Opinion
H035860
09-26-2011
OTILIA IOAN, Plaintiff and Appellant, v. ELIZABETH KOENIG et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CV132540)
Appellant Otilia Ioan was severely injured when she fell from a horse owned by respondents Daren Ray Young and Sandra Denise Young (the Youngs). She sued the Youngs for negligence and strict liability. The trial court granted the Youngs' summary judgment motion and dismissed the action. Ioan appeals and contends that there were triable issues of fact precluding summary judgment. We reject her contentions and affirm the judgment.
I. Undisputed Facts
We include here only those facts that Ioan did not assert were disputed.
The Youngs owned several horses including a horse named Midnight. They, their children, and their friends rode these horses. Elizabeth Koenig was a friend of the Youngs. Koenig was an experienced horse rider. She frequently went riding with the Youngs and with their son. The Youngs also permitted Koenig to ride their horses without them. They were happy to have Koenig ride their horses because the horses needed the exercise and Koenig was good with the horses. The Youngs also permitted Koenig to take others along with her on trail rides on the Youngs' horses. Koenig would call before she came and rode the Youngs' horses. The Youngs always said yes when Koenig asked if she could bring a friend along on a ride. Daren Young asked Koenig to verify the horsemanship ability of any friends she took riding by putting the friend on the horse in the arena and ensuring that the friend was able to control the horse before going out riding. He told Koenig to always start a beginning rider on their horse named Baby to make sure the person could ride.
The Youngs had never met Ioan. When Koenig called in August 2008 and asked if she could take Ioan on a ride, Daren Young reiterated his instruction that she verify that Ioan could control the horse by putting her in the arena before going out riding. Ioan had only ridden a horse once before, but she knew that horses could behave unpredictably and do things that the rider did not anticipate. On her first trail ride with Koenig in August 2008, Ioan rode Baby, and Koenig rode Midnight. For a small portion of that ride, they switched horses. There were no mishaps.
Ioan and Koenig took a second trail ride the following week. Ioan asked to ride Midnight on the second trail ride because Midnight was a "smoother" horse than Baby. Because Midnight had not been ridden in a week, Koenig rode Midnight at first to make sure "he wasn't too active." Midnight "was just fine," so they switched horses and loan rode Midnight. During this ride, Midnight started going faster on an uphill trail. Ioan became scared, and she pulled back on the reins and tried to get Midnight to slow down. Midnight did not stop. Midnight suddenly made a 90-degree left turn and started going downhill. At that point, Ioan lost her balance and fell off of the horse. Ioan broke her neck and suffered permanent quadriplegia.
II. Procedural Background
Ioan filed an action against Koenig and the Youngs for negligence and strict liability. Ioan alleged that Koenig was the Youngs' agent or employee, that Koenig and the Youngs "were aware that Midnight had dangerous propensities that made the horse unsuitable and unduly dangerous for an unskilled beginning horseback rider," and that these "dangerous propensities were likely to cause injury" under the circumstances.
The Youngs moved for summary judgment. They asserted that loan's negligence claim was barred by the doctrine of primary assumption of the risk, that the Youngs were not vicariously liable for Koenig's conduct because Koenig was not their agent or employee, that there was no basis for strict liability, and that Ioan could not establish causation. The Youngs claimed that they had no knowledge that Midnight had any "dangerous propensity" or was known to start, stop, or turn abruptly. Neither of them was aware of anyone having previously fallen off of Midnight.
Ioan opposed the Youngs' motion. She claimed that the Youngs were aware that Midnight had dangerous propensities. Ioan asserted that Midnight had a tendency to be "barn sour" and "grab the bit." She claimed that a horse suffering from these "behavorial trait[s]" has a "dangerous propensity." Ioan maintained that Koenig was aware that Midnight suffered from these behavioral traits, but she told Ioan that Midnight was a gentle horse. Ioan claimed that the Youngs had "approved and ratified Koenig's conduct with regard to the subject incident."
The trial court granted the Youngs' motion. It found that loan's "direct negligence" claim could not succeed because "the Youngs satisfied their initial burden as moving parties of establishing that they did not increase the risk inherent in the activity of horseback riding [citation], and the plaintiff failed to raise any triable issue of material fact." Ioan's vicarious liability claim failed because "[t]he Youngs further established that their relationship with Koenig was not of the nature of an employment or agency relationship . . . ." As to the strict liability claim, the Youngs established "that they did not have knowledge of any abnormally dangerous propensity possessed by the horse in question [citation], and the plaintiff failed to raise a triable issue of material fact." The court thereafter entered judgment for the Youngs. Ioan timely filed a notice of appeal from the judgment.
The court acknowledged that the Youngs had objected to Ioan's evidence, but it did not rule on their objections because they had "failed to submit a proposed order in compliance with California Rules of Court, rule 3.1354(c)." The court denied Koenig's summary judgment motion.
III. Discussion
A. Standard of Review
"Appellate review of a ruling on a summary judgment or summary adjudication motion is de novo." (Brassinga v. City of Mountain View (1998) 66 Cal.App.4th 195, 210.) When the defendant moves for summary judgment, the defendant bears both the initial burden of production and the burden of persuasion. The "initial burden of production [requires the defendant] to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) "A prima facie showing is one that is sufficient to support the position of the party in question." (Aguilar, at p. 851.) The burden of persuasion requires the defendant to show that there are no triable issues of material fact and that the defendant is entitled to judgment as a matter of law. (Aguilar, at p. 850.)
B. Negligence Cause of Action
Ioan's negligence cause of action was based on two separate theories: vicarious liability and direct negligence. Her vicarious liability theory depended upon Ioan being able to prove that Koenig was the Youngs' agent or employee. Ioan's direct negligence theory required her to overcome the doctrine of primary assumption of the risk.
1. Vicarious Liability
Ioan contends that there was a triable issue of fact as to whether Koenig was the Youngs' agent. She asserts that the Youngs "arranged" to have "Koenig" and "her guests" perform the "function" of "exercis[ing]" their horses by riding them. Ioan claims that the Youngs "maintained control over Koenig" by "requiring her to" (1) "perform pre-ride care for the horses," (2) assess her guest's skills, (3) "control the trail ride tempo," and (4) "ensure all post-ride care for the horses."
"An agent is one who represents another, called the principal, in dealings with third persons. Such representation is called agency." (Civ. Code, § 2295.) "[I]t may not be held '. . . that one who performs a mere favor for another, without being subject to any legal duty of service and without assenting to any right of control, can be an agent. This is not the law. "Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act." (Rest., Agency, § 1) "The principal must in some manner indicate that the agent is to act for him, and the agent must act or agree to act on his behalf and subject to his control." (Id. comment on subsec. 1.)' [Citation.] However, it is true that: [¶] 'An agency relationship may be informally created. No particular words are necessary, nor need there be consideration. All that is required is conduct by each party manifesting acceptance of a relationship whereby one of them is to perform work for the other under the latter's direction. [Citation.]' " (Hanks v. Carter & Higgins, Inc. (1967) 250 Cal.App.2d 156, 161.) " 'Control may not be inferred merely from the fact that one person's act benefits another. [Citation.]' " (van't Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549, 572.)
The Youngs attacked Ioan's vicarious liability theory by presenting evidence that Koenig was merely their friend who they permitted to ride their horses and take her friends riding on their horses. She did not perform any services for the Youngs' horses outside of the incidental care associated with riding the horses. The Youngs employed a ranch hand who, along with Daren Young, took care of the Youngs' horses. The Youngs never "set limits" on who Koenig could take riding on their horses. All that the Youngs asked was that Koenig start any beginning rider on Baby and ensure that a rider was able to control the horse before going out riding. Ioan did not dispute this evidence.
Ioan cites St. Paul Ins. Co. v. Industrial Underwriters Ins. Co. (1989) 214 Cal.App.3d 117 (St. Paul) in support of her argument. In St. Paul, a prospective buyer of a car was test driving the car when the car was involved in an accident with another vehicle. The issue was whether the auto dealership was vicariously liable for the acts of the prospective buyer on the theory that the prospective buyer was the dealership's agent. (St. Paul, at pp. 118-120.) The Court of Appeal held that there was no agency as a matter of law. (St. Paul, at p. 121.) The court noted that "control is a decisive factor" in determining agency and pointed out that the dealership had not limited the time of the test drive, prescribed the route, or had anyone accompany the prospective buyer on the test drive. (St. Paul, at pp. 122-123.) The court rejected the argument that the dealership's prospective benefit from the test drive (that is, the test drive might result in the sale of the car) made the prospective buyer the dealership's agent. "Control may not be inferred merely from the fact that one person's act benefits another. [Citation.] One who performs a gratuitous favor confers a benefit upon the recipient, yet no agency results. The essential element of an agency relationship is the right of control, not the dispensing of weal." (St. Paul, at p. 123.)
St. Paul is not supportive of Ioan's argument. The undisputed evidence did not establish that Koenig had any legal duty of service to the Youngs or that she and the Youngs had agreed that they would control her activities with regard to the Youngs' horses. Instead, the undisputed evidence demonstrated that Koenig merely performed a beneficial, gratuitous favor for the Youngs by exercising their horses. The mere fact that the Youngs asked that Koenig make sure that any friends she took riding could control the horse before setting out on a ride and start any beginning riders on Baby was not an exercise of control over an agent but simply a request by the Youngs that Koenig treat their property with care.
Ioan's reliance on Van Den Eikhof v. Hocker (1978) 87 Cal.App.3d 900 (Van Den Eikhof is equally unavailing. In Van Den Eikhof, a father lent the car he used for business to his daughter so she could drive to the movies with a friend. On the way, there was an accident that injured a third party. The issue was whether the daughter was the father's agent for vicarious liability purposes. (Id. at pp. 903-905.) The Court of Appeal found no evidence to support a finding of agency. (Id. at pp. 905-906.) We can see nothing in Van Den Eikhof that could possibly lend support to Ioan's argument here. If anything, it lends support to the Youngs' contention that merely entrusting one's property to someone does not create an agency.
Since there were no factual disputes regarding the Youngs' relationship with Koenig, and the evidence was inadequate to support a finding that there was an agency relationship between the Youngs and Koenig, the trial court did not err in concluding that Ioan could not prevail on her vicarious liability theory.
2. Direct Negligence
Ioan alleged in her complaint that the Youngs were liable because they "supplied the horses," "were aware that Midnight had dangerous propensities" that "add to the ordinary risk of horse riding," and "failed to warn" of these propensities. The Youngs' motion asserted that they had no duty to Ioan due to the doctrine of primary assumption of the risk. Ioan responded that the Youngs had a duty notwithstanding primary assumption of the risk to avoid increasing the inherent risks of horse riding. Ioan maintains this position on appeal.
"When a sports participant is injured, the considerations of policy and duty necessarily become intertwined with the question of whether the injured person can be said to have assumed the risk." (Shin v. Ahn (2007) 42 Cal.4th 482, 489 (Shin).) "Under the primary assumption of risk doctrine, the defendant owes no duty to protect a plaintiff from particular harms arising from ordinary, or simple negligence. [Citation.] In a sports context, the doctrine bars liability because the plaintiff is said to have assumed the particular risks inherent in a sport by choosing to participate. [Citation.] Thus, 'a court need not ask what risks a particular plaintiff subjectively knew of and chose to encounter, but instead must evaluate the fundamental nature of the sport and the defendant's role in or relationship to that sport in order to determine whether the defendant owes a duty to protect a plaintiff from the particular risk of harm. [Citation.]' " (Shin, at p. 489.) Where the doctrine applies, the defendant has " 'a duty not to increase the risks inherent in the sport, not a duty to decrease the risks.' " (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 166.) "[T]he question of 'the existence and scope' of the defendant's duty is one of law to be decided by the court, not by a jury, and therefore it generally is 'amenable to resolution by summary judgment.' " (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1004.)
"Horseback riding is a dangerous sporting activity; 'being thrown off a horse [i]s an inherent risk of horseback riding, [indeed] . . . it is one of the most obvious risks of that activity, and readily apparent to anyone about to climb on a horse.' [Citation.] [¶] Applying the aforesaid principles of primary assumption of the risk to horseback riding leads to the following general conclusions: The rider generally assumes the risk of injury inherent in the sport. Another person does not owe a duty to protect the rider from injury by discouraging the rider's vigorous participation in the sport or by requiring that an integral part of horseback riding be abandoned. And the person has no duty to protect the rider from the careless conduct of others participating in the sport. The person owes the horseback rider only two duties: (1) to not 'intentionally' injure the rider; and (2) to not 'increase the risk of harm beyond what is inherent in [horseback riding]' [citation] by 'engag[ing] in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport [citation].' With respect to increasing the risk of harm, the duty 'may vary according to the role played by particular [persons] involved in the sport' [citation] and the nature of the particular riding activity at issue [citations]." (Levinson v. Owens (2009) 176 Cal.App.4th 1534, 1545-1546 (Levinson).)
The Youngs produced evidence that they had never met Ioan prior to the incident, and it was undisputed that they played no role in the riding incident other than allowing Koenig and her friends to use their horses. Hence, Ioan cannot contend that the Youngs " 'intentionally' injure[d]" her. (Levinson, supra, 176 Cal.App.4th at p. 1545.) Since falling off of a horse is an inherent risk of horseback riding, and Ioan does not contend otherwise, the only way that Ioan could prevail on her negligence cause of action against the Youngs was to show that the Youngs did something to increase the risk of harm beyond the inherent risks ordinarily involved in horseback riding. She claimed that they did so by supplying a horse for use by unskilled riders when they knew that horse had dangerous propensities.
The Youngs produced evidence that they had no knowledge that Midnight had any dangerous propensities. Daren Young testified at his deposition that he chose Midnight for his children to ride because Midnight was "a good horse, predictable and a good head and solid, controllable and all those things." He was not aware that Midnight had any "dangerous propensities" such as being "barn sour," "taking" or "grabbing" the bit, or being "hard in the mouth," and he thought Midnight was an appropriate horse for a novice rider. In his view, Midnight was a "gentle horse" with no undesirable "habits," that was "easy to control" and "[v]ery friendly." He had never known Midnight to "behave inappropriately" or run off to the barn, and had never heard of anyone falling off of Midnight.
This issue is distinct from the question of whether Koenig had knowledge of any dangerous propensities. Koenig did not obtain summary judgment. When Koenig was interviewed shortly after the incident, she said that Midnight "can be pretty hard in his mouth when he wants to be" and that Midnight "took the bit in, in his teeth" just before Ioan fell. "All the horse did was bolt home." When she was asked whether Midnight had done that previously, she said: "he goes fast going home, but he never runs off." At her deposition, Koenig testified that "at times" Midnight could be "hard in the mouth," and he would "grab the bit" on those occasions, but he did not do so on a regular basis. When Midnight grabbed the bit, Koenig was able to easily correct the problem by turning his head with the reins. Koenig had never known Midnight to try to turn and go back to the barn. She had simply observed that Midnight "walks a little bit faster going home." Koenig testified that Midnight "does tend to grab the bit."
For our purposes, the critical evidence was Koenig's undisputed denial that she and the Youngs had ever discussed Midnight's "habits," and Sandra Young's undisputed testimony that Koenig had never told her that Midnight "grabbed the bit."
Daren Young rarely rode Midnight because he had a horse of his own that he preferred. Midnight was usually ridden by the Youngs' children, who had learned to ride on Midnight when they were 10 and 11 years old.
Sandra Young testified at her deposition that Midnight was a "very sweet" and "gentle" horse and was an appropriate horse for a novice to ride. She had never known Midnight to "take off with somebody," to start, stop, or turn unexpectedly, or to attempt to run back to the barn. To her knowledge, Midnight had no dangerous propensities, did not suffer from "barn sour," did not grab the bit, and was not "hard in the mouth." Prior to the incident, no one had every fallen off of Midnight or been hurt by him. The only misbehavior that she had ever known Midnight to engage in was to "tuck his head and it's somewhat evading." This behavior was easily overcome by pulling up on the reins, which lifted the horse's head. Two friends of the Youngs who had ridden Midnight many times submitted declarations that Midnight was a gentle, well-trained horse who was "obedient to commands," "easy to ride" and had no dangerous propensities.
The Youngs' evidence was sufficient to establish that they were not aware that Midnight had any dangerous propensities. Thus, the burden shifted to loan to produce evidence showing that there was a material factual dispute. loan's evidence did not do so. Her evidence primarily addressed Koenig's knowledge of Midnight's habits. She also submitted the declaration of an expert horseman who stated that "[h]orses with hard mouths are more difficult to control and pose a problem for beginner riders . . . ." In his view, the fact that Midnight used "a strongly leveraged bit" suggested "that Midnight requires more leverage and force . . . to maintain control of the horse." He also opined that "[g]rabbing the bit is a behavioral condition of a horse" involving the horse "grab[bing] the bit," "tak[ing] the bit in its own control and leav[ing] the rider out of control of said horse." A beginner lacks the skill to control a horse that grabs the bit. He expressed the opinion that "[g]rabbing the bit is the most egregious expression of vices known as evading the bit." "A beginner rider does not posses[s] the skills necessary to overcome a horse and regain control of the horse that has successfully grabbed the bit."
Ioan testified at her deposition that Koenig had told her that Midnight was "sensitive around the ears." loan submitted a declaration in which she stated that Koenig had told her that Midnight "was a gentle horse, easily controllable, and suitable for me." Ioan also declared that, after Midnight began to go faster, Koenig told her to pull back on the reins. When loan did so, she felt no "give" in the reins, and it felt as if the bit "was being held in a vice [sic]." This evidence was apparently intended to show that Midnight had in fact grabbed the bit. Katya Andrist, loan's good friend, testified that Koenig had told her that Koenig had put Ioan "on an expert horse, and the expert horse decided it was going back to the barn and took off down the hill."
The Youngs did not dispute that Midnight's bit was a strong leveraged bit.
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The problem with Ioan's evidence is that she produced no evidence whatsoever that the Youngs were aware that Midnight had a "hard mouth," "grabbed the bit," or suffered from "barn sour." Both of the Youngs testified that, to their knowledge, Midnight did not have a hard mouth, did not grab the bit, and did not suffer from "barn sour." The sole evidence relied on by the expert was that Midnight used a strong leveraged bit, but there was no evidence that the Youngs were aware of the nature of Midnight's bit or of the significance that the expert attached to it. Ioan's negligence cause of action depended on proof that the Youngs knew of Midnight's alleged dangerous propensities. The Youngs produced evidence that they were unaware that Midnight had any dangerous propensities. Ioan's evidence did nothing to rebut that showing. Consequently, the trial court properly ruled that Ioan could not prevail on her negligence cause of action against the Youngs.
C. Strict Liability Cause of Action
Ioan's strict liability cause of action also depended on proof that the Youngs were aware of Midnight's alleged dangerous propensities. As we have discussed above, the Youngs produced evidence that they were not aware of any dangerous propensities, and Ioan failed to demonstrate that there were any triable issues of disputed fact regarding the Youngs' showing. It follows that the trial court properly ruled that Ioan could not prevail on her strict liability cause of action against the Youngs.
IV. Disposition
The judgment is affirmed.
Mihara, J. WE CONCUR: Elia, Acting P. J. Duffy, J.