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.
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.)
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.
The judgment is affirmed.
|Phoenix, AZ - Home Office||(602) 992-1570||Toll Free||(800) 874-9191|
|Del Mar, CA||(619) 866-4482||Portland, OR||(503) 608-4820|
|FAX||(602) 992-8327||FAX 2||(480) 452-0593|
|Mailing Address: 12424 N. 32nd Street #101 Phoenix, AZ 85032||General Information: email@example.com|
|Customer Service: firstname.lastname@example.org||Entertainment: email@example.com|
|Webmaster: firstname.lastname@example.org||Mortality: email@example.com|
Allen Financial Insurance Group © Copyright 2007, 2012