Peck v. Verdi Trails West CA3

Filed 8/26/13 Peck v. Verdi Trails West CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sierra)

CORRINE PECK, C067935

Plaintiff and Appellant, (Super. Ct. No. 7044)

v.

VERDI TRAILS WEST, INC.,

Defendant and Respondent.

Plaintiff Corrine Peck appeals from the judgment entered after the trial court granted the summary judgment motion of defendant Verdi Trails West, Inc. (Verdi Trails). Peck fell off her horse during a trail ride after her foot came out of the stirrup and the saddle slipped to the side. Peck appeals the judgment as to her causes of action for gross negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress. She does not appeal her claim for ordinary negligence, which claim the trial court found she expressly waived when she signed a release and waiver of liability agreement. Peck claims the trial court erred in making the factual determination that the trail guide was not grossly negligent for talking on her cell phone during the guided ride and

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for failing to help Peck when she started to fall off the horse. Peck claims the trial court improperly considered the cell phone records for the phone the guide was using, because they were hearsay evidence. Peck also claims the trial court erred in granting summary judgment on her negligent and intentional infliction of emotional distress causes of action. We shall conclude that the undisputed facts were sufficient for the trial court to determine that any negligence on the part of defendant‟s employee did not amount to gross negligence, and that because Peck did not object to the admission of the phone records below, she may not challenge the trial court‟s ruling on that ground. We shall affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND On July 3, 2007, Peck fell off a horse while on a guided horseback trail ride operated by Verdi Trails. Peck was participating in the ride with her husband, daughter- in-law and two grandchildren. Prior to the trail ride, Peck signed a liability waiver and release agreement, as well as a statement refusing protective headgear. The trail guide for Peck and her party was Tamara Avera. Avera had been riding horses for approximately 40 years, and had been the ranch manager at Verdi Trails for approximately five years, during which time she had served as guide on 60 to 150 trail rides each month that rides were offered. Avera cinched the horses‟ saddles, including the saddle of Peck‟s horse, before the group left the corral. Avera also instructed the group on stopping and turning the horses before the ride started. While the group was still in the corral area, Avera noticed that Peck‟s body was tilted to the left, and instructed her how to correct her position. The trail was relatively flat, and the group proceeded in a single file with Avera at the front and Peck near the rear. Approximately 20 minutes into the ride, Peck‟s right foot fell out of the stirrup and she was unable to get it back in. When her foot fell out of the stirrup, Peck began waving to get Avera‟s attention. She waved with her left arm