Levinson v. Owens

Full title: ELLYN LEVINSON et al., Plaintiffs and Appellants, v. BERT OWENS et al.…

Court: California Court of Appeals, Third District, Tehama

Date published: Sep 25, 2009

No. C057565 (Cal. Ct. App. Sep. 25, 2009)

Opinion

Page 911c

177 Cal.App.4th 911c __ Cal.Rptr.3d__ ELLYN LEVINSON et al., Plaintiffs and Appellants, v. BERT OWENS et al., Defendants and Respondents. C057565 California Court of Appeal, Third District, Tehama September 25, 2009

Super. Ct. No. CI56965

THE COURT.

It is ordered that the opinion filed in this case on August 26, 2009, (176 Cal.App.4th 1534; Cal.Rptr.3d ), be modified as follows:

On page 27, line 17, after the sentence in the paragraph under subheading “F,” [176 Cal.App.4th 1552, advance report, 5th par., line 3] add the following:

Contrary to plaintiffs’ claim, we are not required to credit the opinion of their expert as creating a triable issue of material fact as to whether defendants recklessly increased the risk of harm inherent in horseback riding. In plaintiffs’ words, their expert “opined that when [defendants] put an inexperienced rider... on Pistol they recklessly increased riding’s inherent risks.” However, their expert’s opinion is based on the false premise that defendants had a duty to inquire about Levinson’s horseback riding experience and to warn and instruct her accordingly. As we have explained, defendants had no such duty. That plaintiffs’ expert feels otherwise does not create a triable issue of material fact. (See Knight, supra, 3 Cal.4th at p. 313 [“the question of the existence and scope of a defendant’s duty of care is a legal question... and is an issue to be decided by the court, rather than the jury”]; Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 884 [254 Cal.Rptr. 336, 765 P.2d 498] [“‘experts may not give opinions on matters which are essentially within the province of the court to decide’”].)

This modification does not change the judgment.

The petition for rehearing is denied.