Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. EC043159 Laura A. Matz, Judge.
Law Offices of Lowell Steiger, Lowell Steiger, and Ira Cohen for Plaintiff and Appellant.
Selman Breitman, Elaine K. Fresch, and Rachel E. Hobbs for Defendants and Respondents.
SUZUKAWA, J.
Plaintiff Lisa Deutsch appeals from the judgment entered in favor of defendants Traditional Equitation School (TES) and Patricia Kinnaman, TES’s owner, following the trial court’s grant of defendants’ summary judgment motion. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed the present negligence action against defendants on July 19, 2006. The operative complaint alleges that plaintiff was a beginning equestrian student at TES in September 2004. TES assigned plaintiff a horse that “had a temperament and reputation for skittishness[,] particularly when ridden by inexperienced, beginning students,” but plaintiff was neither advised of the horse’s temperament nor properly taught how to control him. On September 2, 2004, plaintiff was thrown from the horse and suffered severe and disabling injuries.
A third defendant, Cody Tavern, was never served. He was dismissed with prejudice on August 1, 2007.
Defendants moved for summary judgment on May 4, 2007. The motion asserted that defendants were entitled to judgment as a matter of law because: (1) plaintiff’s sole cause of action for negligence was barred by the doctrine of primary assumption of risk; and (2) plaintiff had signed a release of “‘all claims, demands, actions or causes of action of any kind or character whatsoever’” against TES. Plaintiff opposed the motion, asserting that triable issues of material fact precluded summary judgment on both grounds.
The undisputed evidence submitted by the parties established as follows. Plaintiff enrolled in riding lessons at TES in early 2004. Before her first lesson, plaintiff took a “tack course” at TES where she was taught “to brush and clean a horse and put [on] the saddle and related tack.” She also was evaluated by TES instructors to determine her proficiency on a horse. As part of the evaluation, plaintiff was asked to mount the horse and to “[w]alk and trot and stop and start.” She was able to do each of these tasks: She moved the horse into a trot by kicking the horse’s side with her heels, and she stopped the horse by pulling back on its reins. TES rated plaintiff a “beginner” based on its evaluation of her skills.
Plaintiff’s first and second lessons were taught by Cody Tavern (Cody). During her first lesson, Cody taught plaintiff to signal the horse to walk or trot by “squeez[ing] the horse’s body with [her] thighs.” Plaintiff does not recall that Cody taught her how to stop the horse during that lesson.
Plaintiff was assigned a horse named “Utah” to ride during her second lesson. She tacked the horse and then led it to the parking lot. There, Cody “admonished [plaintiff] for [her] poor tacking and he pulled on that cinch thing so tight [she] couldn’t believe it. . . . [He] [s]eemed to re-adjust everything . . . and gave [Utah] a good yank.” Plaintiff and Cody then lead Utah into the riding ring and Cody helped plaintiff onto the horse.
At Cody’s direction, plaintiff walked Utah in a circle around the ring. Cody then directed plaintiff “to go up to a trot.” Plaintiff attempted to do so either by “trying that squeezing thing with my thighs that he taught me in the previous lesson or I might have kicked her.” Utah did not begin to trot but, instead, “took off like a bat out of hell.” Plaintiff recalled as follows: “I guess she made the same circle that we were making in the walk. Some reason she turned around, I don’t know why, and she started just running like crazy right at Cody or Cody jumped in front of her. I’m not sure but we were running straight for him and the bleachers and we were flying.” Cody attempted to stop the horse by lifting his hands up in “this stop motion, two palms facing out way high up in the air.” Then, as the horse approached him, “the horse turn[ed] left and [plaintiff] fl[ew] right” and fell to the ground.
The undisputed evidence is that prior to plaintiff’s accident, Utah had never bolted when ridden by a student or an instructor at TES.
The trial court granted defendants’ motion for summary judgment on July 20, 2007. It held that primary assumption of risk barred plaintiff’s negligence claim and, thus, it did not reach defendants’ alternative contention that the claim was barred by plaintiff’s release. The court found as follows: “It is undisputed that at the time of the accident, plaintiff was horseback riding, that she was thrown from the horse and that being thrown from a horse is a risk inherent in horseback riding. See Harrold v. Rolling J Ranch (1993) 19 Cal.App.4th 578, 587. [Citation to record.] Defendants have provided uncontroverted evidence that in the two years prior to the incident, the entire period in which TES owned the horse in question, it had never exhibited any problematic behavior. [Citation to record.] There is no evidence that the animal was inherently dangerous. In response, plaintiff has failed to produce evidence sufficient to support a reasonable inference that defendants brea[ch]ed their duty not to increase the risks inherent in the activity of horseback riding. Plaintiff’s arguments that the risks of horseback riding were increased because the instructor has no formal training in horseback riding instruction and had not formally instructed the plaintiff how to stop the horse fails to demonstrate . . . how this increased any risk here. Plaintiff admits she already knew how to stop a horse and had been evaluated before her lessons began and did not testify that the horse bolted because of anything the instructor did or did not do. [Citation to record.] Her argument [that] the risks of being thrown were increased bec[au]se the instructor purportedly jumped in front of the horse and waived his arms in the air finds no evidentiary support in the record provided the court, but even if it did, any such reaction would seem to be mere negligence and not something that increased the risk ordinarily associated with the sport sufficient to take this situation outside of the assumption of the applicable risk doctrine.”
The court noted that plaintiff’s opposition papers were not timely filed and did not comply with the requirements of Code of Civil Procedure section 437c, subdivision (b)(3) or California Rules of Court, rule 3.1350(h). Nonetheless, the court considered them because “defendants filed reply papers demonstrating they were able to ascertain the substance of plaintiff’s argument.”
The court ruled as follows on defendants’ objections to the testimony of plaintiff’s expert, Rod Bergen: “The court has considered his . . . testimony, but has not considered the opinions with respect to the ultimate legal issue of whether the stated conduct increased the risks inherent in the activity of horseback riding since this i[s] not an unknown, esoteric sports activity and in those circumstances the court is charged with reaching its own conclusions as to the ultimate legal questions. Speculation objection to statement in paragraph 20 that the cinch was ‘possibly’ tightened excessively is sustained. Remaining objections overruled.”
The court entered judgment on August 16, 2007, and notice of entry of judgment was served on August 21, 2007. Plaintiff filed this timely appeal from the judgment on October 17, 2007.
DISCUSSION
I. Standard of Review
The standard of review for summary judgment is well established. The motion “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A moving defendant meets its burden of showing that a cause of action has no merit by establishing that one or more elements of a cause of action cannot be established or that there is a complete defense. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-850; Lackner v. North (2006) 135 Cal.App.4th 1188, 1196.)
We independently review an order granting summary judgment, viewing the evidence in the light most favorable to the nonmoving party. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768; Lackner v. North, supra, 135 Cal.App.4th at p. 1196.) To perform our independent review of the evidence, “we apply the same three-step analysis as the trial court. First, we identify the issues framed by the pleadings. Next, we determine whether the moving party has established facts justifying judgment in its favor. Finally, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable, material fact issue.” (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438.)
In determining whether there are triable issues of material fact, we consider all the evidence set forth by the parties, except that to which objections have been made and properly sustained. (Code Civ. Proc., § 437c, subd. (c); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) We accept as true the facts supported by plaintiff’s evidence and the reasonable inferences therefrom (Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 148), resolving evidentiary doubts or ambiguities in plaintiff’s favor (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at p. 768).
II. The Trial Court Correctly Found That There Were No Triable Issues of Material Fact as to Alleged Breaches of Duty by Defendants
Plaintiff’s complaint alleges a single cause of action for negligence—the breach of a duty to use due care. It alleges that defendants were negligent in two ways: (1) they assigned plaintiff a horse that had “skittish tendencies” and thus was unsuitable for a beginning rider; and (2) they failed properly to instruct plaintiff to control the horse to which she was assigned.
The trial court concluded that plaintiff’s negligence claim was barred by the doctrine of primary assumption of the risk because falling off a horse is an inherent risk of horseback riding. For the reasons that follow, we agree.
A. The Primary Assumption of Risk Doctrine
As a general rule, persons have a duty to use due care to avoid injury to others, and they may be held liable if their careless conduct injures another person. (Knight v. Jewett (1992) 3 Cal.4th 296, 315 (Knight); Civ. Code, § 1714.) However, some activities—specifically, many sports—are inherently dangerous, and imposing a duty to mitigate their inherent dangers could alter the nature of the activity or inhibit vigorous participation. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.) Thus, our Supreme Court has carved out an exception—termed “primary assumption of risk”—to the general principle that all persons owe one another a duty to use due care. (Knight, supra, 3 Cal.4th 296.)
Our Supreme Court first articulated the modern doctrine of primary assumption of risk in Knight, supra, 3 Cal.4th 296. There, the plaintiff was severely injured during a game of touch football when the defendant, a player on the opposing team, knocked her down and stepped on her hand. (Id. at pp. 300-301.) The trial court granted summary judgment for the defendant, concluding that there was no breach of duty. (Id. at p. 303.) The Supreme Court affirmed.
The court explained that although persons generally have a duty to use due care to avoid injury to others, “[i]n the sports setting, . . . conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself.” (Knight, supra, 3 Cal.4that p. 315.) For example, “although moguls on a ski run pose a risk of harm to skiers that might not exist were these configurations removed, the challenge and risks posed by the moguls are part of the sport of skiing, and a ski resort has no duty to eliminate them. [Citation.]” (Ibid.) The court held that defendants generally have no duty to eliminate or protect plaintiff against risks inherent in a sport itself. They do, however, have a duty “to use due care not to increase the risks to a participant over and above those inherent in the sport.” (Id. at pp. 315-316.) The court explained: “[A]lthough a ski resort has no duty to remove moguls from a ski run, it clearly does have a duty to use due care to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm. The cases establish that the latter type of risk, posed by a ski resort’s negligence, clearly is not a risk (inherent in the sport) that is assumed by a participant. [Citation.]” (Id. at p. 316.) The court thus articulated the following rule: “[W]e conclude that a participant in an active sport breaches a legal duty of care to other participants—i.e., engages in conduct that properly may subject him or her to financial liability—only if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.” (Id. at p. 320, fn. omitted.)
Applying this test to the case before it, the court concluded that the trial court had correctly granted summary judgment for defendant. “The declarations filed in support of and in opposition to the summary judgment motion establish that defendant was, at most, careless or negligent in knocking over plaintiff, stepping on her hand, and injuring her finger. Although plaintiff maintains that defendant’s rough play as described in her declaration[s] properly can be characterized as ‘reckless,’ the conduct alleged in those declarations is not even closely comparable to the kind of conduct—conduct so reckless as to be totally outside the range of the ordinary activity involved in the sport—that is a prerequisite to the imposition of legal liability upon a participant in such a sport.” (Knight, supra, 3 Cal.4th at pp. 320-321.) Thus, there was no breach of duty as a matter of law.
Although Knight addressed the duties owed in a touch football context, post-Knight cases have extended the primary assumption of risk doctrine to many other inherently dangerous sports, including horseback riding. Further, the cases have extended the doctrine to limit not only the duties owed by coparticipants in a sport to one another, but also to limit the duties owed by providers of recreational equipment (including horses) to their patrons, and the duties owed by teachers or coaches to students. We address these cases below.
B. Defendants’ Duty to Provide an Appropriate Horse to Plaintiff
Plaintiff’s primary contention is that defendants breached a duty of care to her by providing her with a horse that was unsuitable for a beginning rider. She alleges as follows: “Defendants . . . had a duty and obligation to select horses with appropriate temperament for use by beginning students from its [sic] inventory of horses. Defendants . . . breached said duty by affirmatively selecting a horse known to Defendants to be unsuitable for the instruction of beginners such as Plaintiff.”
We are aware of three post-Knight cases that address a defendant’s duty to provide riding students with safe horses. The first is Tan v. Goddard (1993) 13 Cal.App.4th 1528. There, the plaintiff, Tan, was a student of a jockey school. The school knowingly assigned plaintiff an injured horse, telling him to ride the horse easily “‘to see how [the horse] was.’” (Id. at p. 1531.) Plaintiff was injured when the horse stepped on an object and its front legs gave way. (Ibid.) This court held that primary assumption of risk did not bar plaintiff’s case as a matter of law. We explained: “According to his testimony and declaration, [plaintiff] placed himself in the hands of the jockey school’s riding trainer. He did what the instructor, Davis, told him to do. Davis was not a coparticipant in sport with Tan, but was charged with instructing him how to ride a horse. It was Davis who assigned Faraway Falcon to Tan to ride, knowing that the horse was ‘off’ due to an injury; it was Davis who told Tan to jog the horse on the outer track on the school’s premises; and it was he who knew, or should have known, of the rocky condition of that track. [¶] We conclude that under the circumstances presented by the summary judgment papers, reasonably construed in appellant’s favor, Davis’s role as riding instructor to Tan was such that he owed Tan a duty of ordinary care to see to it that the horse he assigned Tan to ride was safe to ride under the conditions he prescribed for that activity.” (Id. at p. 1535.)
The next case to consider the duty to provide a safe horse to a rider is Harrold v. Rolling J Ranch, supra, 19 Cal.App.4th 578. There, the plaintiff was a member of a resort owned by defendant. She was injured while vacationing at the resort when the horse she was riding spooked and threw her to the ground as she attempted to remove her sweater. (Id. at pp. 581-582.) Plaintiff had not been told that her horse previously had spooked and thrown a rider who waved his hat. (Id. at p. 582.) The court held that primary assumption of risk barred plaintiff’s case, explaining as follows: “There is no doubt horseback riding, even the rather tame sport of riding on the back of walking horses in an afternoon trail ride, carries some inherent risk of injury. A horse can stumble or rear or suddenly break into a gallop, any of which may throw the rider. But this does not necessarily mean the commercial operator of the horse-riding facility owes no duty of care to those who rent its horses and can never be liable for injuries suffered because a horse stumbles, rears, or suddenly breaks into a gallop. The commercial operator has a duty to supply horses which are not unduly dangerous. [Fn. omitted.] Furthermore, the operator owes the duty 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.” (Id. at p. 587.) It continued: “[W]e stop short of imposing a duty on stable owners 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 as excessive spurring or waving of a coat as in this case. We view sudden movements of a horse just as inherent in horseback riding as the presence of moguls on a ski slope are to skiers. [¶] Public policy supports not imposing a duty on commercial operators of horse-renting facilities which provide supervised trail rides, to supply ‘ideal’ horses, but we stop short of eliminating any duty such as a duty to warn of a dangerous propensity in a given horse. However, the one prior incident of the subject horse having spooked does not rise to the level of a dangerous propensity, in our opinion. It does rise to the level of a ‘horse behaving as a horse’ with no incumbent duty on the part of the stable operator. In our opinion, to impose some sort of duty on a lessor of horses when a ‘horse acts as a horse’ is to tell the commercial world that strict liability is imposed for any action of a horse inherent in horseback riding.” (Id. at p. 588.)
The duty to provide a rider with an appropriate horse was considered for a third time in Giardino v. Brown (2002) 98 Cal.App.4th 820. There, the plaintiff was a child who was injured while trying to tie a horse supplied to her summer camp by the defendant, Yosemite Equestrian Service. In opposition to summary judgment, the plaintiff introduced evidence that her horse exhibited “head-shyness,” a condition when a horse hesitates or spooks because of motions toward or near its head. (Id. at pp. 823-824.) The Court of Appeal reversed the trial court’s grant of summary judgment for defendant, holding that primary assumption of risk did not bar plaintiff’s claim as a matter of law. It explained that while there may be no duty to provide “‘ideal’” horses to a children’s camp, “there is a duty at least not knowingly or without due care to provide horses inappropriate for beginning riders to a children’s camp for novice riders.” (Id. at p. 834.) Thus, “[i]f it can be shown that [defendant] increased the risk of harm to plaintiff above that normally associated with learning to ride horses at a Girl Scout camp, 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, the doctrine of assumption of the risk does not apply.” (Id. at p. 835.) The court concluded that plaintiff’s evidence raised triable issues as to the suitability of horses provided by defendant: “We conclude plaintiff has successfully raised material issues of fact as to whether [the horse’s] disposition was unsafe to beginning riders, was known or should have been known to defendant, and whether that disposition increased the inherent risk for a child to be involved in a beginning horseback riding program. . . . [Thus], summary judgment should not have been granted.” (Id. at p. 837.)
Taken together, these three cases suggest that defendants had a duty to provide plaintiff with a horse appropriate for a beginning rider. The cases also suggest, however, that “sudden movements of a horse [are] just as inherent in horseback riding as the presence of moguls on a ski slope are to skiers” (Harrold v. Rolling J Ranch, supra, 19 Cal.App.4th at p. 588), and thus that a horse’s “sudden movement” on a single occasion does not support an inference that the horse was not appropriate for an inexperienced rider. Accordingly, to defeat summary judgment, plaintiff had to introduce evidence that prior to her accident Utah behaved in a way that should have alerted defendants to the horse’s alleged dangerous propensities or unsuitability for a beginning rider.
In support of their motion for summary judgment, defendants introduced the declaration of Kinnaman, TES’s president, and Lowell Peterson, TES’s barn manager. Kinnaman testified that she knows Utah to be “a gentle, well-behaved horse utilized by TES in beginner lessons.” Peterson testified that she had used Utah in beginner lessons with numerous students for approximately two years before plaintiff’s accident and that “[a]t no time prior to Ms. Deutsch’s lesson on September 2, 2004, had Utah ‘run away’ when ridden by an instructor or a student at TES.” Further, she said, “Based on my knowledge and experience as a riding instructor, as an equestrian and as a Barn Manager, as well as my personal knowledge and experience with this particular horse, I consider Utah to be an easy-going, well-behaved horse suitable for beginner riding lessons.” This testimony was sufficient to satisfy defendants’ burden to show that plaintiff’s cause of action has no merit, thus shifting to plaintiff the burden to show a triable issue of material fact.
Plaintiff failed to meet this burden. Her only evidence was the testimony of equestrian expert Rod Bergen, who testified as follows: “Based on the description of the incident, it appears that Utah was not subjected to any of the specific training that typically would be necessary to render the horse suitable as a safe animal to be used for the schooling of inexperienced riders (while a horse may be considered ‘safe’ for those riders that are experienced, it may, in fact not be a totally safe ‘school horse’ for beginners). As a matter of fact, based upon Ms. Peterson’s testimony that there was no written training evaluation of this, or any other [TES] horses, it is evident that not only Utah but, also none of the horses used for schooling purposes at the [TES], received proper training prior to being placed ‘in service’ with the school’s students. The failure of Utah to remain under control while being ridden by Ms. Deutsch indicates a horse that was unsafe for the instruction of a beginning student.” (Emphasis added.)
Bergen’s testimony fails to raise a triable issue of fact because his conclusion that Utah was not suitable for a beginning rider was based entirely on the horse’s behavior on the day of plaintiff’s accident. In other words, Bergen’s opinions about Utah’s temperament and training were, by his own admission, “[b]ased on the description of the accident” and, specifically, on Utah’s failure “to remain under control while being ridden by Ms. Deutsch.” The cases discussed above are clear, however, that a horse’s unsuitability for a rider cannot, as a matter of law, be inferred from the fact that the horse made a sudden or unexpected movement on a particular occasion. Rather, to raise a triable issue of fact as to the horse’s suitability, a plaintiff must introduce independent evidence (such as the evidence submitted in Tan v. Goddard, supra, 13 Cal.App.4th at pp. 1530-1532, that plaintiff’s horse had been injured prior to plaintiff’s accident and was “off”) that the horse was not suitable for the activity prescribed. Bergen’s declaration does not contain any such independent evidence, and thus it does not raise a triable issue of material fact as to Utah’s alleged unsuitability for a beginning rider.
C. Defendants’ Duty to Teach Plaintiff How to Safely Ride and Control a Horse
Plaintiff also urges that defendants breached a duty of care owed her by failing to teach her to safely ride and control a horse. Her complaint alleges: “At no time prior to mounting UTAH did Defendant coach or instruct Plaintiff in the actions to be taken in the event that UTAH began to move without being directed to do so by the rider, nor was Plaintiff properly or adequately instructed in certain critical terms of art pertaining to the control of horses in general and UTAH in particular.”
We begin by examining the cases that discuss the duty owed by an instructor to a student in the context of an inherently dangerous sport, such as horseback riding. The seminal case on this issue is Kahn v. East Side Union High School Dist., supra, 31 Cal.4th 990 (Kahn). There, a 14-year-old member of a school’s junior varsity swim team was catastrophically injured while participating in a swim meet under the supervision of her swim coach. (Id. at p. 995.) The court acknowledged that the relationship of a sports instructor to a student differs from the relationship between coparticipants in a sport, but it nonetheless held that the same limited standard of care articulated in Knight, supra, 3 Cal.4th 296, should apply. It explained: “[B]ecause a significant part of an instructor’s or coach’s role is to challenge or ‘push’ a student or athlete to advance in his or her skill level and to undertake more difficult tasks, and because the fulfillment of such a role could be improperly chilled by too stringent a standard of potential legal liability, we conclude that the same general standard should apply in cases in which an instructor’s alleged liability rests primarily on a claim that he or she challenged the player to perform beyond his or her capacity or failed to provide adequate instruction or supervision before directing or permitting a student to perform a particular maneuver that has resulted in injury to the student.” (Kahn, at p. 996.)
The court continued: “[T]he risks associated with learning a sport may themselves be inherent risks of the sport, and . . . an instructor or coach generally does not increase the risk of harm inherent in learning the sport simply by urging the student to strive to excel or to reach a new level of competence. . . . [I]nstruction in a sport frequently entails challenging or ‘pushing’ a student to attempt new or more difficult feats, and . . . ‘liability should not be imposed simply because an instructor asked the student to take action beyond what, with hindsight, is found to have been the student’s abilities.’ (Bushnell v. Japanese-American Religious & Cultural Center [(1996)] 43 Cal.App.4th [525,] 532.) As a general matter, although the nature of the sport and the relationship of the parties to it and to each other remain relevant, a student’s inability to meet an instructor’s legitimate challenge is a risk that is inherent in learning a sport. To impose a duty to mitigate the inherent risks of learning a sport by refraining from challenging a student . . . could have a chilling effect on the enterprise of teaching and learning skills that are necessary to the sport.” (Kahn, supra, 31 Cal.4th at pp. 1006-1007.)
The court thus defined the applicable standard of care as follows: “In order to support a cause of action in cases in which it is alleged that a sports instructor has required a student to perform beyond the student’s capacity or without providing adequate instruction, it must be alleged and proved that the instructor acted with intent to cause a student’s injury or that the instructor acted recklessly in the sense that the instructor’s conduct was ‘totally outside the range of the ordinary activity’ (Knight, supra, 3 Cal.4th at p. 318) involved in teaching or coaching the sport.” (Kahn, supra, 31 Cal.4th at p. 1011, italics added.) Applying this test, the court concluded that the plaintiff had raised a triable issue of material fact as to her instructor’s recklessness: “Plaintiff presented evidence, both documentary and expert, that a settled progression of instruction in the dive is considered essential to a student’s safety. Her own declaration and deposition testimony was that she had not received any instruction at all from her coaches or teammates on the performance of the shallow-water dive. She also claimed that she had expressed a mortal fear of performing the shallow-water dive and that she had been assured by the coach that she would not be required to perform it. Her evidence was that the coach made a last-minute demand that she take a position in the relay race that would require her to dive, threatening that if she did not comply, either she would be dropped from the team or she would not be permitted to compete that day.” (Id. at pp. 1011-1012.) Thus, the court said: “We agree that the following factors indicated a triable issue with respect to whether the coach’s behavior was reckless: the lack of training in the shallow-water dive disclosed by plaintiff’s evidence, especially in the face of the sequenced training recommended in the Red Cross manual submitted by plaintiff; the coach’s awareness of plaintiff’s deep-seated fear of such diving; his conduct in lulling her into a false sense of security through a promise that she would not be required to dive, thereby eliminating any motivation on her part to learn to dive safely; his last-minute breach of that promise under the pressure of a competitive meet; and his threat to remove her from the team or at least the meet if she refused to dive.” (Id. at p. 1012.)
The Court of Appeal applied the principles articulated in Kahn to horseback riding in Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476. There, the plaintiff was thrown from her horse during a guided trail ride provided by defendant. The gist of plaintiff’s complaint was that her guide, knowing that the horses behind him would follow and adjust to the gait of his horse, suddenly caused his horse to gallop without warning the other riders, causing plaintiff’s horse also to gallop. Unable to control her galloping horse, plaintiff fell from the saddle and was dragged across the ground, sustaining injuries. (Id. at p. 1480.) The court concluded that the plaintiff had raised a triable issue of fact as to whether the conduct of her trail guide was “‘so reckless as to be totally outside the range of the ordinary activity involved in the sport’ in which [plaintiff] was engaged.” (Id. at p. 1494.) It explained: “[Defendant’s] own testimony strongly suggests that the applicable standard of care requires him to seek and obtain the consent of riders and give notice before increasing the gait of walking horses. He recollected that prior to the incident in which appellant was injured he requested such consent and obtained it before moving his lead horse into a canter. As noted, that testimony was directly contradicted by both [plaintiff and her companion], who also testified that [the trail guide] moved his horse into a gallop, not a canter, without any warning whatsoever, and that at the time he began galloping his horse the only rider in the group even within his field of vision was [plaintiff’s companion]. This conflict in the evidence, which presents a triable issue of material fact, precludes a pretrial legal determination whether [the trail guide] did or did not act ‘recklessly’ within the meaning of Knight.” (Id. at pp. 1494-1495.)
Applying the principles outlined in Kahn and Cohen to the present case, we conclude that plaintiff did not raise a triable issue of material fact as to defendants’ alleged breach of the duty to provide appropriate instruction to her. In opposition to defendants’ motion for summary judgment, plaintiff submitted the declaration of equestrian expert Rod Bergen. Bergen described several ways in which he believed TES failed to engage in safe hiring practices: He stated that no one associated with TES was accredited or certified by any of the three national riding instructor organizations (American Riding Instructors Association, Certified Horsemanship Association, and American Association for Horsemanship Safety); that TES did not properly screen its instructors before it hired them; and that TES did not require its new instructors to demonstrate an ability “to deal with the potential dangers that might confront totally inexperienced riders while taking their first riding lesson[].” While these statements raise factual disputes regarding the propriety of TES’s hiring practices, those factual disputes are not material to the issues at hand. That is, to establish that there are disputed facts that are material to her negligence claim, plaintiff had to introduce evidence that her instructor was reckless in his interactions with her. That Cody may not have been properly accredited or trained is not evidence that he therefore acted recklessly during plaintiff’s riding lessons or that his alleged reckless conduct contributed to plaintiff’s injuries.
Bergen also identified in his declaration several ways in which he believed Cody failed to properly instruct plaintiff on critical horse handling skills. According to Bergen, Cody “failed to properly qualify Ms. Deutsch as to her horse riding and handling skills prior to her accident,” failed to “teach her any of the basics that she would need to know in order to safely ride and control the horse Utah,” “failed to properly instruct Ms. Deutsch as to how to stop her horse if a problem were to occur,” and “showed himself to be unqualified to teach horseback riding based upon some of the misinformation (or the lack of sound riding advice) that he gave to Ms. Deutsch.” None of these statements suggests that defendants’ conduct was “‘totally outside the range of the ordinary activity’ . . . involved in teaching or coaching the sport” (Kahn, supra, 31 Cal.4th at p. 1011), because none describes what “range of the ordinary activity” was. In other words, unlike in Kahn, where plaintiff introduced documentary and expert evidence “that a settled progression of instruction in the dive is considered essential to a student’s safety” (id. at p. 1012), Bergen’s declaration says nothing about how beginning horseback riding students should be taught. Therefore, because it does not identify the range of ordinary activity, Bergen’s declaration is not evidence that Cody’s conduct fell outside that range.
Finally, Bergen states in his declaration that Cody contributed to plaintiff’s accident by “possibly tightening Utah’s cinch excessively” and “jumping in front of the horse and waving his arms in the air.” As to the first statement, that Utah’s cinch was “possibly” tightened excessively, the court sustained defendants’ objection on the ground that it was the product of speculation. Plaintiff does not challenge that ruling. The second is not supported by the record. Plaintiff’s testimony was that Utah either “started just running like crazy right at Cody or Cody jumped in front of her” and that Cody attempted to stop Utah by lifting his hands up in “this stop motion, two palms facing out way high up in the air.” In other words, plaintiff testified that she was not certain whether Utah ran towards Cody or Cody jumped in front of Utah; Bergen’s suggestion that Cody “jump[ed] in front of the horse” therefore is without evidentiary support. There also is no evidence that Cody “wav[ed] his arms in the air”; rather, plaintiff testified that Cody lifted his hands up in “this stop motion, two palms facing out way high up in the air.” Bergen’s testimony, therefore, does not raise a triable issue of fact.
In her appellant’s opening brief, plaintiff contends that there were triable issues of fact precluding summary judgment because Bergen and defendants’ expert disagreed about whether “an instructor needs to be trained,” “Cody was qualified to teach,” and “whether his actions and inactions substantially increased the risk to the student in question, Lisa Deutsch.” Even if in dispute, however, these opinions do not preclude summary judgment because they are not material—i.e., they do not bear on the relevant issues whether Cody acted intentionally or recklessly.
For all of these reasons, the trial court properly granted summary judgment for defendants.
Given our ruling, we need not address the trial court’s independent ground for granting the motion in Kinnaman’s favor or whether the release barred plaintiff’s suit.
DISPOSITION
The judgment for defendants is affirmed. Defendants are awarded their costs on appeal.
We concur: EPSTEIN, P. J., MANELLA, J.