September 20, 2007
APPEAL from a judgment of the Superior Court of Fresno County. M. Bruce Smith, Judge
The opinion of the court was delivered by: Levy, J.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
Eighteen-year old Shana Eriksson (Shana) was tragically killed while riding a horse on the California State University, Fresno (CSUF) campus. Shana was a CSUF student and a member of the CSUF intercollegiate equestrian team.
In this appeal Shana's parents, appellants Stan Eriksson and Karan Eriksson, challenge the trial court's conclusion that their action against CSUF is barred by the primary assumption of risk doctrine. According to appellants, CSUF neither adequately supervised Shana nor warned her of the dangers of riding near livestock on the CSUF campus, and thus increased the risk of harm inherent in the sport of horseback riding.
As discussed below, CSUF had no duty to supervise and control Shana while she rode her own horse during her free time. Further, the cause of the accident, a horse losing its footing after being startled, is one of the inherent risks of horseback riding. Thus, CSUF owed no duty of care to Shana with respect to this accident. Accordingly, the judgment will be affirmed.
When she arrived as a freshman at CSUF in August 2003, Shana was an accomplished equestrian competitor. Shana desired to continue competing through college and had been actively recruited by CSUF.
Shortly before the beginning of the fall term, the equestrian team's head coach, Megan McGee, resigned. The former assistant coach, Dana Harris, was acting as an interim coach. Nevertheless, official riding practices were not to begin until October 1, 2003, after a new head coach was hired. In August, equestrian team members were informed "You may ride before the new coaches are hired, but you cannot receive coaching instruction from any of the current Equestrian staff. However, you may receive instruction from the current staff related to supervisory and safety concerns."
CSUF maintains a stable facility on campus known as the Student Horse Center. In September 2003, 55 horses were housed there, including 34 student-owned horses. A student does not have to be a member of the equestrian team to lease space at this facility.
Students boarding their horses at the Student Horse Center are required to comply with the rules contained in a boarding agreement. The rules in effect in August 2003 required that "Horses must be out of their pens or stalls a minimum of three hours per week. Horses may be ridden, lunged, hand-walked, turned out, or provided with some opportunity for exercise during this time." Arenas were available on campus but were not always in usable condition. The boarding agreement limited riding on campus as follows:
"No riding on academic campus. No riding in O'Neill Park or on any mowed grass areas around the farm. You may ride on the roads through the animal units and around the fields on the dirt roads. Do not ride in the fields when they are planted. Do not ride on the farm roads after they have been freshly oiled." (Boldface omitted.)
Shana brought Noel, a horse owned by her mother, to CSUF. Noel was boarded at the Student Horse Center.
On September 23, 2003, Shana and two other freshman members of the equestrian team took their horses from the Student Horse Center to go on a trail ride. A fellow student gave them directions to the orchard area but Shana and her companions apparently misunderstood these directions. The three students walked their horses on the campus. They rode by some sheep pens and across a road. After leaving the road, they were riding by pens of cattle when a group of cattle charged the fence. This caused all three horses to turn to try to run away from the cattle. While Shana was attempting to control her horse, the horse appeared to lose its footing. Shana was thrown from her horse and the horse fell on its side, momentarily pinning Shana. Shana died as a result of her injuries.
Appellants filed the underlying complaint stating causes of action against CSUF for negligence, premises liability, and wrongful death. CSUF moved for summary judgment on the ground that it owed no duty of care by virtue of the primary assumption of risk doctrine. The trial court granted the motion and entered judgment in favor of CSUF. The court found that CSUF had met its burden of establishing that appellants' complaint was completely barred as a matter of law by the primary assumption of risk defense.
Appellants contend they made a prima facie showing that secondary assumption of risk, not primary assumption of risk, was the applicable doctrine. According to appellants, CSUF increased the risks inherent in horseback riding for Shana in that there was no competent adult supervision of the equestrian program from the time Shana arrived on campus until the subject accident; no one was present to instruct or warn Shana where she could safely ride on campus; and CSUF did not post or provide a reasonably safe trail for access to the orchard riding area. Appellants further argue that CSUF failed to meet its burden of showing what risk it was that Shana reasonably assumed.
1. The Evidence Supports Application of the Primary Assumption of Risk Doctrine
The trial court found that CSUF was entitled to summary judgment because it had established a complete defense to appellants' complaint, i.e., CSUF owed no duty to Shana under the primary assumption of risk doctrine. Duty, being a question of law, is particularly amenable to resolution by summary judgment. (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 465.) On review, we consider the evidence and the parties' arguments de novo. (Bushnell v. Japanese-American Religious & Cultural Center (1996) 43 Cal.App.4th 525, 528.)
Persons generally owe a duty of due care not to cause an unreasonable risk of harm to others. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.) However, some activities and, specifically, many sports, are inherently dangerous. (Ibid.) Accordingly, in the sporting context, the considerations of policy and the question of duty necessarily become intertwined. (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161.) California's abandonment of contributory negligence in favor of comparative negligence led to the need to redefine the assumption of risk doctrine. (Avila v. Citrus Community College Dist., supra, 38 Cal.4th at p. 161.) As observed by the court in Knight v. Jewett (1992) 3 Cal.4th 296, there are two species of assumption of risk, primary and secondary. (Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at p. 1003.) Primary assumption of risk arises when, as a matter of law and policy, a defendant owes no duty to protect a plaintiff from particular harms. (Avila v. Citrus Community College Dist., supra, 38 Cal.4th at p. 161.) In contrast, in instances of secondary assumption of risk, the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters the risk attendant on the defendant's breach of that duty. (Knight v. Jewett, supra, 3 Cal.4th at p. 308.) Here, the issue is whether primary assumption of risk applies.
In the sporting context, primary assumption of risk precludes liability for injuries arising from those risks deemed inherent in the sport. As a matter of law, others have no legal duty to eliminate those risks or otherwise protect a sports participant from them. (Avila v. Citrus Community College Dist., supra, 38 Cal.4th at p. 161.) However, others generally do have a duty not to increase the risk of harm beyond what is inherent in the sport. (Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at p. 1004.) If it is determined that the actions of a defendant did increase the risk of harm above that inherent in the sport, the issue becomes one of secondary assumption of risk. (Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal.App.4th 703, 712.)
Under the primary assumption of risk duty approach, a court need not ask what risks a particular plaintiff subjectively knew of and chose to encounter. Rather, the court must evaluate the fundamental nature of the sport and the defendant's role in or relationship to that sport. (Avila v. Citrus Community College Dist., supra, 38 Cal.4th at p. 161.) Duties with respect to the same risk may vary according to that role. (Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at p. 1004.) For example, coparticipants have a duty not to act recklessly, outside the bounds of the sport, and coaches and instructors have a duty not to increase the risks inherent in sports participation. (Avila v. Citrus Community College Dist., supra, 38 Cal.4th at p. 162.) The California Supreme Court has also noted, in dicta, that those responsible for maintaining athletic facilities have a similar duty not to increase the inherent risks. (Ibid.) With intercollegiate sports competition, the host college or university owes a duty to home and visiting participants alike not to increase the risks inherent in the sport. (Ibid.)
Appellants concede that the activity in which Shana was participating, horseback riding, "certainly had risks." As noted by the court in Harrold v. Rolling J Ranch (1993) 19 Cal.App.4th 578, "There is no doubt horseback riding, even the rather tame sport of riding on the back of walking horses in an afternoon trail ride, carries some inherent risk of injury. A horse can stumble or rear or suddenly break into a gallop, any of which may throw the rider." (Id. at p. 587.) Nevertheless, appellants argue that CSUF increased this inherent risk by failing both to adequately supervise the equestrian program and to warn Shana of the risks to a rider on the campus, i.e., the possibility that penned cattle will charge and startle or "spook" a horse.
At the time of the accident Shana was not participating in an official riding practice. Rather, this competent and experienced horsewoman was voluntarily riding her own horse on her own time. Colleges and universities owe no general duty of care to supervise student activities. (Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1031.) Adult students have the right to control and regulate their own lives. (Ibid.) Thus, contrary to appellants' position, CSUF owed no general duty to supervise Shana or to ensure her welfare while she voluntarily rode on campus. (Cf. Avila v. Citrus Community College Dist., supra, 38 Cal.4th at p. 162.)
Similarly, CSUF did not increase the inherent risks of horseback riding by failing to warn Shana that a horse might be startled or "spooked" by livestock on campus. "`It is common knowledge that all horses ... are liable to be frightened by any unaccustomed ... appearances and noises in unaccustomed situations; that they are susceptible to fright from the most trivial things; that their vagaries are unforeseeable; and that it is practically impossible to guard against them.'" (Parsons v. Crown Disposal Co. supra, 15 Cal.4th at p. 468.) The breadth of the list of noises and things that might scare or spook a horse is rivaled only by the range of socially useful activities that may produce such noises and provoke such fright. (Id. at pp. 474- 475.) For example, a shadow, another animal such as a snake or a dog, a loud noise, a bicycle, or a plastic bag can frighten a horse. (Cf. Harrold v. Rolling J. Ranch, supra, 19 Cal.App.4th at p. 588.) Accordingly, no trail on this urban campus would be safe from things that could cause a horse to spook.
Appellants claim Shana's horse "panicked" rather than "spooked." However, whether characterized as spooked or panicked, sudden movements of the horse are inherent in horseback riding. (Harrold v. Rolling J. Ranch, supra, 19 Cal.App.4th at p. 588.) When Shana's horse was frightened by the cattle and stumbled, it was acting like a horse. (Ibid.) That a horse may be spooked or panicked on any trail is an inherent risk of the sport.
Appellants further contend that, as an accomplished rider, Shana did not assume the risk that a leisurely trail ride would become a deadly venture. However, the primary assumption of risk test is objective. (Cheong v. Antablin (1997) 16 Cal.4th 1063, 1068.) It "depends on the nature of the sport or activity in question and on the parties' general relationship to the activity." (Knight v. Jewett, supra, 3 Cal.4th at p. 313.) The particular plaintiff's subjective knowledge and awareness of the risk is irrelevant. (Id. at p. 315.)
Moreover, the mechanics of this accident, i.e., being thrown by a frightened horse, is an inherent risk of the activity. Even on a leisurely ride, the possibility that a horse will stumble or spook when confronted by a frightening event is inherent in that activity. (Harrold v. Rolling J Ranch, supra, 19 Cal.App.4th at p. 588.) Being thrown off the horse is one of the most obvious risks of horseback riding. (Guido v. Koopman (1991) 1 Cal.App.4th 837, 842.) The fact that Shana's fall tragically resulted in fatal head injuries does not change the analysis. Death from being thrown off a horse may be rare but the general type of accident is common.
In sum, being thrown by a spooked horse is an inherent risk of horseback riding. CSUF did not increase this risk. Accordingly, the trial court properly concluded that CSUF owed no duty to Shana under the primary assumption of risk doctrine.
2. The Proposed Sur-Reply Evidence did not Create a Triable Issue of Material Fact
Appellants submitted a "sur-reply" to CSUF's reply memorandum. This sur-reply consisted of a declaration from equestrian expert David Johnson. Johnson stated that this accident was more than falling off of a horse. He admitted that falling off a "`spooked'" horse is not an uncommon event but opined that having a panicked horse fall on the rider "is very uncommon and almost unheard of in equestrian circles." According to Johnson, CSUF increased the risk that the young horses would panic and respond as a herd by permitting them to trail ride through unfamiliar areas without a supervisor or coach on a mature horse accompanying them.
The trial court refused to consider this evidence. Appellants contend this was an abuse of discretion.
However, this proposed "sur-reply" evidence did not create a triable issue of material fact. As discussed above, CSUF did not have a duty to supervise these three college students riding their own horses on their own time. Further, although the consequence of the accident was unusual, it arose from an inherent risk of horseback riding, i.e., being thrown by a frightened horse. Thus, the trial court's refusal to consider this evidence was not prejudicial. CSUF owed no duty to protect Shana from the risks inherent in horseback riding or to eliminate risk from that activity as a matter of law.
The judgment is affirmed.
Costs on appeal are awarded to respondent.
WE CONCUR: Wiseman, Acting P.J., Gomes, J.