Conway v. Holman Ranch
California Court of Appeals
UNPUBLISHED, 2003 WL 22138983
September 16, 2003
Summary of Opinion
Plaintiff Conway was injured while on a guided trail ride
on defendant’s ranch. His horse backed quickly and fell over on him. His
lawsuit was dismissed by the trial court before trial on defendant’s motion for
summary judgment based on a release of liability that Conway had signed. In
this opinion, the Court of Appeals upholds that decision. It rejects the
argument that the release did not apply to a possible indentation in the soil
surface that may have contributed to the accident.
Text of Opinion
James Conway was injured when the horse on which he was
riding at Holman Ranch slipped and fell on top of him. Mr. Conway sued Holman
Ranch (hereinafter Holman) for negligence. Holman moved for summary judgment
based on the general release that Mr. Conway had signed, and the primary
assumption of the risk doctrine. The superior court granted summary judgment for
Holman based on the general release.
* * *
Facts and Proceedings Below
On July 19, 1999, James Conway arrived at Holman Ranch to
take a guided trail ride. When he arrived at the ranch, the manager Abby Foss
gave Mr. Conway a form to sign. The form was entitled "PARTICIPATION AGREEMENT,
RELEASE, INDEMNITY AGREEMENT AND ASSUMPTION OF RISK." The agreement provided in
relevant part: "BY SIGNING THIS AGREEMENT, YOU ARE GIVING UP CERTAIN LEGAL
RIGHTS, INCLUDING THE RIGHT TO RECOVER DAMAGES IN CASE OF INJURY, DEATH OR
PROPERTY DAMAGE. READ THIS AGREEMENT CAREFULLY BEFORE SIGNING IT. YOUR SIGNATURE
INDICATES YOUR UNDERSTANDING OF AND AGREEMENT TO ITS TERMS.
"I, the undersigned, in
consideration of the services of the Holman Ranch Corp., its officers, agents or
representatives (hereinafter referred to as 'Holman Ranch'), hereby agree to
release and discharge Holman Ranch, on behalf of myself, my heirs, assigns,
personal representative and estate as follows:
"1. I understand and
acknowledge that the activity I am about to voluntarily engage in as a
participant and/or volunteer bears certain known risks and unanticipated risks
which could result in injury, death, illness or disease, physical or mental, or
damage to myself, to my property or to spectators or other third parties. The
following describes some, but not all, of those risks: [¶] A horse may, without
warning or any apparent cause, buck, stumble, fall, rear, bite, kick, run, make
unpredictable movements, spook, jump obstacles, step on a person's feet, push or
shove a person and saddles or bridles may loosen or break‑‑all of which may
cause the rider to fall or be jolted, resulting in serious injury or death.
"2. I acknowledge that
horseback riding is a dangerous activity and involves RISKS that may cause
SERIOUS INJURY AND IN SOME CASES DEATH, because of the unpredictable nature and
irrational behavior of horses, regardless of their training and past
performance.
"3. I voluntarily assume the
risk and danger of injury or death inherent in the use of the horse, equipment
and gear provided to me by Holman Ranch.
"4. I RELEASE, DISCHARGE AND
PROMISE NOT TO SUE Holman Ranch doing business under it's [sic ] own name
or any other name and/or any of its owners, officers, employees and agents
(hereinafter referred to as 'Releases'), for any loss, liability, damage, or
cost whatsoever arising our [sic ] of or related to any loss, damage, or
injury (including death) to my person or property.
"5. I release the Releases from
any claim that such Releases are or may be negligent in connection with my
riding experience or ability, including but not limited to training or selecting
horses, maintenance, care, fit or adjustment of saddles or bridles, instruction
on riding skills or leading and supervising riders.
"6. I INDEMNIFY AND SAVE AND
HOLD HARMLESS Holman Ranch and its employees and agents against any loss,
liability, damage or cost that may incur arising out of or in any way connected
with either my use of the horse and any equipment or gear provided therewith or
any acts or omissions of wranglers or other employees or agents.
*3 "7. I agree to abide
by and follow any instructions given or rules established by Holman Ranch or any
of its employees, guides or wranglers with regard to my use of the horse or any
equipment or gear provided therewith.
"8. I certify that I have
sufficient health, accident and liability insurance to cover any bodily injury
or property damage I may incur while participating in this event and to cover
bodily injury or property damage caused to a third party as a result of my
participation in this event. If I have no such insurance, I certify that I am
capable of personally paying for any and all such expenses or liability.
"9. I represent that, to the
best of my knowledge, I am not pregnant and acknowledge that Holman Ranch
prohibits pregnant women from riding unless they provide written Doctor's
permission to ride the Holman Ranch trail rides.
"10. I represent that, to the
best of my knowledge, I do not have a health condition that would make it
inadvisable for me to participate in Holman Ranch equestrian activities, and
that I am not under the influence of alcohol and drugs, which is prohibited on
Holman Ranch trail rides.
"11. The undersigned expressly
agrees that the foregoing release and waiver of liability, assumption or [sic
] risk, and indemnity agreement is governed by the State of California and is
intended to be as broad and inclusive as permitted by California law, and that
in the event any portion of this Agreement is determined to be invalid, illegal,
or unenforceable, the validity, legality and enforceability of the balance of
the Agreement shall not be affected or impaired in any way and shall continue in
full legal force and effect.
"12. I acknowledge that this
document is a contract and agree that if a lawsuit is filed against Holman Ranch
or its owner, agents, employees, guides or wranglers for any injury or damage in
breach of this contract, the Undersigned will pay all attorney's fees and costs
incurred by Holman Ranch in defending such an action.
"MY SIGNATURE BELOW INDICATES
THAT I HAVE READ THIS ENTIRE DOCUMENT, UNDERSTAND IT COMPLETELY, UNDERSTAND THAT
IT AFFECTS MY LEGAL RIGHTS, AND AGREE TO BE BOUND BY ITS TERMS. I UNDERSTAND IT
IS A PROMISE NOT TO SUE AND IS A RELEASE AND INDEMNITY FOR ALL CLAIMS."
Mr. Conway signed the release without asking Ms. Foss any
questions about the agreement. After signing the release, Mr. Conway was
provided with a horse and an instructor, Sarah Eaton. After Ms. Eaton and Mr.
Conway mounted their horses, Ms. Eaton began riding. She gestured for Mr. Conway
to follow her. As Mr. Conway was following Ms. Eaton, he passed near a tethered
pony. Ms. Eaton told him to give the pony a wide berth because it tended to kick
back. At that moment, the horse on which Mr. Conway was riding "backed up very,
very quickly at great speed." The horse slipped on "some indentation in the
ground." The horse fell and Mr. Conway's left leg was stuck underneath the
horse.
In July 2000, Mr. Conway sued Holman for negligence
for injuries he sustained during the horse's fall. He alleged that the Holman
Ranch caused the injuries by negligently maintaining a dangerous condition on
the property. [FN2]
FN2. It appears that the route
that Ms. Eaton took to leave the paddock area went between horse pens (parallel
to which was a cement drainage strip) and a riding ring to which the pony was
tethered. While the record is not clear that the horse slipped on the concrete
strip, for the purpose of this appeal we will look at the facts in the light
most favorable to Mr. Conway and infer that his horse slipped on the concrete
drainage strip. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
843.)
After Holman answered, they moved for summary judgment
based on the general release and primary assumption of the risk. Holman argued
that the risk that Mr. Conway's horse would fall was inherent in horseback
riding.
Mr. Conway opposed the motion. First, he argued the
release was unenforceable because it did not specifically mention a cement
drainage strip that ran close to where his horse had slipped. Second, he argued
that the risk of the accident was not reasonably related to the purpose of the
release. He did not argue, however, that the release was contrary to public
policy.
In addition, he argued that primary assumption of risk did
not apply because Holman increased the risks inherent in horseback riding by
having a drainage strip on its property; not warning him that the tethered pony
might challenge his horse; and not safely guiding him away from these dangers.
The superior court granted Holman's motion for summary
judgment on the "grounds that [Mr. Conway] expressly assumed the risk of the
injuries incurred in this incident by signing a release." The court found that
Mr. Conway signed a "release ... in which [he] expressly assumed the risk of
being injured while horseback riding at HOLMAN RANCH and expressly waived his
right to file a lawsuit for such injuries."
Scope of Review
A "motion for summary judgment shall be granted if all the
papers submitted show that there is no triable issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law." (Code Civ.
Proc., § 437c, subd. (c).)
To be entitled to judgment as a matter of law, the moving
party must show by admissible evidence that the "action has no merit or that
there is no defense" thereto. (§ 437c, subd. (a).) A defendant moving for
summary judgment meets this burden by showing that one or more elements of the
cause of action cannot be established or that there is a complete defense to the
action. (§ 437c, subd. (o)(2); Addy v. Bliss & Glennon (1996) 44
Cal.App.4th 205, 213‑214; Aguilar v. Atlantic Richfield Co., supra,
(2001) 25 Cal.4th 826, 849‑850, 853‑854.) Once the defendant makes this showing,
the burden shifts to the plaintiff to show that a triable issue of material fact
exists as to that cause of action or defense. (§ 437c, subd. (o)(2).)
In a negligence action, "the existence of a duty of care
owed by a defendant to a plaintiff is a legal issue that is particularly
amenable to resolution on summary judgment. [Citation.] A defendant in a
negligence action may obtain summary judgment by demonstrating that the evidence
shows it owed no duty to the plaintiff that could have been breached.
[Citation.]" (Vournas v. Fidelity Nat. Tit. Ins. Co. (1999) 73
Cal.App.4th 668, 672.)
While the existence of duty is a question of law for the
court, "[s]o is the interpretation of a written instrument where the
interpretation does not turn on the credibility of extrinsic evidence.
[Citation.]" (Allabach v. Santa Clara County Fair Association, Inc., et al.,
supra, 46 Cal.App.4th 1007, 1011.)
Discussion
Relying on Harrold v. Rolling J Ranch (1993) 19
Cal.App.4th 578 (Harrold ), [FN4] Mr. Conway argues that an operator of
a commercial horse ranch who offers horseback riding has a duty to insure that
the horses, equipment, and facilities it supplies do not increase the risk of
injury above the level inherent in riding. He suggests that there was a triable
issue of fact as to what constitutes ordinary care in this case because the
cement drainage strip increased the risk associated with riding.
FN4. In Harrold, supra,
19 Cal.App.4th 578, the plaintiff, while riding at the Rolling J stables,
decided to remove her jacket. While both arms were still in the sleeves and
caught behind her, the horse spooked and bucked. She was thrown to the ground
landing on her tailbone. (Id. at p. 582.) Plaintiff sued alleging that
the defendants were negligent in failing to warn her of the horse's unstable
temperament; negligently maintained their premises; and willfully failed to warn
of the property's dangerous condition. (Ibid.) Summary judgment was
granted in favor of the defendants. (Id. at p. 583.) The Second District
Court of Appeal affirmed, but concluded that commercial operators of
recreational facilities owe a duty of care to their patrons to ensure that the
facilities and related services that they provide do not increase the risk of
injuries inherent in the sport or recreational activity itself. (Id. at
p. 586.)
Mr. Conway's reliance on Harrold is misplaced.
Harrold was an implied assumption of the risk case. Thus, it is
different from cases involving express assumption of the risk.
"Although in the academic literature 'express assumption
of risk' often has been designated as a separate, contract‑based species of
assumption of risk distinct from both primary and secondary assumption of risk
(see e.g., Prosser & Keeton on Torts (5th ed.1984) § 68, p. 496), cases
involving express assumption of risk are concerned with instances in which, as a
result of an express agreement, the defendant owes no duty to protect the
plaintiff from an injury‑causing risk. Thus in this respect express assumption
of risk properly can be viewed as analogous to primary assumption of risk. One
leading treatise describes express assumption of risk in the following terms:
'In its most basic sense, assumption of risk means that the plaintiff, in
advance, has given his express consent to relieve the defendant of an
obligation of conduct toward him, and to take his chances of injury from a known
risk arising from what the defendant is to do or leave undone.... The result
is that the defendant is relieved of legal duty to the plaintiff; and being
under no duty, he cannot be charged with negligence.' (Prosser & Keeton on
Torts, supra, § 68, pp. 480‑481, fn. omitted, second italics added.)
"Since Li. [v. Yellow Cab Co. (1975) 13 Cal.3d
804], California cases uniformly have recognized that so long as an express
assumption of risk agreement does not violate public policy (see e.g., Tunkl
v. Regents of University of California (1963) 60 Cal.2d 92, 95‑101 [32
Cal.Rptr. 33, 383 P.2d 441, 6 A.L.R.3d 693] ), such an agreement operates to
relieve the defendant of a legal duty to the plaintiff with respect to the risks
encompassed by the agreement and, where applicable, to bar completely the
plaintiff's cause of action. (See, e.g., Madison v. Superior Court (1988)
203 Cal.App.3d 589, 597‑602 [250 Cal.Rptr. 299], and cases cited.)" (Knight
v. Jewett (1992) 3 Cal.4th 296, 308‑309, fn 4.)
Thus, the dispositive issue in this case is whether the
release that Mr. Conway signed applies to this accident. Accordingly, we will
review the release de novo to determine whether Holman was entitled to judgment
as a matter of law. (Allabach v. Santa Clara County Fair Association, Inc.,
supra, 46 Cal.App.4th at p. 1013 (Allabach ).)
"[W]hat the language of [a release] means is a 'matter of
interpretation for the courts and not controlled in any sense by what either of
the parties intended or thought its meaning to be....' [Citation.]" (Citizens
Utilities Co. v. Wheeler (1957) 156 Cal.App.2d 423, 432.) Mr. Conway's
subjective understanding that he thought the release applied to what might
happen " 'up the trail' not in the paddock area," without more, does not affect
our analysis.
As this court has said before, " '[t]he standards which a
release such as this one must meet are well established. "To be effective, a
release need not achieve perfection...." [Citation.] Thus, "[a]s long as the
release constitutes a clear and unequivocal waiver with specific reference to a
defendant's negligence, it will be sufficient. [Citations.] For it to be valid
and enforceable, a written release exculpating a tortfeasor from liability for
future misconduct must be clear, unambiguous and explicit in expressing the
intent of the parties. [Citation.] If a tortfeasor is to be released from such
liability the language used 'must be clear, explicit and comprehensible in each
of its essential details. Such an agreement, read as a whole, must clearly
notify the prospective releasor or indemnitor of the effect of signing the
agreement.' [Citation.]" [Citation.]' [Citation.]" (Allabach, supra, 46
Cal.App.4th at p. 1015.)
As we have noted, express assumption of the risk is
analogous to primary implied assumption of the risk to the extent that it
relieves the defendant of a duty. However, the risks assumed are not necessarily
only those inherent in the activity. The risks assumed are expressly defined by
the agreement between the parties. (Allabach, supra, 46 Cal.App.4th at p.
1013.)
The release that Mr. Conway signed released Holman from
negligence claims. Specifically, the release states: "I release the Releases
from any claim that such Releases are or may be negligent in connection with my
riding experience or ability, including but not limited to training or selecting
horses, maintenance, care, fit or adjustment of saddles or bridles, instruction
on riding skills or leading and supervising riders." Furthermore, the release
requires the signor to "voluntarily assume the risk and danger of injury or
death inherent in the use of the horse, equipment and gear provided to [him or
her] by Holman Ranch."
Mr. Conway contends that the release is ambiguous because
it does not specifically warn that Holman might negligently maintain their
premises. He argues that the release "disclaims liability for injuries related
to horseback riding," but "does not clearly express an intent to exculpate
[Holman] for [the] negligent maintenance of [the] premises."
We are not persuaded by Mr. Conway's argument. The release
warns that a horse "may, without warning or any apparent cause, ... fall ...
[,] which may cause the rider to fall or be jolted, resulting in serious injury
or death." The law does not require that the release specify every conceivable
scenario that could lead to the horse falling. (See Paralift, Inc. v.
Superior Court (1993) 23 Cal.App.4th 748; Sanchez v. Bally's Total
Fitness Corp. (1998) 68 Cal.App.4th 62, 69; Saenz v. Whitewater Voyages,
Inc. (1990) 226 Cal.App.3d 758, 765.)
Moreover, the release contains a clause releasing Holman
from negligence claims relating to "leading and supervising riders." Thus, the
release specifically and unambiguously warned of the risks that ultimately lead
to Mr. Conway's injuries. That is, that the horse upon which Mr. Conway was
seated might fall as a result of the negligence of Ms. Easton in leading him.
Further, the release expressed Mr. Conway's consent to release Holman from "any
loss, liability, damage or cost that may incur [sic ] arising out of or
in any way connected with either [his] use of the horse and any equipment or
gear provided therewith or any acts or omissions of wranglers or other employees
or agents."
Since Mr. Conway expressly assumed the risk that led to
his injury and expressly released Holman, Holman owed no duty to Mr. Conway.
Thus, Holman was entitled to summary judgment.
Disposition
The judgment is affirmed.
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