Metropolitan News-Enterprise


Thursday, August 27, 2009


Page 1


C.A. Tosses Claim by Attorney Thrown From Horse


By SHERRI M. OKAMOTO, Staff Writer


A deputy attorney general who attended a social gathering at a cattle ranch celebrating a legal victory she had secured could not sue the hosts of the event for injuries she sustained after she took one of the rancher’s horses for a ride and fell from her mount into a feed bunk, the Third District Court of Appeal held yesterday.

Ellyn Levinson of Oakland“ ‘bit off more than she could chew’ and has only herself to blame for her inability to control a horse that behaved as a horse,” the panel said, affirming Tehama Superior Court Judge Edward J. King III’s grant of summary judgment in favor of Bert and Anne Owens based on the doctrine of assumption of risk.

While representing the California Department of Conservation in 2005, Levinson had secured an injunction preventing Tehama County from approving a lot line adjustment. Bert Owens was one of the landowners involved in the litigation.

In celebration of the favorable ruling, the Owenses organized a barbecue on their ranch, inviting Levinson and others who had been involved in the case.

The Owenses claimed that Levinson had asked whether she would be able to do any horseback riding while at the ranch. Anne Owens said Levinson told her she had ridden before, explaining “I took her [statement] that she’s ridden [to mean that] she’s ridden.”

On the day of the barbecue, Levinson mounted a quarter horse named Pistol, who had been trained for work sorting cattle on the ranch and for reining and team penning events at amateur rodeo competitions.

According to Levinson’s version of events, as Bert Owens was adjusting the stirrups for her feet, she pulled on the reins, causing Pistol to rear his head and move. Owens then told her not to pull back on the reins because the horse was “sensitive.”

Aside from this instance, Levinson insisted that the horse did nothing to make her uncomfortable about riding him.

She said one of the other guests had asked her if she had ridden a horse before and she responded that she had ridden a horse “at the park.” Bert Owens allegedly never asked her about her experience on horseback.

Levinson rode Pistol through a small corral and into a larger field without incident, but then the horse broke into a gallop. Levinson said she recalled her feet coming out of the stirrups and dropping the reins as she struggled to remain on the horse.

Pistol then abruptly cut to the left, throwing Levinson from his back, she said. Her body hit a fence before she tumbled into a trough, causing her to sustain cuts to her face and a broken hip.

Levinson later sued the Owenses for negligence and negligent infliction of emotional distress.

The Owenses moved for summary judgment, describing Pistol as a gentle and well-behaved horse who was comfortable around people. Levinson did not dispute these representations, but submitted an expert declaration opining that Pistol’s alleged behavior—bolting without warning, galloping full-speed toward the fence and then abruptly spinning—was not a risk reasonably associated with “normal horseback riding.”

King granted the Owenses’ motion, finding that they had not done anything to increase the risk to Levinson in riding Pistol.

Writing for the appellate court, Presiding Justice Arthur G. Scotland agreed, distinguishing the Owenses, as social hosts who had granted a guest’s request to ride one of their horses, from commercial operators whose services and horses were for hire.

“[T]hey were not riding instructors and they did not direct Levinson to ride in any particular way, or in any particular place, that could increase the risk beyond that inherently involved in doing what Levinson asked to do—ride a cattle horse in the field of a cattle ranch,” Scotland said.

As Levinson was at a working cattle ranch, Scotland suggested that she should have expected the horses there to be trained in working cattle and that Pistol “would not be a plodder” and “could give her a more exciting ride than would a trail ride horse.”

Scotland further reasoned the fact that Pistol was trained as a cattle horse to engage in abrupt movements did not present a triable issue of fact as to whether he was an “unduly dangerous” horse for the purpose of noncommercial pleasure riding on a working cattle ranch.

“Pistol is precisely the type of horse that a rider would expect to find and ride at the ranch,” Scotland said.

“The thrust of plaintiffs’ position really is that Pistol was unduly dangerous in the circumstances of this case because Levinson was not experienced enough in horseback riding to control Pistol,” the justice surmised.

But in light of Levinson’s representation that she had experience on horseback, Scotland concluded that the Owenses were entitled to accept that statement “at face value” and did not have to “quiz” Levinson about her skill level.

“Indeed, imagine how awkward it would have been for Bert and Anne to question the attorney’s confident expression of competence as a horseback rider,” he said.

Based on her asserted experience, the Owenses also had no reason to believe Levinson needed instruction on how to control Pistol, and, as a matter of law, had no duty to so instruct her, Scotland added, positing that no “person who has ridden a horse, including those with minimal experience” would have reasonably interpreted an instruction not to pull on the reins while a horse is standing still to as a direction to never utilize the reins in order to control the horse.

Justices George Nicholson and Tani Cantil-Sakauye joined Scotland in his decision.

The case is Levinson v. Owens, 09 S.O.S. 5224.


Copyright 2009, Metropolitan News Company