HARROLD v. ROLLING RANCH 100 (1990)

In this appeal, we consider whether the Supreme Court's adoption of the comparative fault system in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, abolished the defense of assumption of risk except in cases of express contractual assumption.   We conclude assumption of risk remains a viable defense except where it has been subsumed under principles of comparative negligence.

We further conclude the trial court erred in granting summary judgment based upon the defendants' assumption of risk defense.   Accordingly, the judgment is reversed.

STATEMENT OF FACTS AND PROCEEDINGS BELOW

In September 1983, plaintiffs Charlene and John Harrold (collectively referred to as the Harrolds) became members of a resort owned by defendant Great Outdoor American Adventures, Inc. (GOAA).  In November 1983, the Harrolds took a weekend vacation at GOAA's resort.

There, the Harrolds learned GOAA offered horseback riding to its members at nearby stables.   The stables were operated by defendant Rolling J Ranch.

Charlene Harrold, two of her friends and two young girls chose to go horseback riding.   GOAA transported the group to the Rolling J stables.   There, the group members were given their choice of horses.   Ms. Harrold initially chose one horse but, after some misgivings, selected another horse to ride for the day.   After the riders selected their horses, Rolling J employees saddled the horses.

The five riders were escorted by two wranglers.   One wrangler rode at the head of the group and the other at the end.   The wranglers were employed by Rolling J.   Before starting the ride, the riders were instructed on certain basics of horseback riding, such as how to signal and command the horse.   The riders were also warned not to run the horses.

About 20 to 30 minutes into the ride, one of the young girls complained she was cold.   Ms. Harrold decided to give the jacket she was wearing to the young girl.   Having experienced no problems with the horse during the ride, Ms. Harrold wrapped the reins around the saddle horn.   She then started to remove her jacket from her shoulders.

While both of her arms were still in the sleeves and caught behind her, the horse suddenly spooked.   Ms. Harrold tried, but was unable, to remain on the panicked horse.   When the horse bucked for the second time, Ms. Harrold was thrown to the ground landing on her tailbone.

Unbeknown to Ms. Harrold, on a previous ride, this same horse previously had spooked and thrown a rider when that rider took off and waved a hat.   Defendants neither warned Ms. Harrold of this prior incident nor did they retrain the horse to avoid the recurrence of a similar incident.

The Harrolds commenced an action against defendants GOAA, Rolling J, and Jack Suderman alleging defendants negligently failed to warn Ms. Harrold of her horse's unstable temperament and tendency to throw riders and failing to provide her with a safe horse to ride.¹  The Harrolds also alleged defendants negligently maintained their premises and willfully failed to warn of the property's dangerous condition.

Defendants answered by filing a general denial and, inter alia, raised the affirmative defense of assumption of risk.   Defendants subsequently moved for summary judgment solely on this affirmative defense.   Defendants argued Ms. Harrold, by virtue of her experience as a rider, knew of the risks involved in horseback riding and voluntarily assumed such risks when she commenced the ride.

The evidence before the trial court concerning the summary judgment motion showed Ms. Harrold had prior experience with horses.   However, the evidence was in conflict as to the degree of her expertise.

Ms. Harrold knew how to guide a horse to the left and right, make it stop, trot, and gallop, and how to bridle and saddle a horse.   In a note prepared for the stables explaining how the accident occurred, Ms. Harrold wrote:  “I am an experienced rider and I understand that I was the second person thrown by the same horse.   I guess even the best are thrown․  Accidents happen.”   In her deposition, Ms. Harrold explained her reference to “the best being thrown” was not intended to refer to herself.   Rather, it was a general comment referring to “any good rider.”   Further, she considered a person an experienced rider if she could saddle and ride a horse.

The evidence also showed Ms. Harrold never rode a horse more often than once a month, she had never been a member of a riding club or academy, and she had never taken care of horses or fallen off of one.   Further, she always rode with one of her adult sons.   Additionally, she had only ridden a horse once in the five years preceding the accident.

The trial court granted the summary judgment motion, stating:  “Maybe it's because of the disadvantage.   I have a little too much knowledge of ․ horses, and that's why I think when you get on a horse and you are going to ride on [sic] the outdoors, whether there are wranglers all over, you are assuming a risk that you can fall off the horse.”   The Harrolds timely appealed.

DISCUSSION

I. STANDARD OF REVIEW.

 The standard of review for summary judgments is well-settled.   Where a defendant moves for summary judgment, his 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 factual issue requires resolution by trial.  (DeRosa v. Transamerica Title Ins. Co. (1989) 213 Cal.App.3d 1390, 1395, 262 Cal.Rptr. 370.)   Thus, summary judgment is proper here if the defendants are legally entitled to raise the assumption of the risk defense and have conclusively established all of the necessary elements of that defense.

II. THERE IS A CONFLICT OF OPINION WHETHER REASONABLE IMPLIED ASSUMPTION OF RISK SURVIVES LI V. YELLOW CAB CO.

The Harrolds argue implied assumption of risk was abolished with the Supreme Court's adoption of the comparative fault system in Li v. Yellow Cab Co., supra, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226.   The California Courts of Appeal are divided on this question as are the courts in other states.

The majority of California Courts of Appeal have held the Supreme Court only abolished the assumption of risk defense where the plaintiff has acted unreasonably in assuming a known risk since such conduct is a form of negligence which is subsumed in comparative fault.   The other jurisdictions and the commentators are more evenly divided concerning whether assumption of risk does and should survive adoption of a comparative fault system.

A. Assumption of Risk Doctrine Prior to the Supreme Court's Decision in Li v. Yellow Cab Co.

Prior to Li v. Yellow Cab Co., supra, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, the assumption of risk defense was available when a plaintiff voluntarily accepted a risk and such acceptance, either express or implied, was made with knowledge and appreciation of the risk involved.  (Grey v. Fibreboard Paper Products Co. (1966) 65 Cal.2d 240, 243–244, 53 Cal.Rptr. 545, 418 P.2d 153;  Vierra v. Fifth Avenue Rental Service (1963) 60 Cal.2d 266, 272, 32 Cal.Rptr. 193, 383 P.2d 777.)   An indispensable element of this defense was that the plaintiff have actual knowledge of the existence of the specific danger involved.  (Grey v. Fibreboard Paper Products Co., supra, 65 Cal.2d at p. 244, 53 Cal.Rptr. 545, 418 P.2d 153;  Vierra v. Fifth Avenue Rental Service, supra, 60 Cal.2d at pp. 273–274, 32 Cal.Rptr. 193, 383 P.2d 777;  Shahinian v. McCormick (1963) 59 Cal.2d 554, 567, 30 Cal.Rptr. 521, 381 P.2d 377.)   Additionally, evidence showing the plaintiff had actual knowledge of the magnitude of the risk involved was required.  (Vierra v. Fifth Avenue Rental Service, supra, 60 Cal.2d at p. 271, 32 Cal.Rptr. 193, 383 P.2d 777;  Shahinian v. McCormick, supra, 59 Cal.2d at p. 567, 30 Cal.Rptr. 521, 381 P.2d 377.)   If the evidence only showed the plaintiff should or could have discovered the danger by exercising ordinary care, then the only defense to be asserted by the defendant was contributory negligence and not assumption of the risk.  (Grey v. Fibreboard Paper Products Co., supra, 65 Cal.2d at p. 244, 53 Cal.Rptr. 545, 418 P.2d 153;  Hayes v. Richfield Oil Corp. (1952) 38 Cal.2d 375, 385, 240 P.2d 580.)

Finally, the assumption of risk defense could be asserted even where the plaintiff exercised due care in assuming the risk involved.  (Grey v. Fibreboard Paper Products Co., supra, 65 Cal.2d at p. 244, 53 Cal.Rptr. 545, 418 P.2d 153.)   Whether a plaintiff assumed the risk was a question of fact.  (Sperling v. Hatch (1970) 10 Cal.App.3d 54, 62, 88 Cal.Rptr. 704.)

In sum, prior to Li v. Yellow Cab Co., supra, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, California recognized a plaintiff could be barred from recovery either by expressly or implicitly assuming the risk.   Further, the assumption of risk doctrine would apply regardless of whether the plaintiff acted reasonably, i.e., with due care, when she assumed the risk.

B. The Supreme Court's Decision in Li v. Yellow Cab Co.

In 1975, the Supreme Court abandoned the inequitable rule of contributory negligence in favor of a comparative fault system.  (Li v. Yellow Cab Co., supra, 13 Cal.3d at pp. 812–813, 119 Cal.Rptr. 858, 532 P.2d 1226.)   In so doing, the Supreme Court also considered the continued existence of the doctrine of assumption of risk.

“As for assumption of risk, we have recognized in this state that this defense overlaps that of contributory negligence to some extent and in fact is made up of at least two distinct defenses.  ‘To simplify greatly, it has been observed ․ that in one kind of situation, to wit, where a plaintiff unreasonably undertakes to encounter a specific known risk imposed by a defendant's negligence, plaintiff's conduct, although he may encounter that risk in a prudent manner, is in reality a form of contributory negligence․  Other kinds of situations within the doctrine of assumption of risk are those, for example, where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him.   Such a situation would not involve contributory negligence, but rather a reduction of defendant's duty of care.’  [Citations.]  We think it clear that the adoption of a system of comparative negligence should entail the merger of the defense of assumption of risk into the general scheme of assessment of liability in proportion to fault in those particular cases in which the form of assumption of risk involved is no more than a variant of contributory negligence.”  (Id. at pp. 824–825, 119 Cal.Rptr. 858, 532 P.2d 1226, original emphasis.) ²

Since the adoption of comparative fault, various Courts of Appeal in California have considered the continued viability of the assumption of risk doctrine, with the overwhelming majority concluding assumption of risk remains an absolute bar to negligence actions under certain circumstances and the minority, comprised of a single court, concluding only express contractual assumption of risk remains after Li v. Yellow Cab Co., supra.³  However, the Supreme Courts of several sister states have followed the lead of experts in tort theory and held reasonable implied assumption of risk does not survive adoption of a comparative fault system.  (See section E, pp. 17–21.)

C. The Minority View of Assumption of Risk in the Court of Appeal.

The minority position was articulated by the Fifth District in Segoviano v. Housing Authority (1983) 143 Cal.App.3d 162, 191 Cal.Rptr. 578.   There, the court considered whether a defendant could assert the defense of reasonable implied assumption of risk against a plaintiff who was injured while playing in a flag football game sponsored by the defendant.  (Id. at p. 164, 191 Cal.Rptr. 578.)   The court concluded the Supreme Court abolished all forms of assumption of risk save the express contractual assumption of risk.  (Id. at p. 168, 191 Cal.Rptr. 578.)

The court reached this conclusion by focusing on language contained in Li v. Yellow Cab Co., supra, where the Supreme Court referred to a form of assumption of risk which survives the adoption of comparative fault.  (Id. at pp. 167–168, 191 Cal.Rptr. 578.)  “ ‘Other kinds of situations within the doctrine of assumption of risk are those, for example, where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him․’ ”  (Li v. Yellow Cab Co., supra, 13 Cal.3d at p. 824, 119 Cal.Rptr. 858, 532 P.2d 1226, italics added.)

The Fifth District concluded this language should be construed to mean “ ‘expressly’ agrees.”  (Segoviano v. Housing Authority, supra, 143 Cal.App.3d at p. 168, 191 Cal.Rptr. 578.)   The court further noted abolition of implied assumption of risk was the only equitable result under the principles articulated in Li.  “In our view, this is the only rational meaning to be given to the principles articulated in Li.   The Supreme Court recognized that implied assumption of risk if unreasonable could be fairly handled under the comparative negligence concept, i.e., the plaintiff's recovery would be reduced to the extent his own lack of reasonable care contributed to his injury.   If the plaintiff's conduct was entirely reasonable under all circumstances, we find no basis in reason or equity for barring his recovery.   Elimination of [reasonable implied assumption of risk] as a separate defense avoids punishing reasonable conduct.”  (Id. at p. 170, 191 Cal.Rptr. 578.)

D. The Majority View in the Court of Appeal.

A number of California intermediate appellate courts, with varying degrees of discussion, have concluded implied reasonable assumption of risk survives the comparative fault system.  (See, e.g., Nunez v. R'Bibo (1989) 211 Cal.App.3d 559, 562, 260 Cal.Rptr. 1 [Second District, Division Two];  Von Beltz v. Stuntman, Inc. (1989) 207 Cal.App.3d 1467, 1478, 255 Cal.Rptr. 755 [Second District, Division Five];  Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 107, 243 Cal.Rptr. 536 [Fourth District, Division Three];  Nelson v. Hall (1985) 165 Cal.App.3d 709, 714, 211 Cal.Rptr. 668 [Third District];  Paula v. Gagnon (1978) 81 Cal.App.3d 680, 685, 146 Cal.Rptr. 702 [First District, Division Three].)   One of the most comprehensive of these opinions, and the one which most closely scrutinizes Segoviano, is the decision in Ordway v. Superior Court, supra, 198 Cal.App.3d 98, 243 Cal.Rptr. 536.

In Ordway, the plaintiff, a veteran professional jockey, was injured during a race when another jockey caused his horse to become entangled with another resulting in the plaintiff being thrown from her horse.  (Id. at p. 101, 243 Cal.Rptr. 536.)   The plaintiff commenced an action against the various riders, trainers and horse owners.   One of the horse owners unsuccessfully moved for summary judgment based upon the assumption of risk doctrine.   The Fourth District, on remand from the Supreme Court, held summary judgment was proper.

The court expressly rejected the holding in Segoviano concluding the Segoviano court incorrectly analyzed the Supreme Court's holding in Li and the nature of implied reasonable assumption of risk.  “The correct analysis is this:  The doctrine of reasonable implied assumption of risk is only another way of stating that the defendant's duty of care has been reduced in proportion to the hazards attendant to the event.   Where no duty of care is owed with respect to a particular mishap, there can be no breach;  consequently, as a matter of law, a personal injury plaintiff who has voluntarily—and reasonably—assumed the risk cannot prevail.   Or stated another way, the individual who knowingly and voluntarily assumes a risk, whether for recreational enjoyment, economic reward, or some similar purpose, is deemed to have agreed to reduce the defendant's duty of care.”  (Id. at p. 104, 243 Cal.Rptr. 536.)

The Ordway court went on to refute the suggestion made in Segoviano that a reasonable plaintiff is penalized by having his action barred while theunreasonable plaintiff only has his recovery reduced in proportion to his negligent conduct.   Focusing on the defendant's expectations, the court noted a defendant may assume he can ignore the reasonably assumed risks attendant to the remunerative or recreational activity involved without taking extraordinary precautions to prevent injury.   In contrast, the defendant cannot similarly assume a plaintiff will act unreasonably in undertaking certain risks and therefore has a duty to guard against those risks which may result in injury.  (Id. at pp. 104–105, 243 Cal.Rptr. 536.)

Having concluded reasonable implied assumption of risk survived Li, the court went on to find the injury was a known and apparent danger of professional horse racing which the plaintiff voluntarily assumed.  (Id. at pp. 109–110, 243 Cal.Rptr. 536.)

E. The Better Reasoned View Supports Abolishment of Reasonable Implied Assumption of Risk as a Separate Affirmative Defense and Its Inclusion Under Comparative Negligence.

 We conclude it is unclear whether the California Supreme Court intended reasonable implied assumption of risk to survive Li v. Yellow Cab Co.   As the majority of courts before us have determined, it is clear the Supreme Court abolished one form of assumption of risk, i.e., where the defendant has acted unreasonably or, to be more accurate within the comparative negligence scheme, negligently in assuming a known risk.   It is equally clear express assumption of risk survives California's adoption of comparative negligence.   But the Supreme Court did not explicitly address reasonably implied assumption of risk.

As we discussed, supra, prior to Li the Supreme Court recognized assumption of risk barred actions where the plaintiff voluntarily accepted a risk and such acceptance, whether express or implied, was made with a knowledge and appreciation of the risk.  (Id. 65 Cal.2d at p. 244, 53 Cal.Rptr. 545, 418 P.2d 153.)   Further, the doctrine applied regardless of whether the plaintiff acted reasonably in assuming the risk.

Implicit within this general doctrine are at least two forms of assumption of risk.   The first is an implied acceptance of a known and appreciated risk which is reasonably assumed.  (See Rest.2d Torts, § 496 A, p. 561.)   The second is an implied acceptance of a known and appreciated risk which is unreasonably assumed.  (Id. at p. 562;  see, e.g., Gonzalez v. Garcia (1977) 75 Cal.App.3d 874, 881, 142 Cal.Rptr. 503.)   In Li, the Supreme Court only expressly abolished the second form of assumption of risk since, as the commentators universally recognized, this form is closest to comparative negligence.  (Li v. Yellow Cab Co., supra, 13 Cal.3d at pp. 824–825, 119 Cal.Rptr. 858, 532 P.2d 1226;  Prosser & Keeton, Torts (5th ed. 1984) § 68, 497;  Schwartz, Comparative Negligence (2d ed. 1986) Assumption of Risk, § 9.1, p. 157;  4 Harper, James & Gray, Law of Torts (2d ed. 1986) § 21.0, pp. 190.)

Further, the Supreme Court expressly recognized at least one other form of assumption of risk in its Li opinion survives adoption of the comparative fault system;  that is, “ ‘where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him.   Such a situation would not involve contributory negligence, but rather a reduction of defendant's duty of care.’  [Citations.]” (Id. at pp. 824–825, 119 Cal.Rptr. 858, 532 P.2d 1226, italics added.)   This language clearly embraces an express agreement to relax a defendant's duty of care.   However, it is at best ambiguous on whether a plaintiff can be deemed to have implicitly reduced the defendant's duty of care toward him.

The majority view among California's intermediate appellate courts not to completely abolish the assumption of risk doctrine is consistent with a number of out-of-state courts which have also addressed this issue.   Our research has identified eight other states which have decided to retain primary assumption of risk following adoption of a comparative fault system.  (See Duffy v. Midlothian Country Club (1985) 135 Ill.App.3d 429, 90 Ill.Dec. 237, 242, 481 N.E.2d 1037, 1042;  Chapman v. Craig (Iowa 1988) 431 N.W.2d 770, 771;  Iepson v. Noren (Minn.1981) 308 N.W.2d 812, 815;  Thompson v. Ruidoso–Sunland, Inc. (App.1987) 105 N.M. 487, 734 P.2d 267, 271;  Turcotte v. Fell (1986) 68 N.Y.2d 432, 510 N.Y.S.2d 49, 53, 502 N.E.2d 964, 968;  Mima v. City of Akron (1986) 31 Ohio App.3d 124, 508 N.E.2d 974, 975;  Fish v. Gosnell (1983) 316 Pa.Super. 565, 463 A.2d 1042, 1048–1049;  Mignone v. Fieldcrest Mills (R.I.1989) 556 A.2d 35, 38.)

However, the opposite view has been expressed persuasively by a number of leading commentators and has been adopted by the large majority of comparative fault jurisdictions.   Various courts and commentators have articulated reasons for a complete abolition of the doctrine based upon principles of fairness and convenience.  (See, e.g., Harper, James & Gray, Law of Torts, supra, § 21.0, p. 190;  James, Assumption of Risk:  Unhappy Reincarnation, (1968) 78 Yale L.J. 185;  Harrison v. Taylor (1989) 115 Idaho 588, 768 P.2d 1321, 1324;  Blackburn v. Dorta (Fla.1977) 348 So.2d 287, 291–292;  Murray v. Ramada Inns, Inc. (La.1988) 521 So.2d 1123, 1133–1134;  Meese v. Brigham Young University (Utah 1981) 639 P.2d 720, 725.)   Moreover, another five states placed significant limitations on the doctrine.  (See Thompson v. Crownover (1989) 259 Ga. 126, 377 S.E.2d 660, 662, modified at 381 S.E.2d 283;  Smith v. Blakey (1973) 213 Kan. 91, 515 P.2d 1062, 1070;  Singleton v. Wiley (Miss.1979) 372 So.2d 272, 275;  Melendres v. Soales (1981) 105 Mich.App. 73, 306 N.W.2d 399, 404;  Landrum v. Roddy (1943) 143 Neb. 934, 12 N.W.2d 82, 89;  Ballard v. Happy Jack's Supper Club (S.D.1988) 425 N.W.2d 385, 389.)

The many vocal detractors of the continued viability of assumption of risk include Professors Harper, James & Gray.   In their treatise, The Law of Torts, these commentators severely criticize the assumption of risk doctrine as an antiquated legal theory which has been subsumed into the existing legal principles of duty and comparative fault.  (Harper, James & Gray, Law of Torts, supra, § 21.8, p. 259.)

“The doctrine of assumption of risk, however it is analyzed and defined, is in most of its aspects a defendant's doctrine that restricts liability and so cuts down the compensation of accident victims.   It is a heritage of the extreme individualism of the early industrial revolution.   But quite aside from any questions of policy or of substance, the concept of assuming the risk is purely duplicative of other more widely understood concepts, such as scope of duty or contributory negligence․  [¶] Except for express assumption of risk, therefore, the term and the concept should be abolished.   It adds nothing to modern law except confusion, ․  There is only one thing that can be said for assumption of risk.   In the confusion it introduces, it sometimes—ironically and quite capriciously—leads to a relaxation of an overstrict rule in some other field.   The aura of disfavor that has come to surround it may occasionally turn out to be the kiss of death to some other bad rule with which it has become associated․  [T]his sort of thing is a poor excuse indeed for continuing the confusion of an unfortunate form of words.”  (Id. at pp. 259–260, footnotes omitted;  accord Leavitt v. Gillaspie (Alaska 1968) 443 P.2d 61, 68;  Rini v. Oaklawn Jockey Club (8th Cir.1988) 861 F.2d 502, 507 [construing Arkansas law];  Brown v. Kreuser (1977) 38 Colo.App. 554, 560 P.2d 105, 108;  Wendland v. Ridgefield Const. Services, Inc. (1983) 190 Conn. 791, 462 A.2d 1043, 1047;  Zahrte v. Sturm, Ruger & Co. (1983) 203 Mont. 90, 661 P.2d 17, 18;  Mizushima v. Sunset Ranch, Inc., 103 Nev. 259, 737 P.2d 1158, 1161 (1987);  England v. Tasker (1987) 129 N.H. 467, 529 A.2d 938, 940;  McGrath v. American Cyanamid Co. (1963) 41 N.J. 272, 196 A.2d 238, 239;  First Trust Co. v. Scheels Hardware (N.D.1988) 429 N.W.2d 5, 9;  Thompson v. Weaver (1977) 277 Or. 299, 560 P.2d 620, 623;  Farley v. M M Cattle Company (Tex.1975) 529 S.W.2d 751, 758;  Meese v. Brigham Young University, supra, 639 P.2d at p. 725.)

In a related argument, Professor Schwartz notes that retention of assumption of risk as an absolute defense conflicts with the intent underlying the comparative fault system.  “By consent to an intentional tort, plaintiff manifests his agreement to the actual invasion of his interest in person or property.   On the other hand, when plaintiff assumes a risk, he volunteers to be subject to a possible injury.   This is a giant step away from consent when viewed from the perspective of whether plaintiff actually agreed to hold defendant blameless for the risk.

“In that light, facts constituting assumption of risk are as close to contributory negligence as they are to consent.   The scores of cases that have attempted to characterize plaintiff's conduct as assumption of risk or contributory negligence demonstrate this.

“A rigorous application of implied assumption of risk as an absolute defense could serve to undermine seriously the general purpose of a comparative negligence statute to apportion damages on the basis of fault.   This is perhaps the reason that every commentator who has addressed himself to this specific problem has agreed that plaintiff should not have his claim barred if he has impliedly assumed the risk, but rather that this conduct should be considered in apportioning damages under the statute.”  (Schwartz, Comparative Negligence, supra, § 9.5, pp. 179–180, original emphasis;  see Blackburn v. Dorta, supra, 348 So.2d at pp. 292–293;  Harrison v. Taylor, supra, 768 P.2d at p. 1324;  Wilson v. Gordon (Me.1976) 354 A.2d 398, 402;  Abernathy v. Eline Oil Field Services, Inc. (1982) 200 Mont. 205, 650 P.2d 772, 774–775;  Murray v. Ramada Inns, Inc., supra, 521 So.2d at p. 1133;  Perkins v. Windsor Hosp. Corp. (1982) 142 Vt. 305, 455 A.2d 810, 814;  Kirk v. Washington State University (1987) 109 Wash.2d 448, 746 P.2d 285, 291.)

We find these arguments based on both logic and public policy to be persuasive.   We likewise recognize, however, that California's intermediate appellate courts are in conflict on this important issue.   Only the California Supreme Court is in a position to resolve that conflict.   In the meantime, trial courts are empowered to choose among the two views expressed here subject only to continuing review on appeal.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, 20 Cal.Rptr. 321, 369 P.2d 937 [“where there is more than one appellate court decision, and such appellate decisions are in conflict ․, the court exercising inferior jurisdiction can and must make a choice between conflicting decisions”].)   We urge the Supreme Court to clarify the ambiguity on this issue resulting from its Li opinion and in so doing put reasonable implied assumption of risk where it belongs, as one possible ingredient in the comparative fault equation.

III. ASSUMING THE REASONABLE IMPLIED ASSUMPTION OF RISK DOCTRINE SURVIVED LI, THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT ON DEFENDANTS' ASSUMPTION OF RISK DEFENSE.

As an independent ground for their appeal, the Harrolds argue the trial court erroneously granted summary judgment even assuming the reasonable implied assumption of risk doctrine survived adoption of comparative fault.   They argue there was no evidence Ms. Harrold knew of her horse's propensity to be spooked.   We agree.

 As we discussed, supra, the issue of assumption of risk is normally a question of fact for the jury.  (Sperling v. Hatch, supra, 10 Cal.App.3d at p. 62, 88 Cal.Rptr. 704;  Baker v. Chrysler Corp. (1976) 55 Cal.App.3d 710, 717, 127 Cal.Rptr. 745.)  “Actual knowledge of the risk and appreciation of its magnitude are subjective requisites, rarely susceptible of proof by direct evidence.   Ordinarily, these elements of the defense can only be established by circumstantial evidence, by proof of facts from which their existence is implied.   When such proof is relied upon, it is for the jury to determine whether the required inferences should, or should not, be drawn.”   (Sperling v. Hatch, supra, 10 Cal.App.3d at p. 62, 88 Cal.Rptr. 704, italics added.)   Thus, summary judgment was only proper here if the evidence conclusively established Ms. Harrold had actual knowledge of her horse's propensity to spook.   It did not.

Defendants initially argue there is no evidence the horse Ms. Harrold rode had a propensity to throw its riders.   In connection with this argument, defendants objected to the Harrolds' inclusion of Paula Gow's deposition and the third volume of Ms. Harrold's deposition in the appendix in lieu of clerk's transcript because neither deposition was before the trial court.   Defendants contend the only evidence establishing the horse's propensity is contained in Ms. Gow's deposition.

As to Paula Gow's deposition, the record shows defendants' counsel specifically stipulated to the Harrolds' use of the deposition at the summary judgment hearing subject to an objection at that time.   No such objection was made.   However, the record does not indicate whether the deposition was in fact before the trial court.

Because of this ambiguity in the record, we requested supplemental briefing concerning what evidence was presented to the trial court concerning the horse's propensity to spook or throw riders.   In response, the Harrolds argued the burden rested with defendants to provide competent admissible evidence which controverted the Harrolds' allegations concerning the horse's propensities.   The Harrolds also referenced the letter written by Ms. Harrold to Rolling J stating she understood her horse had previously thrown another rider.

Defendants' supplemental briefing does not discuss its burden to refute the complaint's allegations with competent admissible evidence.   Nor does it cite to any evidence which would establish the horse had no propensity to throw riders.   Instead, defendants argue Ms. Harrold's statement to Rolling J was not competent evidence because it was hearsay and made without personal knowledge.

 The Harrolds correctly argue they had no duty to produce evidence establishing the horse's propensity to spook or throw other riders in the absence of contrary evidence.   As this court held in Witchell v. De Korne (1986) 179 Cal.App.3d 965, 976–977, 225 Cal.Rptr. 176, “[i]t is the burden of a moving defendant, in order to succeed on a motion for summary judgment, to controvert all of the material allegations of plaintiff's complaint.   The failure to do so precludes summary judgment.”  (Italics added;  accord Brown v. Bleiberg (1982) 32 Cal.3d 426, 438, 186 Cal.Rptr. 228, 651 P.2d 815 [“a court may not consider the allegations of the complaint ‘except to the extent that they are not controverted by affidavits on either side ’ ”], original emphasis;  Pena v. W.H. Douthitt Steel & Supply Co. (1986) 179 Cal.App.3d 924, 929–930, 225 Cal.Rptr. 76;  Conn v. National Can Corp. (1981) 124 Cal.App.3d 630, 638–640, 177 Cal.Rptr. 445.)

 Here, the Harrolds alleged “[d]efendants willfully failed to warn Plaintiff CHARLENE I. HARROLD of the unstable temperament of the horse and/or tendency to throw riders, in spite of the fact that Defendants knew, or in the exercise of reasonable diligence should have known, that the horse had previously thrown riders.”   Defendants failed to controvert this allegation.   Accordingly, we must assume the allegation is true.  (See Brown v. Bleiberg, supra, 32 Cal.3d at pp. 438–439, 186 Cal.Rptr. 228, 651 P.2d 815;  Conn v. National Can Corp., supra, 124 Cal.App.3d at p. 640, 177 Cal.Rptr. 445.)

Defendants also argue Ms. Harrold was an experienced rider who knew there was a risk of injury.

 More importantly, even if the evidence was uncontroverted Ms. Harrold was an experienced rider, the assumption of risk doctrine would still not apply.   A person is not deemed to have assumed the risk unless she has actual knowledge of the specific danger involved and the magnitude of the risk involved.  (Grey v. Fibreboard Paper Products Co., supra, 65 Cal.2d at p. 244, 53 Cal.Rptr. 545, 418 P.2d 153;  Vierra v. Fifth Avenue Rental Service, supra, 60 Cal.2d at p. 271, 32 Cal.Rptr. 193, 383 P.2d 777;  Shahinian v. McCormick, supra, 59 Cal.2d at p. 567, 30 Cal.Rptr. 521, 381 P.2d 377.)

Here, there is no evidence Ms. Harrold knew of the horse's propensities to be spooked or to throw riders.   Thus, even if she was aware riders may fall off a horse, she was not aware she was exposed to an even greater risk because of the type of horse she was riding.   Absent such evidence, assumption of risk cannot apply because defendants cannot establish Ms. Harrold had actual knowledge of this horse's dangerous propensities and the increased danger to which she was exposed by riding this horse.

The opinion in Von Beltz v. Stuntman, Inc., supra, 207 Cal.App.3d 1467, 255 Cal.Rptr. 755, illustrates this point.   There, a stunt person was injured while performing a movie stunt.   The defendants argued the stunt person had implicitly assumed the risk by performing the stunt and, therefore, was barred from maintaining her action.   The Court of Appeal disagreed.

The Von Beltz court noted a stunt person may be deemed to have assumed the risk when performing a stunt when she has full awareness of the hazards she faces.  (Id. at p. 1479, 255 Cal.Rptr. 755.)   However, where the stunt is changed without the stunt person's knowledge, thereby increasing or altering the risk without the stunt person's acquiescence, the assumption of risk doctrine does not apply.  (Ibid.)

Here, any ordinary risk of falling off a horse was increased by the unusual propensities of the horse supplied to Ms. Harrold.   Since she was not apprised of this increased risk, her riding of the horse cannot be held to be an implied assumption of the risk.  (Von Beltz v. Stuntman, Inc., supra, 207 Cal.App.3d at p. 1480, 255 Cal.Rptr. 755;  accord Nelson v. Hall, supra, 165 Cal.App.3d at p. 715, fn. 4, 211 Cal.Rptr. 668 [assumption of risk does not apply where a person who knows of animal's dangerous propensity fails to disclose such propensity to another since the injured person is exposed to an unknown risk].) ⁴

Defendants rely heavily upon Ordway v. Superior Court, supra, 198 Cal.App.3d 98, 243 Cal.Rptr. 536, to argue the doctrine applies here.   However, Ordway involved a professional jockey who, prior to her accident, participated in 500 professional races.  (Id. at p. 101, 243 Cal.Rptr. 536.)   Further, the type of accident the plaintiff suffered was one to be expected by professional riders.  (Id. at pp. 111–112, 243 Cal.Rptr. 536.)   The Ordway court itself noted that if the plaintiff had been injured because of some conduct not ordinarily associated with the activity involved, the assumption of risk doctrine would not apply.  (Id. at pp. 110–111, 243 Cal.Rptr. 536.)   This, of course, is exactly what occurred here when Ms. Harrold was presented with a horse which was easily spooked by ordinary activity.  (See Mizushima v. Sunset Ranch, Inc., supra, 737 P.2d at p. 1161 [express assumption of risk did not bar plaintiff's action against ranch for providing horse with propensity to throw riders where plaintiff was not warned of horse's dangerous propensity].)

In sum, defendants failed to present conclusive evidence Ms. Harrold was informed of the horse's dangerous propensity.   Instead, they failed to present any evidence on that issue.   Therefore, the trial court erred in concluding the Harrolds' action was barred by the assumption of risk doctrine.

DISPOSITION

The judgment is reversed.   Appellants John and Charlene Harrold are to recover their costs on appeal.

I concur in the lead opinion but I dissent from the discussion in subparagraph II. E. expressing the position that the better reasoned view supports abolishment of reasonable implied assumption of the risk as a separate affirmative defense by making it inclusive in the comparative negligence scheme pronounced in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226.

The most cogent and thorough analysis of the affirmative defense of “assumption of risk” by a decision of an appellate court, following the landmark decision of the California Supreme Court in Li, supra, was undertaken by the Fourth Appellate District in Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 243 Cal.Rptr. 536.   The Ordway court, in a detailed analysis, came to the logical conclusion that reasonable implied assumption of the risk was indeed alive and well in California after Li.   The California Supreme Court denied a hearing in Ordway on April 7, 1988. In my view the Ordway solution is the preferred approach.

In other respects I concur in the lead opinion.

FOOTNOTES

1.   Although named as a defendant, the record does not contain any documents filed on Mr. Suderman's behalf.   There is no indication he was served with the complaint or, if so, that Mr. Suderman filed an answer.   Accordingly, all future references to the defendants are intended to include only GOAA and Rolling J.

2.   Although the Supreme Court has never elaborated upon what forms of assumption of risk survive Li v. Yellow Cab Co., supra, dicta exists in subsequent cases from which it can be argued the Court considers this defense a continuing part of the negligence equation.  (See, e.g., Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1123, 245 Cal.Rptr. 658, 751 P.2d 923;  Lipson v. Superior Court (1982) 31 Cal.3d 362, 370, 182 Cal.Rptr. 629, 644 P.2d 822;  Walters v. Sloan (1977) 20 Cal.3d 199, 204, 142 Cal.Rptr. 152, 571 P.2d 609.)

3.   It is well-settled express contractual assumption of risk survives California's adoption of the comparative fault system.   (Madison v. Superior Court (1988) 203 Cal.App.3d 589, 597, 250 Cal.Rptr. 299.)   Accordingly, we limit our discussion to issues of implied assumption of risk.

4.   At oral argument, defendants expressly conceded this point by agreeing that if the trial court could properly consider that the horse had a propensity to throw riders or to spook easily, a triable issue of fact existed and summary judgment was improper.

JOHNSON, Associate Justice.