Opinion
B316888
01-17-2023
PRISCILIANO M. ORTIZ, Plaintiff and Appellant, v. TIM YAKTEEN et al., Defendants and Respondents.
Evan D. Marshall; Law Offices of George A. Almodovar and George A. Almodovar; Law Offices of Wayne McClean and Wayne McClean for Plaintiff and Appellant. Selman Breitman, Elaine K. Fresch and Melanie M. Smith for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. 19STCV33004, Audra Mori, Judge. Affirmed.
Evan D. Marshall; Law Offices of George A. Almodovar and George A. Almodovar; Law Offices of Wayne McClean and Wayne McClean for Plaintiff and Appellant.
Selman Breitman, Elaine K. Fresch and Melanie M. Smith for Defendants and Respondents.
KIM, J.
I. INTRODUCTION
Plaintiff Prisciliano Ortiz suffered injuries when a horse, ridden by defendant Jesus Rodriguez and trained by defendant Tim Yakteen, collided with the horse plaintiff was exercising. The trial court sustained defendants' demurrer. We affirm.
II. BACKGROUND
"In this appeal following the sustaining of a demurrer, we assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken." (Fierro v. Landry's Restaurant, Inc. (2019) 32 Cal.App.5th 276, 281.)
On September 22, 2017, plaintiff was engaged in his usual and customary employment of exercising a racehorse at Santa Anita Racetrack. During the exercise period, horses could be galloped at speeds of up to 40 miles per hour and more than 100 horses and riders could be on the track at a time. Defendant Rodriguez was employed by defendant Yakteen to exercise Dual Role, a horse that both defendants knew was a "'crazy mare' with an exceptionally dangerous propensity to veer, run, misbehave or otherwise resist the control of the rider unless properly guided and restrained."
Knowing that Dual Role was liable to bolt or run out of control, Rodriguez asked Yakteen for a guide horse to control the horse during the exercise period. Use of a guide horse is customary during the exercise of racehorses. A guide horse is usually tied by a lariat (also known as a lasso) to the saddle of a racehorse known to have dangerous propensities, restricting the racehorse from making sudden or unexpected movements. Yakteen refused Rodriguez's request for a guide horse.
Shortly after Rodriguez rode Dual Role, without a guide horse, onto the track, Dual Role bolted and ran across the track at a full gallop. Dual Role collided with the horse that plaintiff was exercising, throwing both plaintiff and Rodriguez from their respective mounts. Plaintiff hit the inner railing of the track and suffered injuries.
B. Procedural History
On September 16, 2019, plaintiff sued defendants, alleging causes of action for negligence and willful and wanton misconduct. Plaintiff' alleged that defendants were reckless in refusing to provide a guide horse when they knew of Dual Role's dangerous propensities. After two rounds of demurrers and amendments to the complaint, plaintiff filed the second amended complaint on June 14, 2021.
The elements of a negligence cause of action are "a legal duty of care, breach of that duty, and proximate cause resulting in injury." (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) Plaintiff's second cause of action for willful and wanton misconduct is not "a separate tort from negligence, but rather '"'"an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care" [citations].'"' [Citation.] In order to establish willful misconduct, a plaintiff must prove not only the elements of a negligence cause of action, that is, duty, breach of duty, causation, and damage, but also '"'(1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril. [Citations.]'" [Citation.]'" (Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1140.) The parties' dispute concerns the element of duty and we need not discuss the other elements of either cause of action.
On August 18, 2021, the trial court sustained defendants' demurrer to the second amended complaint without leave to amend. Relying on Shelly v. Stepp (1998) 62 Cal.App.4th 1288 (Shelly), the court found the primary assumption of risk doctrine applied to bar plaintiff's claims. Judgment was entered in defendants' favor and plaintiff appealed.
III. DISCUSSION
A. Standard of Review
"In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. 'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' (Serrano v. Priest (1971) 5 Cal.3d 584, 591 ....) Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Speegle v. Board of Fire Underwriters (1946) 29 Cal.2d 34, 42 ....) When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. (See Hill v. Miller (1966) 64 Cal.2d 757, 759 ....) And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. (Kilgore v. Younger (1982) 30 Cal.3d 770, 781 . . .; Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636 ....) The burden of proving such reasonable possibility is squarely on the plaintiff. (Cooper v. Leslie Salt Co., supra, [70 Cal.2d] at p. 636.)" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
Plaintiff does not assert he can amend the second complaint to cure any deficiencies in the pleadings.
B. The Primary Assumption of Risk Doctrine
"'Although persons generally owe a duty of due care not to cause an unreasonable risk of harm to others (Civ. Code, § 1714, subd. (a)), some activities . . . are inherently dangerous. Imposing a duty to mitigate those 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 ....) The primary assumption of risk doctrine, a rule of limited duty, developed to avoid such a chilling effect. (Ibid.; Knight v. Jewett[ (1992)] 3 Cal.4th [296,] 308 [(Knight)].)" (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154 (Nalwa).)
"Primary assumption of the risk arises when, as a matter of law and policy, a defendant owes no duty to protect a plaintiff from particular harms. [(Knight, supra, 3 Cal.4th at pp. 308309.)] Applied in the sporting context, it precludes liability for injuries arising from those risks deemed inherent in a sport; as a matter of law, others have no legal duty to eliminate those risks or otherwise protect a sports participant from them. (Id. at pp. 315-316.)" (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161, fn. omitted (Avila).) Because the issue of duty is a question of law, whether the primary assumption of risk doctrine applies may be resolved by demurrer or summary judgment. (See Nalwa, supra, 55 Cal.4th at p. 1158; Avila, supra, 38 Cal.4th at p. 161.) "For participation to fall within the primary assumption of risk category, the sporting activity in question need not be part of a competitive matchup. It may involve practice for the sport." (Shelly, supra, 62 Cal.App.4th at p. 1294.)
C. Analysis
Plaintiff contends Shelly is inconsistent with California Supreme Court cases addressing negligence and the primary assumption of risk doctrine. We disagree and find the court in Shelly properly applied the rule articulated in Knight, supra, 3 Cal.4th 296 to conclude that the primary assumption of risk doctrine applies to exercising racehorses. Contrary to plaintiff's contention, the Shelly court "evaluate[d] the fundamental nature of the sport and the defendant's role in or relationship to that sport" (Avila, supra, 38 Cal.4th at p. 161) when it found that even if a defendant rider was negligent by not using a guide horse to control an unruly horse, such conduct did not increase the inherent risk of horse racing. (See Shelly, supra, 62 Cal.App.4th at pp. 1294-1295.) This analysis is in line with Knight and its progeny.
Plaintiff next contends that the trial court erred by sustaining the demurrer on primary assumption of risk grounds because he sufficiently alleged that defendants engaged in reckless conduct totally outside the range of activity for which plaintiff assumed the risk. (Shelly, supra, 62 Cal.App.4th at p. 1293; see Shin v. Ahn (2007) 42 Cal.4th 482, 497; Knight, supra, 3 Cal.4th at pp. 320-321.) According to plaintiff, the failure to use a guide horse when exercising a horse with known control problems like Dual Role "unnecessarily creates a high risk of death or injury to other riders . . . over and above the inherent risks associated with simply exercising horses."
The facts alleged in plaintiff's complaint are nearly identical to the ones at issue in Shelly, supra, 62 Cal.App.4th 1288, where the court explained: "Appellant contends that [the defendant rider] was negligent in failing to utilize a second horse and rider to control a particularly unruly or untrained racehorse. Even if such allegations were true, the conduct did not increase the risks inherent in the sport of horseracing. Racehorses are by their nature difficult to control. It is not unusual for a horse to come to a sudden stop, rear up, or sidestep and thereby cause a collision with another horse and rider following close behind. The fact that in this particular instance negligence may have contributed to the collision does not alter the conclusion that appellant assumed the risk of being injured in this manner when he agreed to engage in an activity which required him to maneuver a spirited racehorse around a track at near top speed in close proximity to others engaged in the same dangerous activity." (Shelly, supra, 62 Cal.App.4th at pp. 1294-1295, fn. omitted; see also Nalwa, supra, 55 Cal.4th at p. 1158 ["Judges deciding inherent risk questions . . . may consider not only their own or common experience with the recreational activity involved but may also consult case law"].) We find the analysis in Shelly on-point and persuasive, and we follow that precedent in resolving this appeal. The failure to use a guide horse did not increase the inherent risk of exercising racehorses, nor was such conduct so outside the range of ordinary activity involved in exercising horses that it would be considered reckless.
IV. DISPOSITION
The judgment of dismissal is affirmed. Defendants are entitled to recover costs on appeal.
I concur: BAKER, J.
RUBIN, P.J. - Dissenting: I agree with the majority that those involved in a sporting activity do not have a duty to reduce the risk of harm that is inherent in the sport itself. "They do, however, have a duty not to increase that inherent risk." (Shin v. Ahn (2007) 42 Cal.4th 482, 486 (Shin).) Ortiz's allegations, which we are required to accept as true, do not allow us to decide on demurrer that defendants' conduct did not recklessly increase the risks inherent in the activity as a matter of law.
Ortiz alleged in the operative second amended complaint, "Immediately after the accident, Rodriguez stated that he had been aware that morning that Dual Role needed a guide horse for the subject exercise session and had told Yakteen of the need for a guide horse, but that Yakteen had refused to use a guide horse." Ortiz further elaborated that the use of guide horses was a usual and customary practice and the failure to use one when exercising a horse known to present control problems could increase the inherent risks associated with exercising racehorses. Ortiz alleged throughout the complaint that defendants' conduct was not just negligent but was reckless-for example, "Defendants' reckless misconduct in not providing a guide horse and rider was totally outside of the range of the ordinary activities of racehorse exercising." These allegations went beyond a claim that defendants made only an ordinary error of judgment by negligently deciding not to use a guide horse that day.
These allegations doctrinally distinguish our case from Shelly v. Stepp (1998) 62 Cal.App.4th 1288, 1293. The Shelly plaintiff alleged a negligence cause of action, and conduct that was negligent, not reckless or intentional. The Court of Appeal stated so in the introduction to its opinion, "Appellant Eric Shelly was injured when a racehorse he was exercising at Los Angeles County Fairplex Park collided with another being ridden by Reggie Burleson. Appellant brought a complaint for negligence against the Los Angeles County Fair Association [and others]." (Id. at p. 1290, italics added.) Later in its opinion the court discussed primary assumption of risk: "In each of these [primary assumption of risk] cases, no duty of care was found because, although a coparticipant in the sport had engaged in arguably negligent behavior, such behavior had not been intentional or reckless and did not increase the risks to the injured participant over and above those inherent in the sport. The same is true here. Appellant contends that [defendant rider] was negligent in failing to utilize a second horse and rider to control a particularly unruly or untrained racehorse. Even if such allegations were true, the conduct did not increase the risks inherent in the sport of horseracing.... The fact that in this particular instance negligence may have contributed to the collision does not alter the conclusion that appellant assumed the risk of being injured in this manner when he agreed to engage in an activity which required him to maneuver a spirited racehorse around a track at near top speed in close proximity to others engaged in the same dangerous activity. (Italics added)." (Id. at pp. 1294-1295.)
The Shelly court's negligence analysis comports with California Supreme Court and other appellate authority that has considered primary assumption of risk at the summary judgment (not demurrer) stage. But Shelly did not address reckless conduct that increases the inherent risk of the activity. It had no need to do so.
Nearly 10 years after Shelly, the Supreme Court in Shin announced the "next generation" of primary assumption of risk jurisprudence originally established in Knight v. Jewett (1992) 3 Cal.4th 296, 309. (Shin, supra, 42 Cal.4th at p. 486.) There, the plaintiff sued as a result of injuries he had sustained when the defendant's tee shot hit him in the head during a round of golf. The Supreme Court concluded summary judgment was properly denied because, although the doctrine of primary assumption of risk applied to golf and being struck by a carelessly hit ball was an inherent risk of the sport, there existed a dispute of material fact about whether the defendant's conduct was "so reckless as to be totally outside the range of the ordinary activity involved in golf." (Shin, at p. 486.)
The plaintiff in Shin had brought suit on a negligence theory. The Supreme Court affirmed the denial of summary judgment against the defendant because a trier of fact could determine on the evidence before the court that the defendant had acted not just negligently but recklessly. The opinion does not state whether plaintiff had alleged in the complaint that the conduct was reckless.
The court explained, "In determining whether defendant acted recklessly, the trier of fact will have to consider both the nature of the game and the totality of circumstances surrounding the shot. In making a golf shot the player focuses on the ball, unlike other sports in which a player's focus is divided between the ball and other players. That is not to say that a golfer may ignore other players before making a shot. Ordinarily, a golfer should not make a shot without checking to see whether others are reasonably likely to be struck. Once having addressed the ball, a golfer is not required to break his or her concentration by checking the field again. Nor must a golfer conduct a head count of the other players in the group before making a shot. [¶] Many factors will bear on whether a golfer's conduct was reasonable, negligent, or reckless. Relevant circumstances may include the golfer's skill level; whether topographical undulations, trees, or other impediments obscure his view; what steps he took to determine whether anyone was within range; and the distance and angle between a plaintiff and defendant." (Shin, supra, 42 Cal.4th at pp. 499-500.)
The parties in Shin presented evidence that the plaintiff had made eye contact with the defendant as he walked ahead of the defendant (placing the plaintiff in the zone of danger) while the defendant testified that he looked directly ahead to make sure the way was clear before he hit the ball. The court determined the record was "simply too sparse to support a finding, as a matter of law, that defendant did, or did not, act recklessly." (Shin, supra, 42 Cal.4th at p. 500; see also Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1494-1495 [a dispute of material fact existed regarding whether the trail guide acted recklessly by suddenly causing his horse to gallop without warning the other riders, knowing the horses behind him would follow]; Campbell v. Derylo (1999) 75 Cal.App.4th 823, 828-829 [grant of summary judgment reversed where a triable issue of fact existed as to whether the defendant's failure to use a safety retention strap while snowboarding amounted to conduct outside the inherent nature of the sport; the defendant may have unnecessarily increased the danger that his snowboard would escape his control and injure other participants]; Szarowicz v. Birenbaum (2020) 58 Cal.App.5th 146 [there existed a dispute of material fact whether an opponent in a no-check hockey match intended to cause injury or acted recklessly when he checked the plaintiff even though intentional checking was an inherent risk of the game]; Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1012-1013 [where plaintiff was seriously injured when she hit the bottom of a swimming pool, disputed issues of fact existed regarding whether high school swim team coach had provided any instruction on shallow-water diving; that and other conduct by the coach would support a finding that the defendants' actions were reckless and outside the range of the ordinary activity of coaching competitive swimming].)
I would find the complaint survives a demurrer founded on primary assumption of risk because the complaint is based not on negligent behavior but on conduct that unreasonably and recklessly increased the risk of injury inherent in exercising a racehorse. Perhaps summary judgment or trial will flesh out the facts that show whether respondent did or did not act recklessly. For now, as we are considering the claims on demurrer, I would reverse the judgment.