In Swigart v. Bruno, 2017 No. D071072, the California Court of Appeal, Fourth District, relied on the primary assumption of risk doctrine in affirming summary judgment against a plaintiff injured by a horse during an endurance riding event.
Plaintiff and defendant participated in an endurance horseback riding event in Perris, California with approximately 47 other riders. The event provided premarked, premeasured trails, with designated checkpoints for the participants to collect playing cards as proof of their progress and to have their horses examined. Both plaintiff and defendant had extensive experience in endurance riding. Plaintiff was a professional horse trainer, and defendant had participated in numerous endurance riding events. During the event, seven horseback riders, including plaintiff and defendant, stopped together at a checkpoint, single-file, on the trail. Plaintiff was in the lead. After dismounting her horse, defendant’s horse struck plaintiff, causing plaintiff to sustain injuries.
Plaintiff sued defendant for negligence, reckless or intentional misconduct, and strict liability for an animal with a dangerous propensity. The court granted summary judgment for defendant. The trial court held that primary assumption of risk barred plaintiff’s negligence claim, and that plaintiff failed to meet her burden of establishing a triable issue of material fact as to defendant’s alleged recklessness, or his horse’s alleged propensity for danger. Both parties appealed – defendant’s appeal pertained to the amount of costs awarded to him following judgment in his favor, and plaintiff appealed on the merits. The Court of Appeal affirmed the decision. The discussion here concerns only plaintiff’s appeal.
The Swigart court relied on the primary assumption of risk doctrine. Primary assumption of risk is a complete defense that precludes any liability to the plaintiff when the plaintiff is injured due to a risk inherent in an activity in which the plaintiff chose to participate. Because duty is a question of law, cases involving primary assumption of risk are ripe for resolution by summary judgment. Primary assumption of risk depends not on the plaintiff’s subjective appreciation of risk, but rather, the objective consideration of the risks inherent in the activity. In sports or recreational activities, a participant generally bears no liability for carelessly or negligently injuring another participant. This is because accidental behavior is expected to occur “in the heat of an active sporting event” and is thus part and parcel of the sport or activity. A duty of care arises only where a participant intentionally injures another player or engages in reckless conduct that increases the risk of harm above those inherent in the activity.
In contrast, secondary assumption of risk arises when the defendant owes a duty of care to the plaintiff, but the plaintiff knowingly encounters a risk of injury caused by the defendant’s breach of that duty. Contrary to primary assumption of risk, secondary assumption of risk is merged into a comparative fault analysis.
Here, the Swigart court considered whether the risk of being struck by a coparticipant’s horse that closely follows other horses is “inherent” in the activity of endurance riding. To circumvent primary assumption of risk, plaintiff argued that endurance riding is an “event,” and not a “competition” or sport to trigger application of the primary assumption of risk doctrine. The court found no distinction in this regard. The court acknowledged that horses are unpredictable and difficult to control, and there is “always a risk” that participating in an event with horses will cause injury. Thus, the court concluded that primary assumption of risk barred plaintiff’s negligence claim.
As to the claim for recklessness, plaintiff argued that defendant repeatedly rear-ended other horses despite being warned to stop. The court considered whether this alleged conduct increased the risk of harm associated with endurance riding. The court found that “tailgating” among horses was inherent in the activity of endurance riding, and did not increase the ordinary risk of harm inherent in that activity.
Finally, plaintiff argued that her strict liability claim for dangerous propensity of defendant’s horse could overcome summary judgment, as plaintiff was “unaware” of the risk that she assumed. The court did not waiver on this point, concluding that tailgating and rear-ending by defendant’s horse were not outside the range of ordinary activity in endurance racing. Defendant’s horse did not have dangerous propensities to support a claim for strict liability and summary judgment was proper.
Swigart provides yet another common sense application of the primary assumption of risk doctrine, this time in the endurance horse riding context, to provide a complete defense to a negligence claim for injuries resulting from risks inherent in the given activity.
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