Tuesday, May 28, 2002
Court of Appeal Rejects Assumption-of-Risk Defense, Reinstates Suit by Girl Thrown From Horse
By KENNETH OFGANG, Staff Writer/Appellate Courts
A child who was thrown from a horse while attending Girl Scout camp did not, as a matter of law, assume the risk that the horse would have a propensity for violent movements, this district’s Court of Appeal ruled Friday.
Div. Eight reinstated a suit brought on behalf of Meghann Giardano against Bart Brown, the operator of Yosemite Equestrian Services. Brown supplied horses to the camp, operated by the San Fernando Valley Girl Scout Council.
The council was also sued, but was not a party to the appeal.
Meghann was 11 years old when the accident occurred in 1998. Her complaint alleged that she was an inexperienced rider, that the defendant had actual or constructive knowledge that the horse Quarter was unsuitable for young, inexperienced riders; and that the defendants were negligent in allowing her to tie the horse to the hitching post.
Meghann was injured when the horse became “spooked,” causing her fingers to be caught in the rope. She lost one finger and had to have another amputated.
Brown moved for summary judgment, denying knowledge that the horse had any dangerous propensities. He cited Meghann’s deposition, in which she testified that the horse did not seem “hyper” and that she saw no unusual movements by the horse before she was injured.
The plaintiff responded that several of the horses provided by Brown to Camp Lakota exhibited “head-shyness,” meaning a tendency to hesitate or spook because of motions near or toward the head. The injury, the plaintiff said, was a result of the defendant having supplied a head-shy horse and of using a lead-rope rather than a safer leash-type device that would have avoided the injury.
Retired Los Angeles Superior Court Judge Haig Kehiayan, sitting on assignment, granted summary judgment. He said there was insufficient evidence that the horse was “unduly dangerous” and noted that camp counselors testified that the horse was not considered dangerous, and that the camp continued to use the horse after the accident.
But Presiding Justice Candace Cooper, writing for Div. Eight, said the evidence was conflicting as to the defendant’s knowledge.
The jurist cited deposition testimony by one of the counselors, who said she had noticed before the accident that Quarter appeared head shy. If the counselor noticed that, Cooper said, it is reasonable to believe that the defendant should have.
The presiding justice also rejected the defendant’s reliance on the assumption-of-risk doctrine.
Under the rule announced by the Supreme Court in the 1992 case Knight v. Jewett, 3 Cal.4th 296, Cooper explained, a participant in a beneficial activity is deemed to accept all inherent risks of that involvement. That acceptance is called primary assumption of the risk and is a complete defense to a tort action.
But if an injury results from a defendant’s creation of a risk not inherent in the activity, or from wrongful conduct that increases the inherent risk, the plaintiff’s participation is considered secondary assumption of the risk, and any suit would be tried under comparative negligence rules.
In what she acknowledged to be a close question, Cooper said the plaintiff had submitted enough evidence to get to trial on the issue of whether Brown increased the risk of injury “by either providing a horse inappropriate to the skill level of the novice riders or failing to warn of the horse’s unusual and unsafe disposition.”
Thomas V. Girardi, James B. Kropff and Amanda L. McClintock of Girardi and Keese represented the plaintiff; Thomas L. Wilson and Bill H. Kollias of Pivo, Halbreich, Cahill & Yim were counsel for the defendant.
The case is Giordano v. Brown, B146437.
Copyright 2002, Metropolitan News Company