMENT OF THE CASE
The trial testimony and documentary evidence, adduced by the plaintiffs, has shown that decedent Mia Eriksson, daughter of plaintiffs KARAN and STAN ERIKSSON, was an experienced horse rider, skilled in equestrian jumping and eventing competitions. She was intelligent, a stickler for knowing and obeying rules, and was charged with knowing and obeying the rules of eventing. Mia Eriksson also well knew the risks of serious injury or death inherent in eventing and horse-riding in general, having lost her elder sister, Shana Eriksson, to a horse-riding incident, in 2003. Her parents, plaintiffs, herein, also knew that the sport of eventing, and horse-riding in general, presented the ready dangers of death or serious injury, having lost their elder daughter, as described above. Both plaintiffs had seen and known of riders falling, while on horseback, resulting in serious injury or death, before November of 2006.
Plaintiff KARAN ERIKSSON and her daughter, decedent Mia Eriksson, signed an Entry form (Trial Exhibit 302), for Mia to compete in the 2006 International CCI ** Eventing competition at Galway Downs, evincing recognition of the dangers of eventing, and both signed a Release of Liability form (Trial Exhibit 303), in favor of defendant KRISTI NUNNINK, on May 21, 2006, holding defendant NUNNINK without liability, and agreeing not to sue said defendant, for any damage, including death, arising out of Mia Eriksson’s use of defendant’s “services” as coach or trainer, unless such damage were “caused by the direct, willful and wonton negligence of [KRISTI NUNNINK, Mia’s] Trainer.”
On November 4, 2006, Mia Eriksson was in the process of competing in the Galway Downs 3-Day Eventing meet, riding her own trained horse, Koreography, sometimes called “Kory,” when she attempted to jump fence #19 in the cross-country course, resulting in her horse striking the fence, somersaulting, and landing on decedent, tragically bringing about fatal injuries. Defendant KRISTI NUNNINK was merely the decedent’s coach or trainer, not a designer, supervisor, installer, or maintainer of the equestrian course in which decedent rode on that fateful day. Defendant never owned or medicated Kory. Defendant was not involved in running
the 2006 Galway Downs International Event. Defendant was not on the cross-country course, when decedent rode in that phase of the competition, and had no right or duty to try to stop decedent from continuing on that cross-country ride, once decedent began, according to testimonial evidence adduced at trial by plaintiffs’ own witnesses.
Because decedent was still a minor by several days, in order to allow Mia to compete, her mother, plaintiff KARAN ERIKSSON, was required to sign, and did sign, the Entry form (Exh. 302), authorizing her minor daughter to compete at 2006 Galway Downs, in which plaintiff KARAN ERIKSSON was listed as the parent/guardian of the minor competitor, as well as the “Trainer” of decedent. KRISTI NUNNINK’s name did not appear anywhere on that form, and she did not sign or enter it. KARAN ERIKSSON’s testimony established the Mia Eriksson entered that form. No communication with the governing bodies of eventing in general, viz., the United States Equestrian Federation (“USEF”), United States Eventing Association (“USEA”) or International Equestrian Federation (“FEI”), nor with the organizer or sponsor of the competition, viz., Del Mar Eventing, or any official involved in running that competition, was ever attempted by either plaintiff, to withdraw their requisite parental authorization for the minor competitor, Mia Eriksson, to compete at 2006 Galway Downs. No rule from any organization allowing the minor’s coach or trainer, if arguably deemed to be KRISTI NUNNINK, notwithstanding plaintiffs’ official designation of KARAN ERIKSSON as Mia Eriksson’s “Trainer” on the Entry form, to withdraw the minor rider from the competition without the express authorization of withdrawal by the minor’s parent or parents, was ever adduced at trial.
On May 6, 2008, plaintiffs filed their lawsuit, naming nine (9) individuals and entities as defendants, including the USEF, the USEA, and Del Mar Eventing, also naming KRISTI NUNNINK, as the sixth-named defendant, in the third cause of action, for negligence, and the seventh causes of action, for negligent infliction of emotional distress. Defendant NUNNINK successfully moved for summary judgment, based on express assumption of the risk, primary assumption of the risk, the open and obvious condition doctrine, Civil Code § 1714, BAJI 3.13 and the Hunter v. Mohawk and Leo v. Dunham case opinions cited below, and contending there was no evidence that defendant NUNNINK breached any imaginary duty to decedent, legally causing damage to plaintiffs, under CACI 400, 430, and 1620. The eight other defendants also successfully moved for summary judgment, on many of the same bases, also on their own release and waiver as set forth in the Entry form (Exh. 302) signed by Mia Eriksson and plaintiff KARAN ERIKSSON. Plaintiffs chose to appeal only the NUNNINK summary judgment. The Court of Appeal reversed, finding that there was a possibility that a jury could find “reckless” behavior by NUNNINK in purportedly trying to convince plaintiff KARAN ERIKSSON, decedent’s mother, not to withdraw her consent for Mia to ride at Galway Downs, when NUNNINK supposedly knew that Kory was injured from ten days earlier, at another event called Ram Tap, taking this case out of the ambit of the primary and express assumption of the risk doctrines at law, notwithstanding that both plaintiffs and their counsel stated, on the record, that each knew of no evidence that Kory was unfit before he began his 2006 Galway Downs ride. The Court of Appeals decision was set forth in a published opinion, which became law of the case, on its remittitur to the trial court.
2. PROCEDURAL HISTORY OF TRIAL
On January 9, 2012, the matter came on for trial, before the Honorable Craig G. Riemer, Judge, in Department 5. In pre-trial conference, Judge Riemer noted that defendant NUNNINK had timely posted jury fees, but that plaintiffs had not, effectively forfeiting their right to a jury determination. Defendant NUNNINK then waived her right to a jury trial, conferring the right and duty of determination of fact, accompanying the extant duty of ruling on the applicable law, to Judge Riemer.
Although four witnesses called by the defendant were presented, by stipulation between the parties, out of order, during plaintiffs’ case in chief, plaintiffs were allowed to call all their witnesses, and present all their evidence, in their case in chief, resting their case, on January 26, 2012, pending court rulings on the evidence presented. During those nine trial days, plaintiffs’ counsel cross-examined each of the four defense witnesses, adducing testimonial, and occasionally documentary, evidence from Robert Kellerhouse, the principal owner of Del Mar Eventing who ran the 2006 Galway Downs International Event, Wayne Quarles, the FEI Head Judge and President of the Ground Jury at the 2006 Galway Downs CCI** International Event and Dressage Judge during that competition, Dr. Karen Nyrop, DVM, the FEI Veterinary Delegate and Committee Member who supervised the in-barn inspection schedule and acted as the Veterinary Delegate who adjudged horse fitness at the “First Horse Inspection” at the Galway Downs International CCI** Event, under FEI regulations, and Jenette Robb, a riding student of KRISTI NUNNINK in 2006 and fellow eventing rider who participated in riding lessons from defendant along with Mia Eriksson at the horse-facility property then owned by the plaintiffs, called Tahoe Meadows.
Plaintiffs examined defendant KRISTI NUNNINK, expert veterinarian Dr. Elaine Carpenter, expert horse trainer David Johnson, plaintiff KARAN ERIKSSON, and plaintiff STAN ERIKSSON, all of whom were cross-examined by counsel for defendant NUNNINK, before resting their case in chief.
Defendant KRISTI NUNNINK now moves this court for Judgment, per CCP § 631.8.
B. SALIENT TRIAL TESTIMONY
The uncontroverted facts, adduced through trial testimony and exhibits, included the following.
1. Both plaintiffs and the decedent knowingly, intelligently, and voluntarily assumed the risks inherent in the sport of eventing, and the sporting and recreational activity of horse-riding in general, before Mia Eriksson rode in the 2006 Galway Downs cross-country.
2. Plaintiff KARAN ERIKSSON and decedent Mia Eriksson knowingly, intelligently, and voluntarily signed Exhibit 303, a waiver of liability and agreement not to sue KRISTI NUNNINK for any damage, including death, occurring to Mia Eriksson arising out of KRISTI NUNNINK’s services as her trainer.
3. The only connection between Mia Eriksson’s tragic accident at fence 19 and KRISTI NUNNINK was the paid consultation services provided by said defendant to Mia Eriksson pertaining to riding in 2006 Galway Downs, and advice provided to KARAN ERIKSSON pertaining thereto.
4. Defendant NUNNINK had nothing to do with the design, construction, installation, monitoring, testing, or use of the fences and obstacles positioned on the cross-country course at 2006 Galway Downs CCI** International Event.
5. Defendant NUNNNK had never owned, medicated, or boarded Kory, Mia’s chosen eventing horse, which was housed, medicated, and owned by KARAN ERIKSSON, STAN ERIKSSON, and Mia Eriksson.
6. Defendant KRISTI NUNNINK had no authority, under the law or any rule of any eventing or horse riding body, to enter or withdraw a minor rider like Mia Eriksson from the 2006 Galway Downs International Event.
7. Two practicing veterinarians, viz., Dr. Liz Bracken and Dr. Karen Nyrop, examined Kory between his fall at Ram Tap, on October 21, 2006 and his cross-country run at Galway Downs, on November 4, 2006, neither one finding any sign of lameness or perceived mental/neurological deficits, before Kory’s 2006 Galway cross-country run, both having had a professional obligation to note such a problem, if perceived.
8. Kory was observed, on November 2, 2006, by two FEI judges and an FEI Veterinary Delegate, who then had the duty, according to the FEI Rules, to eliminate any horse from the 2006 Galway Downs competition because of any perceived problem in lameness, conditioning, or for any other fitness-related reason, in the trotout “first horse inspection” per the FEI Articles, none of which then perceived any such problem, and all of whom “accepted” Kory as fit for the CCI** competition immediately upon their examination.
9. The only veterinarian, or person with the necessary medical foundation, that opined that Kory was lame or had neurological deficits between the day after his fall at 2006 Ram Tap and the day on which he ran the 2006 Galway Downs cross-country course, was Dr. Elaine Carpenter, in October of 2011, who never examined Kory, has never been certified by the FEI or USEF for any purpose, has never judged any eventing competition, and was monetarily engaged solely as an after-the-fact expert witness for one of the parties to the lawsuit, unlike Dr. Liz Bracken, Dr. Karen Nyrop, and Mr. Wayne Quarles, all of whom noted no lameness, on examination and/or inspection of Kory after his 2006 Ram Tap fall and before he ran the 2006 Galway cross-country, the latter two of whom were under an FEI obligation to eliminate Kory from the Galway event if such problem were noted or place Kory in a holding area for further investigation if he presented even a “doubtful case,” which was never done, as no judge or veterinarian noted any such potential problem.
10. No veterinarian ever opined that Kory would somehow be unfit to compete at the 2006 Galway Downs CCI** International Event, at any time before the cross-country phase of that competition.
11. Notwithstanding a written instruction from Dr. Liz Bracken to KARAN ERIKSSON and Mia Eriksson to “follow up” Dr. Bracken’s examinations with Kory’s regular veterinarian, plaintiffs never did so “follow up” at any time before 2006 Galway Downs.
12. KRISTI NUNNINK, on her own, called her own regular veterinarian, viz., Dr. Kris Purcell, for advice on Kory, after 2006 Ram Tap and before 2006 Galway Downs.
13. KARAN ERIKSSON, having heard KRISTI NUNNINK’s November 3, 2006 representations that Kory received a score of 50 in that day’s dressage test, and that Kory had been jumping all week and was “good to go,” still insisted that Mia would not be allowed to ride in the 2006 Galway Downs CCI** cross-country course, and so was not convinced by KRISTI NUNNINK to allow Mia to compete therein.
14. KRISTI NUNNINK made no representation of a dressage score or prior jumping fitness of Kory to plaintiff STAN ERIKSSON, at any time after Kory’s 2006 Ram Tap fall and before Kory’s 2006 Galway cross-country ride.
15. KARAN ERIKSSON, after speaking with KRISTI NUNNINK over the telephone on November 3, 2011, purchased a plane ticket, flew to Riverside County, and arrived at Galway Downs, purportedly to either stop Mia from competing in the cross-country there or to “discuss” the matter with KRISTI NUNNINK, yet never attempted to contact KRISTI NUNNINK that evening or the next morning, by cell phone, even though she had defendant’s cell phone number, and never spoke with her daughter, Mia Eriksson, that night, and never checked on Kory that night or the next morning.
16. KARAN ERIKSSON testified that she spoke with KRISTI NUNNINK on Saturday, after breakfast, at which time defendant told said plaintiff essentially the same thing that she had told said plaintiff on the day before that, over the telephone, i.e., that Kory had received a 50 dressage score, had been jumping well, and was “good to go.”
17. Plaintiff KARAN ERIKSSON testified that, on Saturday, November 4, 2006, after she confronted her daughter Mia, at which time her daughter exhorted KARAN ERIKSSON not to “cause a scene,” then decided to allow Mia Eriksson to ride Kory in the CCI** cross-country, to avoid causing a scene, which is what David Johnson testified as the reason that KARAN ERIKSSON allowed her daughter to ride in the cross-country, based on his conversations with KARAN ERIKSSON, as noted in his October 26, 2011 Declaration under oath (Exh. 326), as opinion “N” in that document.
18. KRISTI NUNNINK believed, in her extensive experience, having coached about 80 riders on about 100 horses, that Mia Eriksson and Kory, in November of 2006, were capable of safely competing in the 2006 Galway Downs CCI** International Event.
19. KRISTI NUNNINK had professional coaching obligations to about eight other riding students, beside Mia, at 2006 Galway Downs, and was herself riding two horses in that event, at a higher level than the CCI**, and thus could not be with Mia at all times.
20. KRISTI NUNNINK, at the 2006 Galway Downs competition, reminded Mia Eriksson that she did not have to compete in the CCI** cross-country, and specifically that she could ride in the CCI* cross-country, a less challenging course, if she preferred, which idea was rejected by Mia Eriksson.
21. KRISTI NUNNINK was acknowledged by KARAN ERIKSSON and STAN ERIKSSON to have been an excellent eventing coach, and that Mia considered defendant her “best” riding coach.
22. KRISTI NUNNINK perceived no physical impediment to Kory’s ability to safely compete in the 2006 Galway Downs CCI** International Eventing cross-country, at any time after Mia and Kory performed jumps at a schooling session at Ram Tap, on October 21, 2006, and when Mia and Kory began their cross-country ride, at Galway Downs, on November 4, 2006.
23. KRISTI NUNNINK loved Mia Eriksson, and would never have knowingly placed Mia in a position of danger, beyond the inherent dangers of the eventing sport, by encouraging Mia to perform in a competition, like the 2006 Galway Downs International CCI** Event, that KRISTI NUNNINK believed was too difficult for her or Kory, or for which Mia or Kory was perceived by KRISTI NUNNINK as physically unfit to safely negotiate.
24. Dr. Elaine Carpenter opined that what she perceived from slow-motion and freeze-frame DVDs lameness in Kory at the 2006 Galway Downs trot-out examination, and neurological deficits that she attributed to post-(Ram Tap) concussion symptoms, exhibited at 2006 Galway Downs, would have been very difficult
to perceive, at regular speed, without the benefit of DVD, after-the-fact, technology, including slow-motion, freeze-frame, and side-by-side comparisons with earlier Ram Tap footage.
25. Dr. Elaine Carpenter opined that a layperson could have perceived the lameness in Kory, at his 2006 Galway dressage test, at regular speed, while also testifying that lameness had nothing to do with Kory’s fall at fence 19, which was, according to Dr. Carpenter, due to the horse’s inability to correct for rider error in the attempted take-off spot, because of a reduction in the speed of the horse’s brain in processing the information from mental injury due to his 2006 Ram Tap concussion.
26. Dr. Elaine Carpenter acknowledged, in viewing the DVD of Kory’s 2006 Galway cross-country performance (Exh. 320) that Kory performed a majority of the jumps very well and athletically, on his 2006 Galway Downs cross-country ride, at which moments any mental deficits were not affecting him, because those deficits “come and go” and the effect “waxes and wanes,” showing up at some times and not at others.
27. Although plaintiffs’ expert trainer, David Johnson, had the 2006 Galway Downs DVD, showing Mia’s trot-out examination, dressage, and cross-country ride, in 2008, and was specifically asked by plaintiffs’ counsel, in April of 2007, to prepare a declaration for use in opposing the Motions for Summary Judgment of all defendants including KRISTI NUNNINK, and was encouraged, in writing by plaintiffs’ counsel, to opine that KRISTI NUNNINK had increased the risks inherent in the sport by pushing Mia up to a two-star event too fast or soon, Mr. Johnson’s declaration under oath, dated May 3, 2009 (Exh. 319), contained no mention of any
error, act, or omission by KRISTI NUNNINK that caused or contributed to Mia Eriksson’s fatal jump at fence 19, and Mr. Johnson testified at trial, consistent with Exhibit 319), that he fixed the “exclusive” cause of Mia’s accident as the fault of an “over zealous course designer and jumps which do not fall down.” It was not until
all eight other defendants were dismissed, that he altered his written declaration by preparing a new one, on October 26, 2011 (Exh. 326), affixing blame for Mia’s accident on KRISTI NUNNINK, including opining that Mia had violated the four-refusal rule of elimination, not having left the cross-country course immediately,
because she was probably following her coach’s advice, though he admitted that he had seen no evidence that suggested that KRISTI NUNNINK had ever advised Mia Eriksson to continue riding after she were eliminated.
28. STAN ERIKSSON, KARAN ERIKSSON, Dr. Elaine Carpenter, and David Johnson each testified that he or she noted four refusals by Mia Eriksson, by fence 17, on the 2006 Galway Downs cross-country course, from viewing the DVD and/or seeing Mia and Kory riding in person.
29. By Mia’s fourth refusal or run-out, at the 2006 Galway Downs CCI** cross-country, Mia Eriksson was eliminated from the FEI event, and was required by FEI rules to then immediately exit the course, and not allowed to ride on.
30. Mia Eriksson violated the FEI rules by continuing to ride after her fourth refusal on the 2006 Galway cross-country. If Mia had not violated those FEI rules, and had exited the course, she would not have died at Galway Downs that day.
31. KRISTI NUNNINK had neither the right nor the opportunity to stop Mia from continuing to ride the 2006 Galway cross-country course, after Mia’s fourth refusal.
32. KARAN ERIKSSON, after having seen Mia’s accident, on November 4, 2006, and after having in January 2007 discovered Mia’s dressage score sheet, showing that Mia did not receive a 50 dressage score, but received a 72.2 score, still retained KRISTI NUNNINK to run her riding instruction program at Tahoe Meadows, for over a month, before then stopping KRISTI NUNNINK from returning to that property.
33. STAN ERIKSSON testified that he does not personally know of anything that KRISTI NUNNINK could have done to save Mia’s life, on November 4, 2006, and did not blame KRISTI NUNNINK for Mia’s accident.
34. Mia Eriksson’s 72.2 score, a qualifying score for higher levels of future competition, in her first CCI** dressage, was consistent with her earlier dressage scores, including a 70 score in an April 2006 CCI* dressage, at Twin Rivers, before Kory hooked a stifle at September 2006 Twin Rivers and before Kory fell at October 2006 Ram Tap.
35. Both Dr. Elaine Carpenter and Mr. David Johnson admitted that he or she could not rule out that Kory was injured when scraping his abdomen on Fence 4 in the 2006 Galway Downs cross-country course, and that said injury caused or contributed to his botched jump at fence 19, resulting in Mia's death.
36. Mia was required by the eventing rules to keep track of how many refusals or run-outs she had on her cross-country run.
37. Dr. Liz Bracken had performed what she described as two “complete” muscolo-skeletal and neurological examinations on Kory, on October 21 and 22, 2006, and that Kory was noted as “normal” in both areas, as of October 22, 2006.
38. David Johnson admitted that the standard of care of an eventing coach, which he has never been, would include relying on the opinions of qualified veterinarians that performed examinations on a subject horse, like Kory.
39. At no time during the two weeks after Kory fell at 206 Ram Tap, including up to and during Kory’s cross-country run at 2006 Galway Downs, did Mia ever complain about Kory not looking or feeling all right.
40. Mia Eriksson never attempted to withdraw from the 2006 CCI**Galway Downs International Event or stop riding.
In addition to the above uncontroverted facts, established through testimony and exhibits adduced during plaintiffs’ examination of witnesses, and defendant’s cross-examination thereof, the following factors involving the credibility of witnesses should be considered by the court:
1. KRISTI NUNNINK’s testimony on material facts was consistent with all documentation and common sense.
2. KARAN ERIKSSON’s testimony on material facts was conveniently clear on points favorable to her case, and cloudy on points adverse to her case. KARAN’s testimony was circuitous on subjects such as allowing Mia to go and be with friends, mutating to allowing her to trailer Kory to Galway to “tack walk” him, mutating later to allowing Mia to perform only the dressage, to then allowing Mia to ride n the cross-country. (It was circuitous and nonsensical that KARAN spoke with KRISTI NUNNINK at 12:45 PM, necessarily over two hours before Mia performed the dressage test, at which time KRISTI supposedly told KARAN that Mia received a 50 score, which KARAN would logically have known to have been untrue by simply asking Mia, who would have known, minutes after her dressage, exactly what her score was, as well as STAN ERIKSSON, who was there with Mia and would logically have listened for the score, which score KARAN could also have found out by simply checking where it was posted, going on-line, asking an event official, or inquiring of Mia, who would surely have been very curious to know what she had scored. It is nonsensical to think that Mia, riding in her first two-star dressage, hoping to obtain a qualifying score, would have ignored the announcement of her score, would not have checked the posting, and would not have discussed the fact that she obtained a qualifying score with her friends and parents, shortly thereafter, especially in preparing for the cross-country.
KARAN then supposedly takes a flight, to stop Mia from competing, instead of simply telling STAN to withdraw event authority or making a simple phone call, herself, but on arrival, never checks on Kory, never speaks with Mia, never even attempts to speak with KRISTI NUNNINK, and goes to dinner with Lauren Brooke’s parents, for two hours, never once discussing whether either of their daughters received a qualifying score in that day’s dressage test. It is far more likely that KARAN remained in norther California, as she stated, to have cosmetic work done on her face, then caught a flight to Riverside County when she saw that her face
was presentable enough, in order to watch her daughter perform in her first two-star dressage, having heard that Mia obtained a qualifying score of 72.2 in the dressage, whuch is why she never spoke with KRISTI or Mia, that evening, did not wake Mia up that night, did not check on Kory, did not request that a vet check Kory, did not call KRISTI on Saturday morning or Friday night, did not wake up early enough on Saturday morning to talk things over with Mia, and did not even speak with Mia until late in that morning. Then, at Mia’s request, KARAN ERIKSSON supposedly allows Mia to compete, to avoid creating a scene, admittedly not because of anything KRISTI NUNNINK said or did not say to KARAN ERIKSSON. This is only one of many examples of how KARAN ERIKSSON testified in contradistinction to what common sense and the other evidence strongly suggests. Why would KARAN have allowed Mia to trailer Kory down to Galway Downs, for nine hours, if she really was concerned that Kory was not up to the two-star event, just to “tack walk” him? Go would allow her daughter to trailer an eventing horse whose “season is over” for nine hours just to do a dressage penalty test? The purpose of that test is to get past it, to do the cross-country and show jumping, hopefully obtaining qualifying scores for future competitions.)
3. STAN ERIKSSON had no testimony that favored the plaintiffs’ liability case, except for the representation that Mia rode in her dressage test, at 2006 Galway, at about 11:30 AM, which directly contradicts the testimony of disinterested witness Robert Kellerhouse, who testified that Mia’s dressage necessarily started at about 3 PM, based on the consecutive order of competitor numbers. That testimony was offered to try to keep KARAN ERIKSSON’s prevarication about KRISTI NUNNINK informing KARAN that Mia had received a 50 score in the dressage, on November 3, 2006, at 12:45 PM, over two hours before Mia actually performed that dressage.
4. David Johnson’s testimony as not believable, and was convenient in its omissions and references to foundational materials that were either not fully described by source and date or admittedly had nothing to do with Mia’s accident, such as rulebooks from the USEF (FEI rules, not USEF rues, were used at 2006 Galway),
rulebooks and other references dating from 2004, 2008, and other dates that were inapplicable to the 2006 Galway Downs International Event. Over a year after he had received and viewed the DVD of Mia’s 2006 Galway Downs performance, he still had not formed the opinion that Kory was lame in that trot-out, dressage, or cross-country, and blamed the course designer and jump construction, not the coach or trainer, “exclusively” for Mia’s accident, despite plaintiffs’ attorneys having requested a declaration from him that also blamed KRISTI NUNNINK.
5. Dr. Elaine Carpenter, an Arizona veterinarian that had not even seen an event since 1987, was not FEI or USEF certified in anything, had never examined Kory, was not aware that dressage judges are expected to also evaluate the horse for lameness and fitness, and who had never seen the Complaint and was not aware that plaintiffs, through their attorneys, had blamed Mia’s accident on eight other defendants, could not account for the fact that Kory’s dressage score at 2006 Galway was consistent with, and actually better than, most of his dressage scores during that year, including in events at which he had no sign of any injury. She explained that Kory had lameness, at Galway, which was disputed, in detailed fashion, by two witnesses, Wayne Quarles and Dr. Karen Nyrop (as well as by the veterinary report of Dr, Liz Bracken), both of whom had actually inspected Kory, who had an obligation to eliminate Kory from the Galway competition of he were noted to have lameness or otherwise show unfitness, and who were not simply paid witnesses by one of the parties. Ultimately, when confronted with the DVD showing that Kory jumped very well, when not induced to confusion by Mia during the cross-country, Dr. Carpenter accounted for the difference by stating, unbelievably, that neurological problems like this “come and go” and that such a symptom “waxes and wanes.” She also gave the absurd opinion that the brain of this horse could send a neurological signal telling the rear legs of the animal to halt, while telling the front legs of the animal to jump forward. Common sense and elementary understanding of synapse firing and thought generation reveal that opinion to be ludicrous. Dr. Carpenter’s opinion had never before been sought in a litigation matter, except when her own colleague was accused of malpractice. Dr. Karen Nyrop, a 31-year veteran of equine veterinary medicine practice that had lived in Arizona, had never heard of Dr. Carpenter.
On balance, that testimony offered by plaintiffs’ witnesses, in their case in chief, were not credible on
the salient legal points, which are discussed below.
KRISTI NUNNINK did not design that challenging course. She did not participate in the installation of the course obstacles. She was not even consulted on any aspect of the course obstacles, space between them, or juxtaposition of devices and obstacles. Defendant NUNNINK was not called upon to act as an official at the
meet, and the cross-country course in particular, to judge the competitors, to maintain the rules or protocols of the event, or to change any aspect of the eventing competition. In fact, KRISTI NUNNINK was not even allowed to have any contact or communication with the rider, her own student, once that student began the
cross-country. KRISTI NUNNINK was not a vet, had no medical or veterinary training or education, and was not called upon to assess the health status of any horse in the competition. Defendant NUNNINK did not own Kory. Plaintiffs and their daughter did. KRISTI NUNNINK did not transport Kory to Galway Downs. Mia Eriksson did. KRISTI NUNNINK did not medicate Kory. KARAN ERIKSSON admittedly did. KRISTI NUNNINK did not form or enforce the rules of the competition. The FEI,
USEF, and USEA did. KRISTI NUNNINK was not charged with fetching Mia, or escorting her off the course, when she had missed her fourth jump and was eliminated. KRISTI NUNNINK did not have the legal or FEIauthority to consent to the minor, Mia Eriksson, riding in the 2006 Galway Downs event. STAN and KARAN
ERIKSSON did, and granted that consent, in writing.
It is clear that Kory was not injured before he began the cross-country course. Thus, missing the Fence 19 jump occurred because of some other reason, not a pre-cross-country run injury. Even assuming there was any such imaginary injury to Kory that were somehow proven to have caused Kory to botch the Fence 19 jump,
KRISTI NUNNINK had no way of noticing any such supposed injury, which had passed the scrutiny of two vets [charged with noting that type of injury or instability], KARAN and STAN ERIKSSON, all FEI, USEA, and USEF course officials and judges, including from the dressage, all other friends and observers, themselves experienced horse-riders and -owners, and Mia Eriksson herself, who was the owner and rider of that specific horse. Even after Kory had failed on four jumps, Mia decided to ride and jump further, ignoring the warning signs that she and Kory were not up to it that day, that one or both of them were having a bad day, risking her own life and tragically losing it by that risk.
Equestrian competition, especially involving participation by riders experienced with their horses of choice and such competition courses, is a vigorous sports event, often televised. Equestrian riding comprises an international sports event in the summer Olympic Games, every four years, and the Pan Am Games. It is not
uncommon for a rider to fall, or for her horse to falter, leading to injury and even death, a risk which the participants understand and volunteer to undertake, including in written form, by express waivers of liability to assume such risks. Several other riders had died within a year of Mia’s death, in eventing falls. Because
decedent was barely a minor, her mother, a plaintiff herein, signed such an express waiver of liability and assumption of the risk of such injury or death, as did decedent herself, in favor of defendant NUNNINK. Plaintiffs knew that risk better than anyone, having tragically lost their elder daughter, Shana, to a horse- riding
accident in 2003.
There is no evidence that KRISTI NUNNINK evinced even simple negligence, much less the “recklessness” or “direct, willful and wanton negligence” that the Court of Appeal determined would have to be shown to take this case out of the ambit of the primary and express assumption of the risk doctrines, both of which operate to negate the duty element in negligence and bar lawsuits like this.
Decedent exercised her own judgment in jumping course fences that she fully viewed beforehand, primarily assuming the risk of that vigorous and dangerous sport, especially after she was eliminated and required to exit the course. Decedent’s mother, on behalf of the minor decedent, expressly waived any right to recover for any accident, such as the instant one, expressly assuming the risks thereof. The conditions that plaintiffs blame for decedent’s death were as open and obvious as they could be, especially to an experienced competitive rider, and decedent actually walked that same course, and warmed up on the same horse, before the competition. NUNNINK was merely the trainer, not the event sponsor, installer, supervisor, qualifier, inspector, designer, or maintainer, and so had no duty regarding the course conditions. There is and can be no evidence that KRISTI NUNNINK breached some duty regarding her training of the decedent, legally causing decedent’s demise.
In order to be liable for negligence, a necessary element also in negligent infliction of emotional distress, said defendant had to have breached an owed duty to a foreseeable plaintiff, legally causing injury thereto. BAJI 3.00, 3.10, 3.76; CACI 400, 430, 1620. There is no law or fact that shows that defendant NUNNINK had any duty to decedent, who went out on her own, in an open and obvious condition, primarily and expressly assuming all risks thereof, in an area of known potential danger, with her own chosen horse, in violation of her own duty for her own safety. Even if there were some imaginary duty, ignoring the “open and obvious” condition doctrine, primary assumption of the risk, and express assumption of the risk appellate decisions to the contrary, defendant NUNNINK certainly never breached that duty, since she had no obligation, and took no action, concerning the course or gates that decedent knowingly and voluntarily attempted to negotiate to her tragic end. KRISTI NUNNINK never noted any injury to Kory, nor did anyone else, including professional vets, plaintiffs, and Mia Eriksson herself.
Perhaps more pointedly, even if there were some negligence by KRISTI NUNNINK, which appears contrary to even the facts adduced by the plaintiffs’ witnesses (KRISTI’s perception of the fitness of Kory paralleled the observations of all percipient professionals that observed Kory, including two vets), there certainly can have been no negligence that would rise to the recognized level of recklessness or “wanton and willful” negligence. Neither was there any “direct negligence” by KRISTI NUNNINK, legally causing Mia’s terrible accident. KRISTI NUNNINK did not ride, medicate, direct, or obstruct Kory, while he rode on the Galway cross-country. Any representation purportedly made to the mother of the minor rider is not recognized by any law as “direct” negligence.
According to the plaintiffs’ own Complaint allegations, they cannot carry their burdens of proving duty, breach, or causation, against KRISTI NUNNICK, and their action against said defendant is barred. There is a marked absence of any affirmative facts showing: (1) NUNNINK violated any duty to decedent, legally causing
her death; (2) NUNNINK owed any duty to decedent; (3) Decedent herself was not legally responsible for her own accident and death, under the primary assumption of the risk and “open and obvious condition” doctrines, which operate to bar plaintiffs’ recovery herein; and (4) Plaintiffs, through their decedent and stepping into her shoes, did not voluntarily and expressly waive any potential recovery from this incident by the written express assumption of the risk, assumed by decedent herself, as well as independently by KARAN ERIKSSON. This Court is not instituted to entertain every imaginable theory of liability when factually unsupported, in the face of a Motion for Judgment at trial, especially when the facts discovered point to the legal insufficiency of plaintiffs’ theory of recovery. There have been no facts to allow this Court to even liberally infer the elements necessary to recover against defendant NUNNINK. In addition, there is no law which wouldallow plaintiffs to recover, under a negligence theory or any other, as against said defendant, based upon plaintiffs’ own Complaint language, in concert with the well-documented facts adduced at trial. For these reasons, a Judgment for defendant is proper and should be granted.
1. DEFENDANT’S MOTION FOR JUDGMENT IS TIMELY MADE.
CCP § 631.8(a) states, in its first two sentences:
“After a party has completed his presentation of evidence in a trial by the court, the other party,
without waiving his right to offer evidence in support of his defense or in rebuttal in the event the
motion is not granted, may move for a judgment. The court as trier of the facts shall weigh the
evidence and may render a judgment in favor of the moving party, in which case the court shall
make a statement of decision as provided in Sections 632 and 634, or may decline to render any
judgment until the close of all the evidence.”
In the instant case, plaintiffs rested their case, on January 26, 2012, “complet[ing their] presentation of evidence” in this bench trial. The “other party” is defendant KRISTI NUNNINK, who hereby moves this court for judgment, pursuant to this statute.
2. DEFENDANT NUNNINK CANNOT BE HELD LIABLE IN NEGLIGENCE BECAUSE SHE OWED NO DUTY TO DECEDENT.
The necessary elements for a cause of action in negligence are: (1) A duty to some foreseeable plaintiff; (2) breach or failure to perform; (3) which legal[ly] cause[s]; (4) injury [or other damages] to plaintiff. CACI 400; BAJI 3.00 et .seq. (West 1986); Prosser, The Law of Torts pp. 143-166 (4th ed. 1983); 4 Witkin Summary of California Law, Torts Section 486 (8th ed.); Restatement 2d Torts sections 282, 284 (ALI); Benedek v. PLC Santa Monica, LLC, (2002) 104 Cal.App.4th 1351, 1356; Custodio v. Bauer (1967) 251 Cal.App.3d 303, 59 Cal.Rptr. 463. In order for plaintiffs to recover against any defendant, they must prove each required element against that defendant, including duty, whether for negligence or negligent infliction. Pereira v. Dow Chemical Company (1982) 129 Cal.3d 865, 872, 181 Cal.Rptr. 364; CACI 400, 1620.
Defendant NUNNINK was merely the riding trainer of the decedent. She did not have any obligation, job, or supervisorial duty or position at the Galway Downs property, on November 4, 2006. She had not even a right, much less any obligation, to tamper with the designs, installation, positioning, presentation, or maintenance of any condition of the subject course at the eventing meet. There is no theory that she somehow influenced decedent’s horse in such a way that it was substantially likely to throw its rider or miss jumping Fence number 19. Based on the allegations of the Complaint themselves, defendant NUNNINK had no duty to take any action for decedent’s benefit that was not in fact undertaken, legally causing decedent’s demise.
In addition to NUNNINK’s lack of involvement in the mechanism of death and the allegations of course irregularities over which she had no control, NUNNINK also had no duty, by operation of law, because decedent primarily assumed the risks of her actions, as she was an experienced, voluntary, qualified equestrian competitor, and knew the risks inherent in riding a horse through the rigorous obstacles presented in the subject course or any other designed for competition among such riders and their horses. Further, said defendant owed no duty to decedent because the course conditions in the cross-country segment were as “open
and obvious” as they could be, especially to an experienced competitive rider who had walked exactly that course for over two hours before the fateful competition, as the case authority cited below makes clear. On this basis alone, judgment should be granted to defendant NUNNINK.
The owner [or controller] of premises has no duty to warn of open and obvious dangers on that property. Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 126 (defendant summary judgment affirmed); Bunch v. Hoffinger Industries, Inc. (2004) 123 Cal.App.4th 1278; Craig v. Kaplan (1965) 238 Cal.App.2d 581. Recovery for plaintiffs based on premises liability-based negligence is generally limited to situations in which injury arises from an “unobvious” and pre-existing condition on the property. Sheeler v. Greystone Homes, Inc. (2003) 113 Cal.App.4th 908 [emphasis added].
In this case, the course conditions could not have been more “open and obvious,” as the descriptions thereof in plaintiffs’ depositions clearly demonstrate. The accident took place on a course specially set up for exactly this event, by professionals with a venerated history of designing and installing such courses, with no
contribution or involvement therein by NUNNINK. For this reason alone, a defense judgment is proper.
3. DEFENDANT NUNNINK CANNOT BE HELD LIABLE FOR NEGLIGENCE, BECAUSE SHE BREACHED NO DUTY.
As noted above, defendant NUNNINK had no responsibility, under any organization, for any design, construction, or activities within the competition eventing course, on November 4, 2006. She had merely trained decedent on and prior to the date of this tragic incident. The Complaint contains no allegations that any such training administered by NUNNINK was errant, causing the demise of Mia Eriksson. Because she had no duty to design, install, move, change, remove, or otherwise adulterate any condition of the course that plaintiffs allege was unreasonably dangerous, and did not attempt to so design, install, move, change, or remove any condition on that course, NUNNINK can have breached no duty, whatever that might imaginarily have been on this occasion, to decedent, under CACI 400 or 1620. There simply is no evidence to suggest, much less prove, that NUNNINK breached any imaginary duty to decedent, legally causing plaintiffs’ damages.
Plaintiffs’ expert, David Johnson, testified that a proper riding coach would have reasonably relied on the opinions of qualified veterinarians that examined or inspected the subject horse. Two such vets inspected Kory, viz., Dr. Liz Bracken and Dr. Karen Nyrop, neither finding that Kory had any perceptible lameness or mental problems, according to the documentary evidence, such as in Exhibit 311, even though they both knew that Kory had incurred a fall at 2006 Ram Tap, on October 21, 2006, that eliminated him from that event.
Athletes sometimes miss their mark, and do not perform the same way on successive occasions. Otherwise, a baseball pitcher that has thrown a no-hitter would do so every time, at least against the same opposing batting lineup. Kory was an athlete in 2006 Galway Downs, as was Mia. That event was the first two-star event in which Mia had ever ridden Kory. Testimony based on the DVD revealed that both rider and horse made mistakes at Fence 19, combining to cause this tragic result, with KRISTI NUNNINK unaware of any purported injury.
Even assuming there had been a significant injury to Kory before he ran the Galway Downs cross-country, which is incorrect, in order for KRISTI NUNNINK to have been “reckless” pertaining thereto, she would have to have known about it, including that it was severe enough to endanger Mia beyond the risks inherent in that two-star competition, and then convinced KARAN or STAN to allow Mia to ride the course notwithstanding the known, enhanced danger to Mia because of it, in order to take this case out of the legal bar to the lawsuit against her. Two certified, specialist vets examined Kory and found him fit to run the Galway Downs cross-country. Those vets, one of whom was retained privately by KARAN for her opinion right after Ram Tap (Dr. Liz Bracken), certainly had more knowledge about the health of horses than NUNNINK, KARAN, STAN, or any of the parents or other riders, none of whom was a vet. How can anyone competently state that KRISTI NUNNINK, who did not own, ride, or trailer Kory, between Ram Tap and Galway Downs, knew more than the three vets that examined Kory, as well as the owner and rider of that horse, viz., Mia Eriksson, who never noted any injury or impediment to Kory’s anticipated performance in the Galway Downs cross-country? The notion is absurd. In addition, it is unquestioned that KRISTI NUNNINK loved Mia Eriksson, and would never have knowingly subjected Mia to a heightened level of danger in eventing. There can be nothing done or omitted by KRISTI NUNNINK that rises to the level of “recklessness” or “willful and wanton” negligence, legally causing Mia Eriksson’s accident.
KARAN ERIKSSON testified that she, not KRISTI NUNNINK, was with Kory on Monday, Tuesday, Wednesday, and Thursday, October 23, 24, 25, and 26, 2006, walked Kory around, checked on him, fed him, and “gave him his meds.” KARAN never opined that Kory was unfit, and never attempted to stop STAN from trailering Kory down to Galway Downs or Mia from traveling down to that eventing location and beginning the competition, in the dressage. KARAN never even spoke with any of the Galway Downs vets, or requested a second opinion. No-one ever expressed an opinion that Kory was not up to the Galway Downs competition, including KRISTI NUNNINK.
In order to take this matter out of the ambit of the legal bar to this lawsuit, NUNNINK would have to have known that Kory was unfit, have deceptively and wantonly convinced a reluctant KARAN or STAN to allow Mia to ride, in combination with some known injury that actually caused Kory and Mia to jump badly at Fence 19, causing Mia’s demise. None of those facts is present in this lawsuit. KARAN was not reluctant at all, as all evidence from several sources will show. Kory had no significant injury, at least perceived by the vets that examined and judged him, and certainly not one that caused him to jump errantly at Fence 19. KRISTI NUNNINK did not know about any such an imaginary injury, and did not have to convince KARAN or STAN to allow Mia to ride, since they both expected and looked forward to seeing Mia compete, which is why STAN trailered Kory down to Temecula, Mia traveled down to Temecula, KARAN flew down to Temecula, Mia practiced on Kory all the preceding week, and no withdrawal of parental consent was ever provided by STAN or KARAN.
It is important to remember that the Court of Appeal did not find that NUNNINK had been reckless or even negligent, but simply determined that there was some evidence, from KARAN ERIKSSON, which, if believed by the fact-finder, could be construed as indicating that KRISTI NUNNINK might have been “reckless,” meaning that, at the Summary Judgment stage, KRISTI NUNNINK was not entitled to judgment as a matter of law. The Court of Appeal did not indicate that NUNNINK had ever breached any duty, or that she was in fact negligent, much less “reckless.” There is no law of the case on those issues.
4. DEFENDANT NUNNINK CANNOT BE HELD LIABLE FOR NEGLIGENCE, BECAUSE THERE IS NO EVIDENCE THAT ANYTHING ALLEGEDLY DONE OR OMITTED BY HER LEGALLY CAUSED DAMAGE.
Based on the Complaint, testimony of both plaintiffs, and testimony of KRISTI NUNNINK, without even mentioning that of the defense witnesses called out of order during plaintiffs’ case in chief, decedent was very bright and fully cognizant of what she was expected to do in the eventing course, failed to deftly manage it, knowingly violated the safety rule of a four-stop elimination and required exit from the cross-country course, and tragically died as a result of a pure accident in which her horse fell on her. KRISTI NUNNINK was not expected to guide, ride, or otherwise affect any movement of the horse while in the control of decedent, and
was prohibited from doing so by the competition rules to which decedent and plaintiffs willingly subscribed. KRISTI NUNNINK was not charged with, nor did she attempt, any aspect of the design, construction, measurement, inspection, or maintenance of the subject eventing course, or any condition on that property,
which was owned, managed, possessed, and maintained by others. Thus, nothing that KRISTI conceivably did, or omitted to do, was the legal cause of Mia Eriksson’s demise or any alleged damages to plaintiffs.
Decedent’s own act, and not any supposed act or omission of defendant, is what legally caused her own death. Thus, nothing that defendant KRISTI NUNNINK allegedly did, or omitted to do, legally or “directly” caused any damage to decedent, under BAJI 3.76 or CACI 430, which require that some act of the defendant be a “substantial factor” in bringing about the damage. There is no evidence at all that KRISTI NUNNINK did or omitted to do anything that was any factor, much less a substantial one, in bringing about the decedent’s death.
Moving defendant cannot be negligent for failing to anticipate an accident that could only occur as a result of a plaintiff’s or decedent’s violation of her duty to act reasonably for her own safety. BAJI 3.13; Hunter v. Mohawk Petroleum Corp. (1959) 51 Cal.2d 439, 441; Leo v. Dunham (1953) 41 Cal.2d 712, 715; Civil Code §1714. This rule also applies to children. It should be assumed that a child will act as other children of the same age under similar circumstances will ordinarily act. Garibaldi v. Borchers Brothers (1957) 48 Cal.2d 283, 292, 309 P.2d 23, 27; Casas v. Maulhardt Buick, Inc. (1968) 258 Cal.App.2d 692, 700, 66 Cal.Rptr. 44, 49. The subject event was intended for riders including exactly the decedent’s age, almost that of majority. She was qualified to so compete. Decedent ignored her coach’s barn rule of two stops and the obvious fact that she was already eliminated from the competition because of her four stops on the cross-country course, prior to attempting to jump Fence 19, but unilaterally decided to proceed to that jump anyway. That was her own decision and activity, in violation of the eventing rules, which were instituted for safety, in this potentially dangerous sport.
Defendant KRISTI NUNNINK need only show that there is no triable issue of material fact as to only one necessary element, from among duty, breach, causation, or damages, to obtain a Judgment, under CCP § 631.8. All three requisite elements of duty, breach, and causation are absolutely missing as against KRISTI
5. PLAINTIFFS ARE BARRED FROM RECOVERY AGAINST DEFENDANT NUNNINK, BECAUSE DECEDENT PRIMARILY ASSUMED THE RISK OF HER OWN SPORTS RELATED ACTIVITIES.
The Primary Assumption of Risk Doctrine bars recovery in exactly this type of case. California case law is clear that the primary assumption of the risk doctrine applies where one participating in a sporting or recreational activity with certain known dangers subsequently sustains injury arising out of such foreseeable
circumstances. The doctrine applies when “the activity 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.”
Calhoon v. Lewis (2000) 81 Cal.App.4th 108, 115, quoting Bjork v. Mason (2000) 77 Cal.App.4th 544, 550, Record v. Reason (1999) 73 Cal.App.4th 472, 482.
It is well-settled that “primary assumption of the risk” cases are those in which the defendant owes no duty to protect a plaintiff or decedent from a particular harm, such that the plaintiff has no right of recovery should such harm result. Shelly v. Stepp (1998) 62 Cal.App.4th 1288, 1292. Under California law, the affirmative defense of primary assumption of the risk calls for a determination by the Court as to whether the defendant owes any duty to the plaintiff, given the particular activity involved and the parties’ respective relationships to the activity and each other. Giardino v. Brown (2002) 98 Cal.App.4th 820, 830. Where the doctrine applies, the analysis of whether a duty is owed involves consideration of the nature of the activity engaged in, and the relationships between the defendant and the activity engaged in, as well as between the defendant and the plaintiff. After consideration of these factors, a determination must be made as to whether the alleged conduct is an “inherent risk” of the activity such that liability cannot attach as a matter of law. Shelly v. Stepp (1998) 62 Cal.App.4th 1288, 1293, citing Dyer v. Sup. Ct. (1997) 56 Cal.App.4th 61, 68.
California law has specifically applied the primary assumption of risk doctrine applies to equestrian activities. See, e.g., Harrold v. Rolling J Ranch, (1993) 19 Cal. App. 4th 578; Shelly v. Stepp, supra. In the closest case to the instant facts presented among California appellate opinions, viz., Shelly, plaintiff was an experienced horseman who was exercising a race horse in the course of his employment, when the horse became spooked by another horse sidestepping on the racetrack, and plaintiff fell to the ground upon an interaction or collision between the horses, resulting in personal injuries to plaintiff. Shelly, supra, 62 Cal. App. 4th at 1290-1291. Plaintiff argued that defendant was negligent in not having a second horse and rider present to control an allegedly unruly or untrained horse. However, the court recognized that racehorses are by nature difficult to control, and that even if the allegations of defendant’s negligence were true, they did not notably increase the risks inherent in the activity in which that plaintiff engaged. Specifically, the court noted:
“It is not unusual for a horse to come to a sudden stop, rear up, or sidestep and thereby cause a collision
with another horse and rider following close behind. . . . The fact that . . .negligence may have
contributed to the collision does not alter the conclusion that appellant assumed the risk of being
injured in this manner . . ..” Shelly, supra, 62 Cal. App. 4th at 1294-1295[emphasis added].
In Harrold, plaintiff was injured while riding a horse owned by defendant and which was rented out to the public for use on trail rides. Further, the Harrold horse was known by defendant to have spooked, bucking another consumer to the ground on a previous occasion, but defendant did not inform plaintiff of the prior incident, nor was the horse retrained thereafter. That plaintiff alleged negligence for failure to warn, for providing a horse with an unstable temperament and tendency to throw riders, and for failing to warn of dangerous propensities of the horse. Primary assumption of the risk was still held to bar that plaintiff’s action.
In the instant case, the horse belonged to the decedent, not the trainer. There is no issue of any history of voluntarily throwing a rider, which would have been decedent in any event, as it was her own horse. The primary assumption doctrine, once the facts are adduced at trial pertaining thereto, should result in a directed verdict in the instant action much more readily even than it did in the Harrold case.
In analyzing primary assumption of the risk, the California Supreme Court stated, in Avila v. Citrus Community College District (2006) 38 Cal.4th 148, 131 P.3d 383, 41 Cal.Rptr.3d 299, the “existence of “‘[d]uty’ is not an immutable fact of nature ‘’but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.’” [Citing Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472, emphasis in original]. “Thus, the existence and scope of a defendant’s duty is an issue of law, to be decided by a court, not a jury.” [Citations omitted.] Avila, 38 Cal.4th at 160-161. “Players, coaches, managers, referees and others who, in one way or another, voluntarily participate must accept the risks to which their rules expose them.” Tavernier v. Maes (1966) 242 Cal.App.2d 532, 553, 51 Cal.Rptr. 575, 588 [emphasis added]. The instant decedent was in that class of participants in the sport of equestrian eventing that voluntarily, primarily assumed the risks, since she was an experienced competitor, examined the very course in which she would later incur her accident, and knew or should have known exactly the danger of encouraging a large animal to jump over obstacles and otherwise negotiate a challenging course. This doctrine bars recovery by plaintiffs from defendant NUNNINK, as a matter of law.
Although there is no case exactly on point to the facts of this case, both the Shelly and Harrold appellate opinions, with very similar facts and circumstances, call for this case to be dismissed on a defense judgment, focusing on the voluntariness of decedent’ s activity, foreseeable actions and reactions from animals which are not machines, viz., horses, the particular knowledge of decedent and her ability to protect herself and take precautions against such a foreseeable action as a bolt, turn, or other predictable horse reaction, and the particular vigorous, athletic activity in which the subject horse and decedent were engaged.
The pointed case law provides a strong basis to dismiss the instant action, most notably the opinions in Domenghini v. Evans (1998) 61 Cal.App.4th 118, 70 Cal.Rptr.2nd 917, Shelly, supra, and Harrold, supra.
Because horses are animals with brains, fears, and separate intentions, not always following strict instructions, experienced horse handlers such as decedent should know that they may not respond perfectly, in the way they would like. Decedent well recognized that horses have a tendency to throw, bolt, and even bite, which tendency is well documented in several appellate cases, including the Harrold opinion cited above, if only by the tragic demise of her older sister, Shana, three years earlier. This is an activity which the court deems known or reasonably known even to an inexperienced dude ranch horse rider. Obviously, to an experienced rider, owner, and handler of horses, such as decedent, especially with a history of having fallen while competing in the cross-country in an earlier event, decedent was held to an even higher standard of knowledge regarding exactly these propensities. Thus, this lawsuit should be barred.
6. NUNNINK CANNOT BE SUED HEREIN BY PLAINTIFFS, AS THEY, ON BEHALF OF DECEDENT, EXPRESSLY WAIVED ANY POTENTIAL RECOVERY BY VIRTUE OF DECEDENT’S ACTIVITIES, MEANING THAT THEIR ACTION IS BARRED BY THE DOCTRINE OF EXPRESS CONTRACTUAL ASSUMPTION OF THE RISK.
A release may negate the duty element of a negligence action. Benedek v. PLC Santa Monica, LLC, (2002) 104 Cal.App.4th 1351, 1356. Contract principles apply when interpreting a release, and “normally the meaning of contract language, including a release, is a legal question.” Id. at 1356, citing Solis v. Kirkwood
Resort Co. (2001) 94 Cal.App.4th 354, 360.
A written release may exculpate a tortfeasor from future negligence or misconduct. Benedek, supra, 104 Cal.App.4th at 1356. To be effective, such a release must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties, and the release need not achieve perfection. Id., citing Bennett v. United
States Cycling Federation (1987) 193 Cal.App.3d 1485, 1490; See also, Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 754. In fact, the inclusion of the term “negligence” is simply not required to validate an exculpatory clause. Sanchez v. Bally’s Total Fitness Corp. (1998) 68 Cal.App.4th 62, 67. Whether the exculpatory clause bars recovery against a negligent party is controlled by the intent of the parties as expressed in the written agreement. Id. A waiver of liability in an agreement necessarily releases the enterprise and property managers from liability for their negligence, since there is no other liability to release. Id. at 69.
The scope of the release is determined by the express language of the release. Benedek, supra, 104 Cal.App.4th 1357. The express terms of the release must by applicable to the particular negligence of defendant, but every possible specific act of negligence need not be spelled out in the agreement. Id. When a release expressly releases a defendant from any liability, it is not necessary that plaintiffs have had a specific knowledge of the particular risk that ultimately caused the injury. Id. If a release of all liability is given, the release applies to any negligence of the defendant. Id. The issue is not whether the particular risk of injury is inherent in the recreational activity to which the release applies, but rather the scope of the release. Id.
An act of negligence is reasonably related to the object or purpose for which the release was given if it is included within the express scope of the release. Benedek, supra, 104 Cal.App.4th at 1357-1358. Releases given in connection with sporting or fitness activities are applicable to injuries incurred while engaging in such activities. Benedek, supra, 104 Cal.App.4th (injury to knee while adjusting television set prior to beginning regular workout); Sanchez, supra, 68 Cal.App.4th at 68 (slip and fall on slide exercise mat during exercise class between exercises); Lund v. Bally’s Aerobic Plus, Inc. (2000) 78 Cal.App.4th 733, 738 (injury to spine while using weight lifting equipment under supervision of personal trainer). In Benedek, supra, plaintiff signed a membership agreement which contained a waiver of liability clause. In the initial paragraph, plaintiff acknowledged and understood that he was using the facilities and services of the hotel and spa at his own risk. Id. at 1354. The Benedek plaintiff, before using a training machine attempted to adjust a television to use during his workout. When he touched the rack that held the television set, the television slid off the rack over his head. As he attempted to hold the television in place, he injured his knee. Id. at 1355. The trial court granted that defendant’s Motion for Summary Judgment on the grounds that defendant’s written release negated any duty owed to plaintiff. The court of appeals affirmed, stating that the release was clear:
The release Benedek signed was clear, unambiguous, and explicit. It released
Pritikin from liability for any personal injuries suffered while on Pritikin’s
premises, “whether using exercise equipment or not.” The purpose for which
the release was given was to allow Benedek “access” to Pritikin’s “facilities
and services.” Benedek was injured while inside Pritikin’s facilities.
Benedek contends the release should be interpreted to apply to only to injuries
suffered while actively using Pritikin’s exercise equipment. This, however,
is not a “semantically reasonable” interpretation of the release; indeed, it is
contrary to the express language of the release. Given its unambiguous broad
language, the release reached all personal injuries suffered by Benedek on
Pritikin’s premises, including the injury Benedek suffered because of the
falling television. Id. at 1358.
In our case, plaintiffs were presented with a document specifically releasing defendant KRISTI NUNNINK from any liability for injury or death suffered by decedent while she rode horses or otherwise “use[d] Trainer’s services.” Plaintiff KARAN ERIKSSON signed that “RELEASE OF LIABILITY” document on decedent’s behalf. Decedent herself signed the document. Plaintiffs’ signed agreement with its waiver of liability expressly negates any duty defendant NUNNINK owed decedent. The release provisions contained within the express hold harmless agreement and the waiver of liability were clear, unambiguous, and explicit, and expressly released movant NUNNINK from any liability for injury or death suffered while decedent was riding a horse, including in the subject eventing competition, or otherwise using movant’s “services.” Since plaintiffs have alleged that decedent suffered her demise while riding a horse in such a competition, NUNNINK’s release bars plaintiffs’ action against Mrs. NUNNINK. Plaintiffs have no other theory of liability against Mrs. NUNNINK.
Specifically, the subject “RELEASE OF LIABILITY” agreement, signed on May 21, 2006 by plaintiff KARAN ERIKSSON and decedent Mia Eriksson, then 17 years old, states, in paragraph 5 thereof:
“5. Rider [Mia Eriksson] agrees to indemnify Trainer [KRISTI NUNNINK] 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 Trainers [sic] services or
presence upon Trainer’s facilities or property used by or with Trainer.”[Emphasis added.]
There are only two pages to this RELEASE OF LIABILITY, and no small print, as the court has seen in the exhibit (303) comprising that Release. This provision, which appears on the lead page, is ubiquitous, clear, and inclusive of all allegations in the instant Complaint. One might wonder what plaintiff and decedent thought they were agreeing to, if not exactly what was indicated in this clear provision. Paragraph 3 of the same RELEASE OF LIABILITY states, in pertinent part:
“3. Rider agrees to hold Trainer ... completely harmless and not liable and release them [sic] from
all liability whatsoever, and AGREES NOT TO SUE them [sic] 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 ..., including consequential damages, except if the damages are
caused by the direct, willful and wanton negligence of the Trainer.”[Capital letters in original.]
Plaintiff KARAN ERIKSSON signed that agreement, as did her daughter, decedent Mia Eriksson, on May 21, 2006. There is no allegation in the instant Complaint that anything that KRISTI NUNNINK did or omitted to do was “willful or wanton,” nor any facts adduced at trial from which that inference could be “reasonably deducible.” If decedent’s death did not allegedly “arise from Rider’s use of Trainer[‘s] services,” there is no other Complaint basis alleged in support of liability for KRISTI NUNNINK in this lawsuit. The allegations of the Complaint necessarily frame the issues for trial and a motion for judgment therein. The alleged injuries suffered by plaintiffs as a result of decedent’s demise while she was competing in the eventing meet were reasonably within the contemplation of both plaintiffs and Mrs. NUNNINK when the RELEASE was signed. It is clear that plaintiffs, highly educated people with professional horse riding, boarding, and competition experience, had the capacity to understand the significance of the exculpatory language in the release. See, Sanchez, supra, 68 Cal.App.4th 62, 68 (that plaintiff, a real estate officer with extensive work experience had the capacity to understand the significance of the release provisions). They even had riders and KRISTI NUNNINK sign their own release that was designed to exculpate plaintiffs for any horse incidents at Tahoe Meadows. They knowingly accepted the risks. Thus, the instant RELEASE acts as a bar to plaintiffs’ Complaint as against defendant NUNNINK.
In fact, the Court of Appeal did not find that the subject Release was invalid, unclear, or inapplicable. The Court of Appeal found that there was a factual issue of whether NUNNINK had been “reckless,” which would make the subject Release inoperable to bar the instant lawsuit against NUNNINK. That is why the Court of Appeal reversed the Summary Judgment on that issue. No facts adduced at trial establishes that KRISTI NUNNINK came even close to “reckless” conduct, as she would never have knowingly done anything to place Mia Eriksson, whom she loved dearly, in harm’s way.
7. THE STANDARD OF WILLFUL AND WANTON CONDUCT, OR RECKLESSNESS, AS DESCRIBED IN THE COURT OF APPEALS’ OPINION, HAS NOT BEEN PROVEN.
In order to find an exception to the bar to the instant lawsuit respecting defendant KRISTI NUNNINK, under the express assumption of the risk doctrine, plaintiffs had the burden of proving that KRISTI NUNNINK’ s purported negligence rose to the level of “ willful and wanton negligence,” per the trial exhibit 303 language in that release. To reach an exception to the bar to the instant lawsuit respecting defendant NUNNINK, under the primary assumption of the risk doctrine, plaintiffs had the burden of proving “ reckless” behavior by Mrs. NUNNINK, according to the existing case law, cited herein, and the Court of Appeals’ published opinion in this case, which has become law of the case.
Above the conduct of negligence, defined as failing to act as a reasonably careful person would act in the same situation (see CACI 401, et seq.), there exists a level called “ gross negligence,” which is defined in CACI 425 as “ the lack of any care or an extreme departure from what a reasonably careful person would do in the same situation in order to prevent harm to oneself or to others.” [Emphasis added.]
To begin with, plaintiffs have not proven at trial that KRISTI NUNNINK did anything that evinced a complete lack of “ any” care toward Mia Eriksson, nor that any failure to recognize an argued injury to Kory, that two veterinarians and two FEI Ground Jury members also failed to see, somehow constituted an “extreme departure from what a reasonably careful [coach or trainer] would do,” especially considering that David Johnson testified that a reasonable coach or trainer would rely on the opinions of qualified veterinarians that examined the horse, just as KRISTI NUNNINK did, by all trial evidence.
Moreover, “gross negligence” is not even the standard that plaintiffs must prove, in order to show an exception to the bar of the primary assumption of the risk doctrine (see CACI 408) or to the express assumption of the risk doctrine, under CACI 451, the terms of Exhibit 303, and the opinion from the Court of Appeals. That standard is “recklessness” or “willful and wanton negligence.”
“Wanton” or “ reckless” conduct is described as conduct by a person who may have no intent to cause harm, but who intentionally performs an act so unreasonable or dangerous that he or she knows or should know that harm will result. City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 754, fn. 4;Donnelly v. Southern Pac. Co. (1941) 18 Cal.2d 863; Black’ s Law Dictionary (5th ed. 1979). It is absurd to imagine that KRISTI NUNNINK omitted to recommend that Mia not ride Kory at Galway, or told KARAN ERIKSSON that Mia received a 50 dressage score or that Kory had been jumping all week, knowing that harm would definitely result, if Mia were allowed by plaintiffs to ride in the cross-country.
All witnesses admitted that KRISTI NUNNINK loved Mia Eriksson. It is inconceivable, and was not proven by any standard, that KRISTI NUNNINK acted improperly, knowing that Mia would be hurt.
The requisite elements of duty, breach, and causation are completely missing with respect to defendant NUNNINK. Plaintiffs’ prospective recovery as against NUNNINK is also barred by the doctrine of primary assumption of the risk, express assumption of the risk, the “open and obvious condition” doctrine, Civil Code §1714, and BAJI 3.13. In view of the instant Motin for Judgment, there is no legal basis for allowing this action to go forward against defendant NUNNINK. Plaintiffs’ claims against KRISTI NUNNINK, according to all facts adduced at trial, are simply legally insufficient to go to a jury. Thus, defendant KRISTI NUNNINK respectfully requests that this Court grant her Motion for Judgment, and enter judgment in her favor against plaintiffs on their Complaint.
Dated: January 27, 2012
SOLTMAN, LEVITT, FLAHERTY & WATTLES LLP
GARTH M. DROZIN
Attorneys for Defendant KRISTI NUNNINK
Judge Granted Motion of Judgment for Defendant Nunnink on January 30, 2012