PARSONS v. CROWN DISPOSAL COMPANY

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Court of Appeal, Second District, Division 7, California.

Darrell PARSONS, Plaintiff and Appellant, v. CROWN DISPOSAL COMPANY, Defendant and Respondent.

No. B083427.

Decided: August 21, 1995

Robert A. Brown, Glendale, for plaintiff and appellant. Gregory F. Stannard, Santa Monica, for defendant and respondent.

Plaintiff suffered serious injuries when he was thrown from his horse while riding on a bridle trail.   Plaintiff alleges defendant is liable for his injuries because his horse was spooked by the loud noise defendant's truck made collecting trash from rubbish bins located close to the bridle trail.   The trial court granted summary judgment to defendant on the ground plaintiff's claim was barred by the doctrine of “primary” assumption of the risk, i.e., defendant owed no duty to plaintiff.   We conclude, however, the facts presented on summary judgment showed at best a triable issue of “secondary” assumption of the risk.   Therefore, we reverse.

FACTS AND PROCEEDINGS BELOW

On a Monday morning at approximately 10:00 a.m., plaintiff Darrell Parsons set out for a ride on his horse, Poco, down a bridle path which is either on the property of, or adjacent to, the Los Angeles Equestrian Center in Burbank.   The bridle path runs within ten feet of the back of a restaurant which faces Riverside Drive and is separated from the restaurant's back parking lot by a chain link fence.   The restaurant's rubbish containers are kept in this back lot approximately six inches from the fence.   At about the same time Parsons commenced his horseback ride, an employee of defendant Crown Disposal Company began emptying the restaurant's rubbish containers into his truck.   Crown's truck was equipped with a mechanical forklift which enabled the driver to empty the containers by lifting them over the top of the truck and dumping the trash into the well behind the cab.

According to Parsons, he had just emerged through the Equestrian Center's gateway and had ridden his horse to within ten feet of the trash truck when the truck's operator began to lift one of the containers.   The sound of the container being emptied frightened the horse causing it to throw Parsons to the ground.   Parsons testified at his deposition that on previous rides he had noticed the restaurant's trash containers next to the fence but had never seen a truck collecting trash there.   He also testified he always walked his horse in the area where the accident occurred “[b]ecause it's a very dangerous area.”   Asked what was dangerous about it, Parsons replied automobile traffic nearby made it dangerous.   No traffic crossed the bridle path, however.

There is no evidence the trash truck operator was aware of Parsons' presence on the trail when he began emptying the container.   The operator was aware, however, the restaurant's back lot abutted a bridle path frequently used by horseback riders and that horses could “get scared” by his truck.   Furthermore, Crown was aware of a previous incident in which its trash collecting had spooked horses on this trail.   Crown's supervisor for this route testified in his deposition he had formerly collected trash from this restaurant.   On one occasion while he was picking up the trash in the manner described above, he saw some horses on the trail “kind of [get] scared.”   The horses “turned around and took off running.”   The supervisor also testified the trash containers were in the same location on that occasion as they were on the day Parsons was injured.

Crown moved for summary judgment on the ground the doctrine of “primary” assumption of the risk provided it a complete defense to Parsons' action;  in other words it owed Parsons no duty of care in relation to the activities in which they were involved.   The trial court granted the motion and Parsons appeals from the subsequent judgment.

DISCUSSION

I. STANDARD OF REVIEW

Where the defendant moves for summary judgment, its declarations and admissible evidence must either establish a complete defense to the plaintiff's action or conclusively negate a necessary element of the plaintiff's case and demonstrate, under any cause of action, no material issue of fact requires resolution by trial.  (Harrold v. Rolling “J” Ranch (1993) 19 Cal.App.4th 578, 583–584, 23 Cal.Rptr.2d 671.)   In a case such as this, involving a plaintiff injured while engaged in a recreational activity, “the question of the existence and scope of a defendant's duty of care is a legal question which depends on the nature of the sport or activity in question and on the parties' general relationship to the activity, and is an issue to be decided by the court, rather than the jury.”  (Knight v. Jewett (1992) 3 Cal.4th 296, 313, 11 Cal.Rptr.2d 2, 834 P.2d 696.)   Thus, as pointed out in Knight, the question of “primary” assumption of the risk is particularly amenable to resolution by summary judgment.   Summary judgment for the defendant is proper only if the defendant is legally entitled to raise the assumption of the risk defense and has conclusively established all of the necessary elements of that defense.  (Harrold, supra, 19 Cal.App.4th at p. 584, 23 Cal.Rptr.2d 671.)   The trial court's determination of these questions is, of course, subject to our independent review.  (Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127, 131, 40 Cal.Rptr.2d 249.)

II. DEFENDANT OWED A DUTY OF CARE NOT TO INCREASE THE RISKS TO A HORSEBACK RIDER OVER AND ABOVE THOSE INHERENT IN THE ACTIVITY.

Since Knight v. Jewett, numerous Court of Appeal opinions have considered the question of tort liability to participants in sports and recreational activities under the doctrine of “primary assumption of the risk” which, as explained below, is another way of asking whether the defendant owed a duty of care to the plaintiff.  (Knight, supra, 3 Cal.4th at p. 308, 11 Cal.Rptr.2d 2, 834 P.2d 696.)   Three of these cases involved horseback riding.  (Tan v. Goddard (1993) 13 Cal.App.4th 1528, 17 Cal.Rptr.2d 89;  Galardi v. Seahorse Riding Club (1993) 16 Cal.App.4th 817, 20 Cal.Rptr.2d 270;  Harrold v. Rolling “J” Ranch, supra, 19 Cal.App.4th 578, 23 Cal.Rptr.2d 671.)   All involved either coparticipants in the sport or those who furnished the facilities or means for engaging in the activity.   The present case, however, involves a defendant who was a non-participant in the plaintiff's activity.   The issue before us is whether a trash collection company collecting trash close to a bridle path owes a duty of care to avoid frightening horses being ridden on the path.

Because our opinion in Harrold involved primary assumption of the risk in the context of a plaintiff who was horseback riding for pleasure, it provides a natural starting point for the analysis in the present case.

 The plaintiff in Harrold was injured when the rented horse she was riding suddenly bucked and threw her to the ground.   Plaintiff sued the operator of the horse stable alleging negligence in failing to warn her of this horse's unsteady temperament and tendency to throw riders and in failing to provide her with a “safe” horse to ride.   Our opinion began with a summary of the defense of assumption of the risk as defined by the plurality opinion in Knight.   As conceived by the plurality in Knight, the defense of assumption of the risk is really two defenses:  “primary” assumption of the risk and “secondary” assumption of the risk.   “Primary” assumption of the risk is an absolute defense to the action.   It arises only when public policy dictates the class of which defendant is a member should owe no duty of care to the class of which a plaintiff is a member in relation to the activity in which they are involved.  “Secondary” assumption of the risk, on the other hand, is not a complete defense to the action.   It arises when the defendant owes a duty to the plaintiff even though the plaintiff knowingly encounters a risk of injury caused by the defendant's breach of that duty.  (Knight, supra, 3 Cal.4th at p. 308, 11 Cal.Rptr.2d 2, 834 P.2d 696.)  “Secondary” assumption of the risk is merged into the doctrine of comparative fault so that the trier of fact, in apportioning loss resulting from the injury, may consider the relative responsibility of the parties.   (Id. at pp. 308, 315, 11 Cal.Rptr.2d 2, 834 P.2d 696.)   Thus, in primary assumption of the risk cases, “the inquiry begins—and ends—with an analysis of whether the defendant owed a duty to a plaintiff after assessing factors such as those listed in Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561.”  (Harrold, supra, 19 Cal.App.4th at p. 584, 23 Cal.Rptr.2d 671;  emphasis in original.)  “ ‘[T]he scope of the legal duty owed by a defendant frequently will also depend on the defendant's role in, or relationship to, the sport.’ ”  (Id. at p. 585, 23 Cal.Rptr.2d 671.)   Where the defendant's role is that of a commercial operator supplying the facilities or means for engaging in the activity, a duty exists to use due care not to increase the risks to a participant over and above those inherent in the activity itself.  (Id. at p. 586, 23 Cal.Rptr.2d 671.)

 Applying this duty analysis to the facts in Harrold, the majority and dissenting opinions agreed a horse-renting facility owed a duty “to supply horses which are not unduly dangerous [and] to warn the patrons renting a given horse if that horse has evidenced a predisposition to behave in ways which add to the ordinary risk of horse riding.”  (19 Cal.App.4th at pp. 587, 589, 23 Cal.Rptr.2d 671.)   A horse-renting facility does not, however, owe a duty to supply only “ideal” horses or to warn patrons a “horse acts as a horse.”   (Id. at pp. 588, 591, 23 Cal.Rptr.2d 671.)   The majority concluded that one prior incident of the subject horse having spooked did not rise to the level of a dangerous propensity but only to the level of a “ ‘horse behaving as a horse’ ”;  therefore the stable was under no duty to give a warning to plaintiff under the undisputed facts in that case.  (Id. at p. 588, 23 Cal.Rptr.2d 671.)   In the majority's view, imposing a duty under these facts would be “tell[ing] the commercial world that strict liability is imposed for any action of a horse inherent in horseback riding, with the concomitant result that in all probability all commercial horseback riding will cease because of the risk involved to those that are self-insured or by reason of the prohibitive expense to obtain liability insurance for such an enterprise.”   (Ibid.)  The dissent took the view a triable issue of fact existed as to whether the subject horse had dangerous propensities about which the stable had a duty to warn Ms. Harrold.  (Id. at p. 591, 23 Cal.Rptr.2d 671.)

As previously noted, the present case, although arising in the context of recreational horseback riding, does not involve the duties of coparticipants or operators of horse-riding stables.   Rather, it involves two parties independently pursuing their own activities—one recreational, the other commercial.   Nevertheless, certain of the principles applied in Knight and Harrold are applicable to the present case.

This court's opinion in Harrold observed, “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.   But this does not necessarily mean the commercial operator of the horse-riding facility owes no duty of care to those who rent its horses and can never be liable for injuries because a horse stumbles, rears, or suddenly breaks into a gallop.”   Rather, “commercial operators of sports and recreational facilities owe a duty of care to their patrons ․ to ensure the facilities and related services which are provided do not increase the risk of injury above the level inherent in the sport or recreational activity itself.”  (19 Cal.App.4th at pp. 586–587, 23 Cal.Rptr.2d 671 emphasis in original.)

The duty to avoid increasing the risk of injury above the level inherent in the activity is by no means limited to commercial operators of sports and recreational facilities.   As pointed out in Knight v. Jewett, supra, 3 Cal.4th at p. 315, 11 Cal.Rptr.2d 2, 834 P.2d 696, “[a]lthough defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.”  (Italics added.)   The duty to sports participants recognized in Knight derives from a long recognized duty to avoid affirmative acts which increase the peril of another.   The Restatement of Torts, Second (1965) Section 303 states, “An act is negligent if the actor ․ realizes or should realize that it is likely to affect the conduct of another, a third person, or an animal in such a manner as to create an unreasonable risk of harm to the other.”  (Italics added.)   And, as a leading text on tort law observes, “If there is no duty to go to the assistance of a person in difficulty or peril, there is at least a duty to avoid any affirmative acts which make his situation worse․   There may be no duty to take care of a man who is ill or intoxicated, and unable to look out for himself;  but it is another thing entirely to eject him into the danger of a street or railroad yard;  and if he is injured there will be liability.”  (Prosser & Keeton on Torts (5th ed. 1984) p. 378.)   Prior to Knight, our Supreme Court recognized breach of duty may be an affirmative act which places the person in peril or increases the risk of harm as in McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 260–262, 74 Cal.Rptr. 389, 449 P.2d 453 where a police officer investigating an accident directed the accident victim to follow him into the middle of the street where the victim was struck by another car.

The duty to avoid increasing the risk of harm to a horseback rider was specifically recognized in Eddy v. Stowe (1919) 43 Cal.App. 789, 791, 185 P. 1024.   In that case, plaintiff was riding his horse along the shoulder of a highway when the horse became frightened by a passing motorcycle.   Bucking and lunging, the horse moved onto the center of the highway where it was struck by defendant's automobile.   Plaintiff was thrown from the horse and suffered serious injuries.   Although defendant saw the horse 200 feet ahead and saw that it was “frightened [and] jumping around,” he made no effort to turn, slow down or stop.   Affirming the judgment for plaintiff, the Court of Appeal stated, “With the knowledge that plaintiff's horse was frightened, it was [defendant's] duty to keep a lookout ahead, and as he approached the horse and rider, to note the movements of the horse, and when he saw, or by the exercise of reasonable caution could have seen, that the horse was under excitement, bucking and manifesting unmistakable fright, ordinary care required him to slow up, stop his machine, or do whatever was required to relieve respondent of his perilous position.”  (Id. at p. 795, 185 P. 1024.)

Crown argues that while there may be a duty not to increase the risk of injury above the level inherent in a particular recreational activity, the risk a rider might be thrown from a horse spooked by the noise from a truck is inherent in the activity of recreational horseback riding in an urban environment.   Relying on O'Donoghue v. Bear Mountain Ski Resort (1994) 30 Cal.App.4th 188, 35 Cal.Rptr.2d 467, Crown argues a horseback rider, like a downhill skier, takes his environment as he finds it.   In O'Donoghue, the plaintiff was injured when he skied off the marked trail and fell into a ravine filled with boulders.   In his negligence action against the ski resort, the trial court granted the defendant's motion for summary judgment under the doctrine of primary assumption of the risk.   The Court of Appeal affirmed.   The appellate court observed downhill skiing is an outdoor sport over mountainous terrain in which skiers can expect to encounter moguls, trees, snow-covered stumps and numerous other conditions and obstacles which must be considered inherent in the sport of skiing.   The court also noted plaintiff deliberately went off the trail into the natural forested area.  “It is an inherent risk of skiing that a skier might encounter hazardous natural forest obstacles, such as rough terrain, trees, rocks and ravines․   Defendant cannot be expected to change the entire mountain to insure plaintiff's safety.   Defendant had no duty to protect plaintiff from the inherent risks of the sport, which plaintiff is deemed to have knowingly encountered.”  (Id. at p. 193, 35 Cal.Rptr.2d 467.)

Crown's contention is that just as a person skiing down a mountain can expect to encounter moguls, tree stumps, bare spots and other conditions which could cause injury, a person riding a horse in an urban area like Los Angeles can expect to encounter not only trash trucks but ambulances, fire trucks, backfiring cars, motorcycles and helicopters all of which have the capacity to make noise loud enough to frighten a horse and cause it to throw its rider.   This attempt to draw an analogy between the risks inherent in downhill skiing and the risks inherent in horseback riding contains several flaws.

Unlike the skier in O'Donoghue who left the ski run and ventured off into the wilderness, Parsons did not deviate from the marked trail intended for horseback riding.   Furthermore, as the court observed in Knight v. Jewett, supra, 3 Cal.4th at p. 315, 11 Cal.Rptr.2d 2, 834 P.2d 696, “although moguls on a ski run pose a risk of harm to skiers that might not exist were these configurations removed, the challenge and risks posed by the moguls are part of the sport of skiing․”   The challenge and risks posed by trash trucks, however, are not part of the sport of horseback riding.

The fact Parsons was riding his horse in or at least near an “urban environment” is irrelevant to the question of duty.   Even if Parsons had been riding Poco on Riverside Drive instead of a bridle path, Crown would have owed Parsons a duty of care to avoid frightening or striking horse and rider.  (Connolly v. Pre–Mixed Concrete Co. (1957) 49 Cal.2d 483, 485, 319 P.2d 343 [horse being ridden on highway frightened by noise of cement mixer on defendant's truck];  Johnson v. City of Santa Monica (1937) 8 Cal.2d 473, 475, 66 P.2d 433 [truck driver owed duty of care to avoid striking horse and rider];  Eddy v. Stowe, supra, 43 Cal.App. at p. 795, 185 P. 1024 [driver of automobile who saw horse bucking and jumping in center of highway owed duty of care not to increase existing risk of harm to rider].) 1  Although it is set in an urban environment, the Griffith Park area where the bridle path is located is a large undeveloped area frequented by hikers and horseback riders not cars, trucks and motorcycles and there is no vehicle cross-traffic on the trail.   We see no reason why, if Crown would have owed Parsons a duty of care had he been riding on a highway, it should be relieved of any duty because Parsons was riding on a bridle path.   To the extent the environment in which Parsons chose to ride his horse is relevant, it is relevant to the issue of comparative fault or “secondary” assumption of the risk and the trier of fact can take Parsons' conduct into account in determining the relative responsibilities of the parties for Parsons' injury.  (Cf. Galardi v. Seahorse Riding Club, supra, 16 Cal.App.4th at p. 821, 20 Cal.Rptr.2d 270.)

Crown argues that while “ ‘[a]ll persons are required to use ordinary care to prevent others being injured as the result of their conduct’ ” exceptions have been made to this “fundamental principle” when doing so is “clearly supported by public policy.”  (Rowland v. Christian, supra, 69 Cal.2d at p. 112, 70 Cal.Rptr. 97, 443 P.2d 561.)   Crown contends public policy supports an exception for its trash collection activity in relation to Parsons' horseback riding activity based on several of the considerations identified in Knight and Rowland.   These are:  Crown's role in, or relationship to the activity in question (Knight, supra, 3 Cal.4th at p. 317, 11 Cal.Rptr.2d 2, 834 P.2d 696), the extent of the burden to the class of which Crown is a member, the consequences to the community of imposing a duty of care on Crown under the circumstances of this case, and the availability, cost, and prevalence of insurance for the risk involved.  (Rowland, supra, 69 Cal.2d at p. 113, 70 Cal.Rptr. 97, 443 P.2d 561.) 2

It is Crown's contention that if coparticipants in an activity owe no duty to one another to avoid ordinary careless conduct (Knight v. Jewett, supra, 3 Cal.4th at p. 318, 11 Cal.Rptr.2d 2, 834 P.2d 696) surely the duty of a bystander who is not participating in the activity in any manner, not even as a spectator, is similarly negated to the same degree.   We do not accept Crown's major premise—that non-participants owe no duty to those participating in a competitive sporting activity just because participants in that event are excused from any duty of care toward each other during the game.   Assume a plaintiff happens to be playing touch football on a field when a driver negligently loses control of the vehicle when trying to park it and careens into the footballer seriously injuring him.   Is the driver exempt from liability because he owed no duty of due care to people engaged in a touch football game?   Or, what if a bystander brought a dog to the game and it escaped onto the field and bit a player.   A court would have no difficulty in finding a duty of care in both these situations.   It is not merely the activity in which the plaintiff is engaged when he is injured that determines whether a given defendant owes him a duty.   It also is the relationship of that particular defendant to the activity.

Crown's argument fails to take into account the reason why courts have held coparticipants are not liable to one another for ordinary careless conduct.   As explained in Knight, “The courts have concluded that vigorous participation in ․ sporting events likely would be chilled if legal liability were to be imposed on a participant on the basis of his or her ordinary careless conduct․  [I]mposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule.”  (3 Cal.4th at pp. 318–319, 11 Cal.Rptr.2d 2, 834 P.2d 696.)   Whether or not this rationale would apply to coparticipants in a noncompetitive pleasure ride on horseback, it is clearly inapplicable to a trash collector such as Crown.   Because, as Crown concedes, it is not a participant in the horseback riding activity there is no participation to be “chilled.”   Moreover, imposing liability on Crown would clearly not “alter fundamentally” the activity of horseback riding or deter participants from engaging in that activity.   If anything, it would encourage participation.

Crown also contends it would be unduly burdensome to impose a duty on trash collectors, in the course of collecting trash, not to frighten horses.   We disagree.   It is not as though horses are constantly popping up along Crown's trash collection route.   There is no evidence Crown's drivers ever encounter horses except along the short portion of this particular bridle path which passes next to this particular restaurant.   The record in this case contains no evidence that imposing a duty of care would require Crown to collect the restaurant's trash at odd hours of the night when the trail is not in use or to alter its normal collection route in order to service the restaurant.   Should it be the case that at 10:00 a.m. on Monday mornings horseback riders pass the restaurant so frequently the operator would never have an opportunity to lift and dump the rubbish bins it might be necessary for Crown to change its time of collection.   We do not believe this would be an unreasonable burden on Crown or the community given the restaurant's location in a commercial zone.

Finally, Crown contends imposing a duty of care in these circumstances would result in higher operating expenses and higher insurance rates, the costs of which would inevitably be passed along to the public at large.   Crown produced no evidence in the summary judgment proceeding to substantiate this contention.   Only in the hypothetical situation in which Crown was required to alter its collection time would there possibly be an increase in its operating costs and then only if the earlier hour extended the time it took the operator to cover his route or increased the cost of operating the truck by having to service the restaurant out of its logical geographical order.   Such an increase, we believe, would be minimal in any event.   As to the cost of insurance, given the liability already imposed by Vehicle Code section 21759, discussed supra, Crown presumably has coverage in the event one of its trucks strikes or spooks and thus injures a horse or rider on a highway.   Adding coverage for injuring a horse or rider on a bridle path would not in all probability result in a significant increase in premiums.

In summary, we hold a trash collector collecting trash in close proximity to a bridle trail is required to use ordinary care not to frighten horses being ridden on the trail.   The trial court thus erred in concluding on this record that Crown owed no duty of care to Parsons.

DISPOSITION

The judgment is reversed.   Appellant is awarded costs on appeal.

FOOTNOTES

1.   See also Vehicle Code section 21759 which provides, “The driver of any vehicle approaching ․ any ridden animal ․ shall exercise proper control of his vehicle and shall reduce speed or stop as may appear necessary ․ in order to avoid frightening and to safeguard the animal ․ and to insure the safety of any person driving or riding the animal.”   Crown elicited testimony from Parsons that the trash truck itself was not moving while the operator was engaged in emptying the rubbish bins.   Presumably, the purpose of showing the truck was stationary was to avoid application of section 21759 on the ground the truck was not “approaching” Parsons.   However, the scope of Crown's duty to avoid increasing the risk to Parsons is not defined entirely by this statute.   (Eddy v. Stowe, supra, 43 Cal.App. at pp. 794–795, 185 P. 1024.)

2.   Crown does not dispute the foreseeability of harm to the plaintiff, or the closeness of the connection between its conduct and the plaintiff's injury, assuming plaintiff can prove the allegations in his complaint.  (Rowland, supra, 69 Cal.2d at p. 113, 70 Cal.Rptr. 97, 443 P.2d 561.)

JOHNSON, Associate Justice.

LILLIE, P.J., and FRED WOODS, J., concur.