Court of Appeal:
Assumption-of-Risk Clause Didn’t Apply to Conduct Boosting Horseback-Riding Danger
Majority Says Accident, If Caused by Negligent Selection of Horse For 12-Year-Old to Ride, Not Within Contemplation of Clause
By a MetNews Staff Writer
A mother who signed a contract for her daughter’s enrollment at a summer camp which recites the dangers inherent in horseback riding did not, on behalf of the child, assume the risk of an injury attributable to any negligence in choosing a hard-to-control horse for the 12-year-old girl to ride, the Court of Appeal for this district held yesterday, in a 2-1 decision.
When the horse attempted to jump over a log, the girl, Ava Browne, was thrown off, incurring a spinal injury. She required emergency surgery and, now 17, allegedly still suffers ill-effects from the fall.
Justice Hernaldo J. Baltodano authored the unpublished majority opinion, in which Presiding Justice Arthur Gilbert joined. Justice Kenneth Yegan dissented.
The opinion affirms a judgment, pursuant to a jury’s verdict, in favor of defendant Foxfield Riding School and riding instructor Katelyn Puishys on a cause of action for gross negligence but reverses a nonsuit granted by Ventura Superior Court Judge Matthew P. Guasco on a cause of action for ordinary negligence.
The contract, signed by the mother, Kelly Browne, includes this language:
“I have sufficient knowledge of horses to understand their unpredictability and potentially dangerous character in general and I understand that the use, handling, and riding of a horse ALWAYS involves risk of bodily injury to anyone who handles or rides horses, as well as the risk of damaging the property of others. I understand that any horse, irrespective of its training and usual past behavior and characteristics, may act or react unpredictably at times, based on instinct or fright, which likewise is an inherent risk assumed by one who handles/rides horses.”
“I expressly assume such risk and hereby waive any claims that I might have against Foxfield Riding School, its Teachers, Counselors and Trainers, on behalf of the above mentioned camper or myself. I agree to pay all doctor or hospital fees if the child is injured while staying at Foxfield.”
“Read in context, the waiver language appears in the same sentence as the releasee’s assumption of inherent risks. Thus, we interpret it to encompass only those injuries resulting from the inherent risks of riding or handling of horses, not injuries resulting from Defendants’ alleged negligent acts. It is not a waiver of all liability.”
The jurist went on to say:
“The only risks the Brownes assumed was related to the inherent risks of horseback riding. They did not assume liability attributable to Defendants’ negligence or conduct that increased the inherent risks in horseback riding. Nonsuit should have been denied.”
The defendants maintained that any error was harmless because, given that a jury exonerated it in connection with gross negligence, it would have done the same with respect to conduct of a less blameworthy nature. Baltodano responded:
“We do not know whether the jury would have found for the Brownes on a claim that only required finding that Defendants breached a legal duty that proximately caused Ava’s injuries. We thus cannot say that the grant of nonsuit was harmless.”
Dissenting, Yegan said:
“Mother knew and knows that riding a horse is dangerous and that people can be seriously injured when riding a horse. Mother agreed to accept this risk for her daughter. To be sure, she did not actually expect that daughter would be hurt but she knew, or should have known, that this was a foreseeable risk. The riding school had a reasonable expectation that it would not be the subject of a lawsuit based on a claim of negligence. These reasonable expectations should account for something.”
“How could riding and jumping a horse not be covered by the release? Just what is the effect of mother’s signature on the release directed to?”
The jurist commented:
“The fair import of the document is that it releases riding school from the theoretical negligence of the instructor who picked the horse and who made the decision to jump in the field. It is always possible for a plaintiff to characterize such decisions as “increasing the risk of harm.”
The parties stipulated before trial that the medical expenses arising from the mishap amounted to $48,997.49. Yegan argued:
“And the last line of the waiver and release document that mother signed could not be more explicit: ‘I agree to pay all doctor or hospital fees if [my] child is injured while staying at Foxfield [riding academy].’ This last sentence is in no way ambiguous and a reasonable person can only read it as a release of any obligation of riding school to pay these fees.”
Guasco ordered the plaintiff to pay the defendants costs amounting to $96,574.98 based on the rejection of an offer of compromise, pursuant to Code of Civil Procedure §998 for $2,500. That award was vacated yesterday as the result of reinstituting the cause of action for ordinary negligence.
The case is Browne v. Foxfield Riding School, B315743.
Plaintiff/appellant Ava Browne was represented on appeal by Glendale attorney Lisa M. Burnett of Sacro & Walker LLP and by Becky S. James of San Antonio, Texas. Acting for the school and its instructor were Elaine K. Fresch, Jerry C. Popovich and Melanie M. Smith of the downtown Los Angeles firm of Hawkins Parnell & Young.
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