DELORES PENDERGRASS v. DIAMOND BAR CIRCLE HORSE RENTALS (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

During a guided horse trail ride in Griffith Park in Glendale, plaintiff Delores Pendergrass suffered a broken right ankle and leg when she was thrown from a horse that she had rented from a commercial riding stable, defendant Diamond Bar & Circle K Horse Rentals (Circle K).  The trial court granted summary judgment in favor of Circle K. We affirm on the grounds that Pendergrass's action is barred by the affirmative defenses of primary assumption of risk and express assumption of risk based on the written release of liability signed by Pendergrass.

BACKGROUND

Circle K offers and operates horseback trail rides in Griffith Park. On January 1, 2007, Pendergrass's former boyfriend, Troy Norman, took her to Griffith Park to go horseback riding as a surprise.   Before riding, they went to the check-in window and read the paperwork that the Circle K employee gave them.

Pendergrass signed a “Participant Agreement, Release and Assumption of Risk” (Participant Agreement), which stated in pertinent part, “I acknowledge that horseback riding entails known and unanticipated risks that could result in physical or emotional injury, paralysis, death, or damage to myself, to property, or to third parties.   I understand that such risks simply cannot be eliminated without jeopardizing the essential qualities of the activity.  [¶] The risks include, among other things:  contact with wild animals, hiking and exposure to the elements.   A horse, regardless of its training and usual past behavior, may act unpredictably at times based upon instinct of fright which may cause you to be thrown from your horse or injured by the horse.   Horses may do such things as bite, kick, buck, lie down, or stumble.   Saddles may slip and other tack or saddle problems may develop as a result of normal use and wear.   Your horse may collide with obstacles or encounter variations in terrain such as creeks, water, bridges, traveled roads, wild animals, birds, stump, forest growth, debris, rocks and cliffs and other obstacles whether obvious or not and whether man made or natural.   Each of those obstacles or variations in terrain could cause you to lose control of your horse and you could fall.   Riding a horse requires the participant to balance on the saddle.   Participants may lose their balance that can result in falling from the horse.”

The Participant Agreement continued:  “Furthermore, [Circle K] employees have difficult jobs to perform.   They seek safety, but they are not infallible.   They might be unaware of a participant's fitness or abilities.   They might misjudge the weather or other environmental conditions.   They may give incomplete warnings or instructions, and the equipment being used might malfunction.  [¶] ․ I expressly agree and promise to accept and assume all of the risks existing in this activity.   My participation in this activity is purely voluntary, and I elect to participate in spite of the risks.”

Pendergrass agreed to “release, forever discharge, and ․ indemnify and hold harmless [Circle K] from any and all claims, demands, or causes of action, which are in any way connected with [my] participation in this activity or my use of [Circle K's] equipment or facilities, including and such claims which allege negligent acts or omissions of [Circle K].” By signing the document, Pendergrass acknowledged that “if anyone is hurt or property is damaged during my participation in this activity, I may be found by a court of law to have waived my right to maintain a lawsuit against [Circle K] on the basis of any claim from which I have released them herein.  [¶] I have had sufficient opportunity to read this entire document.   I have read and understand it, and I agree to be bound by its terms.”

Pendergrass was also presented with, and signed, a separate document titled “Participant Agreement, Release and Assumption of Risk [¶] Protective Equestrian Headgear Refusal Agreement Addendum” (Headgear Refusal Agreement), in which she acknowledged that she had been “fully warned and advised by [Circle K] that we should wear a properly fitted and secured ASTM/SEI (Equestrian standard) certified helmet while participating in horse riding activities in order to protect against and reduce the severity of potential head trauma that could result in serious injury, including death, as the result of a fall, collision, kick from a horse, or other occurrence associated with horse activities.   Against the advice of [Circle K], I ․ am refusing to wear a helmet and assuming all risk of injury.”

In her deposition testimony, Pendergrass admitted that she read the Headgear Refusal Agreement and part of the Participant Agreement before she signed them.

Posted next to the window was a notice with the heading “ALL CUSTOMERS RIDE AT THEIR OWN RISK!” and containing 11 safety rules.

In a declaration, Pendergrass stated that when she signed in, she informed the staff at the stables that she had never ridden a horse before.   She asked the person checking her in whether she could ride with her high-heeled sandals, and he said that it would be okay.

Before beginning the trail ride, a lady explained to Pendergrass how to guide the horse with the reins and how to stop the horse by pulling back on the reins.¹  There were seven or eight other horses on her trail ride.   During the trail ride and before her accident, Pendergrass's horse stopped two or three times to eat the shrubbery along the trail, but the horse stopped eating when the trail guide, Erik Olson, came over to Pendergrass's horse.   Also before her accident, Pendergrass's feet, in high-heeled sandals, had slipped out of the stirrups on three occasions, and Olson came over and tightened the stirrups.   After the third adjustment, the stirrups felt comfortable.

After riding on the trail for about 30 to 45 minutes, Norman's horse stopped on the trail behind Pendergrass and Olson rode back to help Norman.   According to Norman, after Olson assisted him, Olson helped another woman rider who appeared to be having trouble with her horse.²

While the rest of the group waited for Olson, another rider, Pam, was near Pendergrass.   Pam's saddle slid from her horse and Pam had one leg on the ground and one leg on top of the horse as her horse started to step away.   When Pam yanked her foot out of the stirrups to get off her horse, her foot bumped her horse's hindquarter and her horse took off galloping.   The noises made by Pam's horse had made Pendergrass's horse “real antsy” and Pendergrass's horse started moving after Pam's horse, and then began galloping, following Pam's horse up the trail.   Pendergrass pulled back all the way on the reins and told her horse to stop, but the horse did not stop.   Pendergrass's horse galloped hard;  Pendergrass's feet came out of the stirrups.   Pendergrass was bouncing around, and her legs were “just flying up in the air all over the place.” ³  Her legs “went flying in the air when the horse started galloping because [her] feet were not secure in the stirrups.” ⁴  After about 20 seconds, her bouncing around on the horse caused her to fall off the horse.   Pendergrass's horse continued to run without any rider.   Pendergrass “blacked out,” and when she regained consciousness, she saw Olson and Norman returning to the group.

Pendergrass sued Circle K for ordinary negligence and gross negligence.   Circle K moved for summary judgment on the grounds that Pendergrass's complaint was barred by the defenses of primary assumption of the risk and the express liability release agreement signed by Pendergrass before the trail ride.   The motion was supported primarily by the deposition testimony of Pendergrass and Olson.

In opposition to the motion, Pendergrass proffered the declarations of, among others, Norman, Pendergrass, and Bruce Strouble.   Strouble, who has 20 years of experience riding horses and 10 years of experience training riders and guiding them on trails, declared that before riding a horse on a trail, all riders, and especially new riders, should be given a demonstration of how to guide and control their horse;  he usually takes about 30 minutes walking with new riders on their horses before taking them on the trail.   A ratio of one trail guide to a group of four inexperienced or novice riders is the most that is reasonable.   Proper riding attire is an essential element of safety and includes well-fitting, closed-toed shoes or boots.   Strouble saw the sandals worn by Pendergrass and would never permit someone to ride a horse with such sandals.   Sandals like those worn by Pendergrass “would impede a rider's ability to control their horse, especially under circumstances where the horse has been spooked or excited.” ⁵  Strouble further declared that he went for a trail ride in Griffith Park on May 17, 2009 (over two years after Pendergrass's accident);  he was part of group of nine riders and two guides;  the group was not given any instruction regarding leading and controlling the horses;  when he saw that members of his group were confused while waiting for their guide, he showed them the proper use of the reins and how to control their horses.⁶

After a hearing, the trial court granted the summary judgment motion.   Pendergrass appealed.

DISCUSSION

On appeal from a summary judgment, we review the record de novo to determine whether the moving party was entitled to summary judgment as a matter of law or whether genuine issues of material fact remain.  (Patterson v. Sacramento City Unified School Dist. (2007) 155 Cal.App.4th 821, 826.)  “In determining whether there exist any triable issues of material fact, we strictly construe the evidence proffered by the moving party and liberally construe that proffered by the opposing party.”  (Levinson v. Owens (2009) 176 Cal.App.4th 1534, 1543 (Levinson ).)

A. Primary Assumption of Risk

A defendant moving for summary judgment on the ground of the bar of the primary assumption of risk doctrine has the burden of establishing that the defendant owed no legal duty to the plaintiff to prevent the harm of which the plaintiff complains.  (Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1217.)  “Determining whether the primary assumption of risk doctrine applies is a legal question to be decided by the court.”  (Ibid.)

“ ‘The application of the affirmative defense of primary assumption of risk requires a legal conclusion that “by virtue of the nature of the activity and the parties' relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury.”  [Citation.]’  [Citation.]”  (Levinson, supra, 176 Cal.App.4th at p. 1543.)  “The risk of injury is inherent in certain sporting activities.   [Citation.]  Indeed, the challenges of a sport that pose a risk of injury ‘often are an integral part of the sport itself.’  [Citation.]  [¶] Accordingly, those who participate in such a sporting activity generally assume the risk that they may be injured while doing so.   And others having a role in the activity ‘generally have no legal duty to eliminate (or protect a [participant] against) risks inherent in the sport itself,’ such as the ‘careless conduct of others' who are participating in the sport.  [Citation.]  However, they ‘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.’   [Citation.]”  (Ibid.)

“Horseback riding is a dangerous sporting activity;  ‘being thrown off a horse [i]s an inherent risk of horseback riding, [indeed] ․ it is one of the most obvious risks of that activity, and readily apparent to anyone about to climb on a horse.’  [Citation.]  [¶] Applying the aforesaid principles of primary assumption of the risk to horseback riding leads to the following general conclusions:  The rider generally assumes the risk of injury inherent in the sport.   Another person does not owe a duty to protect the rider from injury by discouraging the rider's vigorous participation in the sport or by requiring that an integral part of horseback riding be abandoned.   And the person has no duty to protect the rider from the careless conduct of others participating in the sport.   The person owes the horseback rider only two duties:  (1) to not ‘intentionally’ injure the rider;  and (2) to not ‘increase the risk of harm beyond what is inherent in [horseback riding]’ [citation] by ‘engag[ing] in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport’ [citation].”  (Levinson, supra, 176 Cal.App.4th at pp.   1545-1546 [social guest fell off horse;  social host had no duty to question guest as to skill level or to give guest special instruction on controlling horse].)  “We view sudden movements of a horse just as inherent in horseback riding as the presence of moguls on a ski slope [is] to skiers.”  (Harrold v. Rolling J Ranch (1993) 19 Cal.App.4th 578, 588 (Harrold ) [primary assumption of risk barred action against commercial trail ride operator even though plaintiff not warned that horse had previously thrown another rider].)

“[T]he commercial operator of a trail riding business geared toward riders with little experience has a duty ‘to ensure the facilities and related services which are provided do not increase the risk of injury above the level inherent in [such a trail ride].’  [Citation.]   This does not mean that the operator has a duty to ‘provide “ideal” riding horses such that they never buck, bite, break into a trot, stumble or “spook” when confronted by a frightening event on the trail such as a shadow or snake or react to peculiar movements of a rider’;  such ‘sudden movements of a horse’ are inherent in the riding of horses, even in the supervised setting of a casual trail ride.   [Citation.]  Thus, there is no duty to protect riders from the risk of injury inherent in a ‘ “horse behaving as a horse” ’ [citation];  however, the commercial trail ride operator does have ‘a duty to supply horses that are not unduly dangerous' for such a ride 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’ [citation].”  (Levinson, supra, 176 Cal.App.4th at p. 1546.)

Distinguishing Harrold, the court in Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476 (Cohen ) held that a trail guide who “unexpectedly provokes a horse to bolt and run without warning its rider” is not conduct “inherent in the recreational trail riding of horses,” thus precluding summary judgment on the ground of primary assumption of risk.  (Cohen, at pp. 1492, 1493.)

In this case, the evidence is undisputed that Pendergrass was informed by the Participant Agreement that saddles may slip and other tack or saddle problems may develop as a result of normal use and wear.   This is precisely what occurred with another rider, Pam. The Participant Agreement also informed Pendergrass that riding horses requires the rider to balance on the saddle and that riders may lose their balance;  horses may collide with obstacles and, regardless of training, horses may act unpredictably based upon an instinct of fright which may cause the rider to be thrown from the horse.   This is precisely what occurred when Pam's foot bumped her horse, which took off galloping, followed by Pendergrass's horse.   The galloping of Pendergrass's horse caused Pendergrass to bounce around, lose her balance, and eventually to fall off the horse.   The sequence of events leading up to Pendergrass's fall are the same type of events described in the Participant Agreement and are inherent in the activity of horseback riding.

As noted, there is no legal duty to protect a participant from the careless conduct of others who are participating in a sporting activity (Levinson, supra, 176 Cal.App.4th at p. 1543), so Circle K cannot be charged with any careless conduct on the part of Pam in provoking her horse to start galloping.   This case is different from Cohen, where a trail guide, without warning the other riders, took his horse into a gallop knowing the other horses would follow, thus provoking the plaintiff's horse to bolt and run.   In this case, the trail guide did nothing to provoke either Pam's or Pendergrass's horse to take off in a gallop.

Pendergrass contends that triable issues of fact exist as to whether Circle K was reckless, “grossly negligent,” and increased the risk of injury to her by (1) “advising [that] her footwear was safe and allowing her to wear them on the trail,” (2) failing to rest and feed their horses, (3) failing to show the riders how to lead and control their horses, and (4) failing to provide adequate supervision and secure saddles for the riders.

The evidence is undisputed that Pendergrass was instructed on how to guide and stop her horse with the reins, so there is no factual support for her claim that the lack of adequate instruction was a factor contributing to the accident.   Assuming for purposes of argument that Circle K did not rest and feed the horses adequately, failed to provide adequate supervision, and negligently permitted her to wear sandals on the trail ride, Pendergrass fails to show that any of these matters was a substantial factor in causing her accident.   There is no evidentiary support for the claims that the lack of rest or food or inadequate supervision by the trail guide were factors which caused Pendergrass's horse to take off in a gallop.

As to her footwear, Pendergrass admitted that, notwithstanding her sandals, her feet were “comfortable” in the stirrups before her horse began to gallop.   Strouble's declaration also does not create a triable issue of fact on this point.   Strouble declared in conclusory fashion that sandals like those worn by Pendergrass would impede a rider's ability to control the horse, especially when the horse has been spooked or excited.   But Strouble does not state that Pendergrass's sandals were a substantial factor in causing Pendergrass's horse to take off in a gallop, in contributing to her inability to control the galloping horse, or in maintaining her balance on the galloping horse.   On this record, the only reasonable inference is that Pendergrass's footwear was not a factor which contributed to her accident and that she would have fallen from her horse regardless of her footwear because of the horse's hard galloping and her lack of experience in riding horses.

We conclude that Pendergrass fails to establish that Circle K engaged in conduct that increased the risk of injury to her beyond the risks inherent in the activity of horseback riding.   It follows that the record does not contain any evidence of recklessness or gross negligence on the part of Circle K. Circle K is thus entitled to summary judgment based on the bar of the defense of primary assumption of risk.

B. Express Assumption of Risk (Release of Liability)

A written release may exculpate a tortfeasor from future negligence or misconduct if the release is clear, unambiguous, and explicit in expressing the intent of the subscribing parties, but it need not achieve perfection.   (Cohen, supra, 159 Cal.App.4th at p. 1485.)   Thus, not every possible specific act of negligence need be spelled out in the release.  (Ibid.) The interpretation of a release is governed by contract construction principles.   (Ibid.)

The scope of the Participation Agreement clearly and unambiguously covers Pendergrass's accident because all of the events leading up to her accident and her allegations of negligence are anticipated and mentioned in the Participation Agreement:  the employee's giving of incomplete warnings or instructions, the slipping of saddles, the unpredictability of the behavior of horses, the rider's loss of balance, the rider's loss of control, and the rider's fall from the horse are all expressly mentioned.

Pendergrass maintains that Circle K's negligent misrepresentation regarding her sandals voids the Participation Agreement.   But the record does not establish any actionable misrepresentation or materiality.

A release may be rescinded if it was induced by negligent misrepresentation.   (Guido v. Koopman (1991) 1 Cal.App.4th 837, 843.)   The existence of fraud, including the element of justifiable reliance, is a question of fact unless reasonable people can come to only one conclusion based on the facts.   (Ibid.) A misrepresentation, to be actionable, must be made about a past or existing fact;  statements regarding future events are deemed to be nonactionable opinions.  (Neu-Visions Sports, Inc. v. Soren/McAdam/Bartells (2000) 86 Cal.App.4th 303, 309-310.)

Circle K's statement that Pendergrass's sandals would be “okay” was not actionable because it was a statement implying that she would be able to ride her horse safely with the sandals, a prediction about a future event.   Even if the statement could be construed as a statement regarding the existing safety characteristics of her sandals, and not mere opinion, the statement must still be material.  (Apollo Capital Fund LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 243 [negligent misrepresentation requires misrepresentation of a past or existing material fact ].)   As explained in part A of the Discussion, Pendergrass's footwear was not a factor which contributed to her accident, so the statement that riding with her sandals would be “okay” was not material.   Because the evidence does not establish negligent misrepresentation, there is no basis to rescind or void the Participation Agreement.   The Participation Agreement constitutes a valid express assumption of the risk, and summary judgment was properly granted on this basis.

DISPOSITION

The judgment is affirmed.   Defendant Diamond Bar & Circle K Horse Rentals is entitled to costs on appeal.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. Circle K asserts that Pendergrass's horse was a horse named “Rex.” But there is no evidence supporting the conclusion that Rex was her horse.   In the testimony of both Pendergrass and Erik Olson, the trail guide, it was Circle K's attorney who claimed the horse was Rex. Pendergrass testified that she could not remember her horse's name, and the attorney said, “Well, I'm going to refer to him as Rex for now․”  Neither Pendergrass nor Olson testified that her horse was Rex..  FN1. Circle K asserts that Pendergrass's horse was a horse named “Rex.” But there is no evidence supporting the conclusion that Rex was her horse.   In the testimony of both Pendergrass and Erik Olson, the trail guide, it was Circle K's attorney who claimed the horse was Rex. Pendergrass testified that she could not remember her horse's name, and the attorney said, “Well, I'm going to refer to him as Rex for now․”  Neither Pendergrass nor Olson testified that her horse was Rex.

FN2. The entire sentence in Norman's declaration was that Olson helped another rider “who appeared to be having so much trouble with her horse that she was crying.”   The trial court sustained Circle K's objection to this statement in Norman's declaration on the ground that it was irrelevant, lacked foundation, and called for speculation.   Norman was a percipient witness of another rider having trouble with her horse and crying.   To the extent that Norman's declaration is construed to state that the other rider was crying because her horse was causing her trouble, the objection was properly sustained on the ground that Norman's conclusion as to the cause of the rider's crying is speculative.   Accordingly, we admit only that portion of the sentence relating to Norman's observation that another rider was having trouble with her horse.   The evidence is pertinent to Pendergrass's claims that Circle K was negligent in providing inadequate supervision and horses that were in “bad sorts.”   In admitting this evidence, we do not imply that Norman's declaration establishes any negligence or gross negligence of Circle K..  FN2. The entire sentence in Norman's declaration was that Olson helped another rider “who appeared to be having so much trouble with her horse that she was crying.”   The trial court sustained Circle K's objection to this statement in Norman's declaration on the ground that it was irrelevant, lacked foundation, and called for speculation.   Norman was a percipient witness of another rider having trouble with her horse and crying.   To the extent that Norman's declaration is construed to state that the other rider was crying because her horse was causing her trouble, the objection was properly sustained on the ground that Norman's conclusion as to the cause of the rider's crying is speculative.   Accordingly, we admit only that portion of the sentence relating to Norman's observation that another rider was having trouble with her horse.   The evidence is pertinent to Pendergrass's claims that Circle K was negligent in providing inadequate supervision and horses that were in “bad sorts.”   In admitting this evidence, we do not imply that Norman's declaration establishes any negligence or gross negligence of Circle K.

FN3. This evidence was obtained from Pendergrass's deposition testimony..  FN3. This evidence was obtained from Pendergrass's deposition testimony.

FN4. This evidence is from Pendergrass's declaration submitted in opposition to the summary judgment motion.   The trial court sustained Circle K's objection to this statement in her declaration on the ground that it contradicted her deposition testimony.   We conclude that the trial court erred and abused its discretion in sustaining this objection because the statement in Pendergrass's declaration does not contradict her deposition testimony..  FN4. This evidence is from Pendergrass's declaration submitted in opposition to the summary judgment motion.   The trial court sustained Circle K's objection to this statement in her declaration on the ground that it contradicted her deposition testimony.   We conclude that the trial court erred and abused its discretion in sustaining this objection because the statement in Pendergrass's declaration does not contradict her deposition testimony.

FN5. The trial court impliedly overruled Circle K's objection to the entirety of Strouble's declaration but sustained Circle K's objections to the portions of Strouble's declaration regarding Pendergrass's sandals and the proper ratio of trail guides to novice riders on relevancy grounds.   We agree with Pendergrass that the trial court abused its discretion in excluding this evidence because issues of safety and proper riding attire are relevant to the issue of primary assumption of the risk.   Notwithstanding the principles that courts ordinarily do not consider an expert's testimony to the extent it constitutes a conclusion of law and that it is for the court to determine whether a defendant's conduct increased the risk inherent in participation in a particular sport, the trial court may receive expert testimony on the customary practices in the sport to make that determination.  (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1017.).  FN5. The trial court impliedly overruled Circle K's objection to the entirety of Strouble's declaration but sustained Circle K's objections to the portions of Strouble's declaration regarding Pendergrass's sandals and the proper ratio of trail guides to novice riders on relevancy grounds.   We agree with Pendergrass that the trial court abused its discretion in excluding this evidence because issues of safety and proper riding attire are relevant to the issue of primary assumption of the risk.   Notwithstanding the principles that courts ordinarily do not consider an expert's testimony to the extent it constitutes a conclusion of law and that it is for the court to determine whether a defendant's conduct increased the risk inherent in participation in a particular sport, the trial court may receive expert testimony on the customary practices in the sport to make that determination.  (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1017.)

FN6. The trial court sustained Circle K's objection to Strouble's statement that on May 17, 2009, Strouble was not offered a helmet or advised that he should wear one even though he was given a headgear release agreement to sign.   The trial court properly sustained the objection on relevancy grounds.   Circle K's conduct with respect to Strouble's headgear agreement in May 2009 is irrelevant because Pendergrass admitted that she read and signed the Headgear Refusal Agreement, thus declining to wear a helmet.Pendergrass argues on appeal that she “was given no opportunity to argue or submit additional evidence” after the court ruled on Circle K's evidentiary objections.   But the record shows that Pendergrass had an opportunity to respond to the evidentiary objections:  Circle K's evidentiary objections were served on Pendergrass five days before the hearing on the motion and Pendergrass's counsel appeared at the hearing and did not request additional time or to submit additional evidence.   Even now, Pendergrass fails to explain what additional evidence she could submit.   The point is not well taken..  FN6. The trial court sustained Circle K's objection to Strouble's statement that on May 17, 2009, Strouble was not offered a helmet or advised that he should wear one even though he was given a headgear release agreement to sign.   The trial court properly sustained the objection on relevancy grounds.   Circle K's conduct with respect to Strouble's headgear agreement in May 2009 is irrelevant because Pendergrass admitted that she read and signed the Headgear Refusal Agreement, thus declining to wear a helmet.Pendergrass argues on appeal that she “was given no opportunity to argue or submit additional evidence” after the court ruled on Circle K's evidentiary objections.   But the record shows that Pendergrass had an opportunity to respond to the evidentiary objections:  Circle K's evidentiary objections were served on Pendergrass five days before the hearing on the motion and Pendergrass's counsel appeared at the hearing and did not request additional time or to submit additional evidence.   Even now, Pendergrass fails to explain what additional evidence she could submit.   The point is not well taken.

CHANEY, J. JOHNSON, J.