Opinion
WOODS (Fred), J. This appeal is one of several implied assumption of the risk cases which the Supreme Court remanded for reconsideration in the light of Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal.Rptr.2d 2, 834 P.2d 696]. When first decided by this court in 1990, we reversed a summary judgment in favor of defendant. In that opinion we first discussed the unsettled state of the law in the area of implied assumption of the risk and whether it was subsumed under comparative negligence, urging the Supreme Court to take and decide the issue. We then addressed the case before us, [581]assuming for that purpose the implied assumption of the risk defense indeed survived the advent of comparative negligence. We applied the then prevailing test which focused on the plaintiff’s subjective appreciation and voluntary acceptance of a specific risk. We found there was a triable issue whether the plaintiff was aware of the specific i it,k—the dangerous propensity of the horse defendant assigned her to ride—and thus whether she could be deemed to have voluntarily undertaken that risk.
The Supreme Court granted review and held this case along with more than a dozen other implied assumption of the risk cases while it decided Knight v. Jewett, supra, and Ford v. Gouin (1992) 3 Cal.4th 339 [11 Cal.Rptr.2d 30, 834 P.2d 724]. In those opinions the high court determined implied assumption of the risk had survived comparative negligence. However, a “plurality” of the court rejected the definition of implied assumption of the risk we had used in deciding the instant case in 1989. Instead of the plaintiff’s subjective state of mind the plurality ruled the inquiry should shift to the defendant’s duty to the plaintiff in the context of the activity in which plaintiff was engaged. Only if we conclude defendant owed no duty to plaintiff does the implied assumption of the risk defense operate as a complete bar to plaintiff’s cause of action. If a duty was owed, then plaintiff’s reasonable or unreasonable assumption of the risk which defendant had created is merely one of the factors in the comparative negligence equation.
Applying the Jewett plurality’s test to the facts of the instant case, we conclude a riding stable offering short term trail rides to casual riders owes a duty to those to whom it rents horses to minimize the risk of harm—or at least not to aggravate that risk—by supplying reasonably safe horses or warning riders of the propensities of those which pose a danger. But under the peculiar facts of this very close case that duty did not materialize. We further conclude under Jewett that primary assumption of the risk bars plaintiff’s recovery as a matter of law.
Statement of Facts and Proceedings Below
The following summary of the facts is based on allegations in plaintiff’s complaint which were not controverted by defendant’s evidence at the summary judgment proceeding as well as evidence adduced in connection with the summary judgment motion.
In September 1983, plaintiffs Charlene and John Harrold (collectively referred to as the Harrolds) became members of a resort owned by defendant Great Outdoor American Adventures, Inc. (GOAA). In November 1983, the Harrolds took a weekend vacation at GOAA’s resort.
[582]There, the Harrolds learned GOAA offered horseback riding to its members at nearby stables. The stables were operated by defendant Rolling J Ranch.
Charlene Harrold, two of her friends, and two young girls chose to go horseback riding. GOAA transported the group to the Rolling J stables. There, the group members were given their choice of horses. Ms. Harrold initially chose one horse but, after some misgivings, selected another horse to ride for the day. After the riders selected their horses, Rolling J employees saddled the horses.
The five riders were escorted by two wranglers. One wrangler rode at the head of the group and the other at the end. The wranglers were employed by Rolling J. Before starting the ride, the riders were instructed on certain basics of horseback riding, such as how to signal and command the horse. The riders were also warned not to run the horses.
About 20 to 30 minutes into the ride, one of the young girls complained she was cold. Ms. Harrold decided to give the jacket she was wearing to the young girl. Having experienced no problems with the horse during the ride, Ms. Harrold wrapped the reins around the saddle horn. She then started to remove her jacket from her shoulders.
While both of her arms were still in the sleeves and caught behind her, the horse suddenly spooked. Ms. Harrold tried, but was unable, to remain on the panicked horse. When the horse bucked for the second time, Ms. Harrold was thrown to the ground landing on her tailbone.
Unbeknown to Ms. Harrold, on a previous ride, this same horse had spooked and thrown a rider when that rider took off and waved a hat. Defendants neither warned Ms. Harrold of this prior incident nor did they retrain the horse to avoid the recurrence of a similar incident.
The Harrolds commenced an action against defendants GOAA, Rolling J, and Jack Suderman alleging defendants negligently failed to warn Ms. Harrold of her horse’s unstable temperament and tendency to throw riders and failed to provide her with a safe horse to ride.1 The Harrolds also alleged defendants negligently maintained their premises and willfully failed to warn of the property’s dangerous condition.
[583]Defendants answered by filing a general denial and, inter alia, raised the affirmative defense of assumption of risk. Defendants subsequently moved for summary judgment solely on this affirmative defense. Defendants argued Ms. Harrold, by virtue of her experience as a rider, knew of the risks involved in horseback riding and voluntarily assumed such risks when she commenced the ride.
The evidence before the trial court concerning the summary judgment motion showed Ms. Harrold had prior experience with horses. However, the evidence was in conflict as to the degree of her expertise.
Ms. Harrold knew how to guide a horse to the left and right, make it stop, trot, and gallop, and how to bridle and saddle a horse. In a note prepared for the stables explaining how the accident occurred, Ms. Harrold wrote: “I am an experienced rider and I understand that I was the second person thrown by the same horse. I guess even the best are thrown. . . . Accidents happen.” In her deposition, Ms. Harrold explained her reference to “the best being thrown” was not intended to refer to herself. Rather, it was a general comment referring to “any good rider.” Further, she considered a person to be an experienced rider if she could saddle and ride a horse.
The evidence also showed Ms. Harrold never rode a horse more often than once a month, she had never been a member of a riding club or academy, and she had never taken care of horses or fallen off of one. Further, she always rode with one of her adult sons. Additionally, she had only ridden a horse once in the five years preceding the accident.
The trial court granted the summary judgment motion, stating: “Maybe it’s because of the disadvantage. I have a little too much knowledge of . . . horses, and that’s why I think when you get on a horse and you are going to ride on [szc] the outdoors, whether there are wranglers all over, you are assuming a risk that you can fall off the horse.” The Harrolds timely appealed.
Discussion
I. Standard of Review.
The standard of review for summary judgments is well settled. Where defendants move for summary judgment, their declarations and admissible evidence must either establish a complete defense to the plaintiff’s action or conclusively negate a necessary element of the plaintiff’s case and demonstrate, under any cause of action, no material factual issue requires resolution [584]by trial. (DeRosa v. Transamerica Title Ins. Co. (1989) 213 Cal.App.3d 1390, 1395 [262 Cal.Rptr. 370].) Thus, summary judgment is proper here only if the defendants are legally entitled to raise the assumption of the risk defense and have conclusively established all of the necessary elements of that defense.
II. The Implied Assumption of the Risk Defense After Jewett.
While recognizing there is a profound analytical schism on our high court as to assumption of the risk doctrine, we reexamine and decide this case under the plurality view which holds the critical inquiry is whether the riding stable owes a duty of care to riders who rent horses for trail rides. Having been well focused by the high court on the element of duty in Jewett, unlike our previous holding, we now conclude there are no triable issues as to whether the assumption of the risk defense constitutes an absolute bar to appellants’ action. Accordingly, summary judgment was proper and we affirm the judgment.
Under the analysis adopted in the “plurality” decision in Jewett, assumption of the risk is an absolute defense only when public policy dictates the class of which a defendant is a member should owe no duty of care to the class of which a plaintiff is a member in relation to the activity in which they are involved. According to this analysis, the inquiry does not begin with the question whether the plaintiff assumed the risk, in this instance the question whether this rider subjectively comprehended the precise risk this particular horse was easily spooked. Rather the inquiry begins—and ends—with an analysis of whether the defendant owed a duty to a plaintiff after assessing factors such as those listed in Rowland v. Christian (1968) 69 Cal.2d 108 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496].
This is the form of analysis the plurality itself used in Jewett to determine whether primary assumption of the risk applied. In that case, the parties were coparticipants in a touch football game. Most if not all participants in such competitive contact sports are aware there is a risk of injury through overexuberant play by other players. But that subjective appreciation of risk was not the focal point of the Supreme Court’s attention. Rather the plurality opinion, at least, looked to the policy implications of imposing a duty of care on participants toward their coparticipants in these contests. The high court decided public policy considerations militated against a duty of care, primarily because “vigorous participation in such sporting events likely would be chilled if legal liability were to be imposed on a participant on the basis of his or her ordinary careless conduct. . . . [E]ven when a participant’s conduct violates a rule of the game and may subject the violator to internal [585]sanctions prescribed by the sport itself, imposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule.” (Knight v. Jewett, supra, 3 Cal.4th 296, 318-319.)
Thus, under the plurality view in Jewett the question whether the rider in this case was subjectively aware of the precise danger (the horse she rented had a predisposition to spook) and voluntarily chose to ride this particular horse despite that knowledge is irrelevant to whether the riding stable which rented her the horse owed her a duty of care to provide safe horses or at least warn riders of dangerous ones. The analysis here as in Jewett properly focuses on the policy factors affecting the defendant’s duty to the plaintiff in the context of this particular activity. The question is: Do riding stables in the business of renting horses to members of the general public for purposes of trail rides owe a duty of due care toward those who rent those horses?
III. Commercial Riding Stables Owe a Narrow Duty of Due Care (Not Applicable in This Case) to Those Members of the General Public Who Rent Horses From Them.
Jewett and its companion case, Ford v. Gouin, supra, answered one set of questions in the field of recreational activities—the extent of the duties participants in recreational activities owe to each other. However, although once again arising in the context of recreational activities, the instant case raises a different issue—the duties commercial operators of recreational activities owe to members of the public to whom they sell their recreational services.
Though neither Jewett nor Ford ruled directly on the issue of a commercial recreational facilities’ duties to its patrons, Jewett contains extensive discussion of this issue in the course of explaining the scope and rationale of primary assumption of the risk. In this discussion, the Supreme Court went out of its way to distinguish between participants and commercial operators, emphasizing commercial operators of recreational facilities, such as baseball parks and ski resorts, might owe duties to other participants and spectators which participants would not owe to participants or to spectators.
As the high court observed: “[T]he scope of the legal duty owed by a defendant frequently will also depend on the defendant’s role in, or relationship to, the sport.
“The latter point is demonstrated by a review of one of the numerous cases involving an injury sustained by a spectator at a baseball game. In [586]Ratcliff v. San Diego Baseball Club (1938) 27 Cal.App.2d 733 [81 P.2d 625], a baseball spectator was injured when, walking in the stands between home plate and first base during a game, she was hit by an accidentally thrown bat. She sued both the player who threw the bat and the baseball stadium owner. The jury returned a verdict in favor of the player, but found the stadium owner liable. On appeal, the Court of Appeal affirmed.
“Had the Ratcliff court utilized an implied consent analysis, the court would have looked only to the knowledge of the particular plaintiff (the spectator) to determine whether the risk of being hit by an accidentally thrown bat was an inherent risk of the sport of baseball assumed by the plaintiff, and would have treated the plaintiff’s action against both defendants similarly with regard to such risk. The Ratcliff court did not analyze the case in that manner, however. Instead, the court implicitly recognized that two different potential duties were at issue—(1) the duty of the ballplayer to play the game without carelessly throwing his bat, and (2) the duty of the stadium owner to provide a reasonably safe stadium with regard to the relatively common (but particularly dangerous) hazard of a thrown bat. Because each defendant’s liability rested on a separate duty, there was no inconsistency in the jury verdict absolving the batter of liability but imposing liability on the stadium owner for its failure to provide the patron ‘protection from flying bats, at least in the area where the greatest danger exists and where such an occurrence is reasonably to be expected. [Citation omitted.]’ ” (Knight v. Jewett, supra, 3 Cal.4th 296, 317.)
The plurality opinion in Jewett likewise explained the duty of care a commercial sports operator owes participants (as contrasted to spectators). “Although defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport. Thus although a ski resort has no duty to remove moguls from a ski run, it clearly does have a duty to use due care to maintain its tow ropes in a safe, working condition so as not to expose skiers to an increased risk of harm. The cases establish that the latter type of risk, posed by a ski resort’s negligence, clearly is not a risk (inherent in the sport) that is assumed by a participant.” (Knight v. Jewett, supra, 4 Cal.App.4th 296, 315-316, italics added.)
The general principle which may be extracted from this discussion in Jewett is that commercial operators of sports and recreational facilities owe a duty of care to their patrons. In general terms, that duty is to ensure the facilities and related services which are provided do not increase the risk of injury above the level inherent in the sport or recreational activity itself. A [587]commercial operator violates this duty if, for instance, it sells or rents its patrons defective equipment which aggravates the patrons’ risk of injury.
The recreational activity here, of course, was horseback riding, specifically supervised trail riding with horses rented from the commercial operator of this horse-riding recreational service and with “wranglers” the operator employed to guide and supervise the trail ride. The commercial operator received compensation from the riders, both for renting them the horses and supplying them with “wranglers.”
There is no doubt horseback riding, even the rather tame sport of riding on the back of walking horses in an afternoon trail ride, carries some inherent risk of injury. A horse can stumble or rear or suddenly break into a gallop, any of which may throw the rider. But this does not necessarily mean the commercial operator of the horse-riding facility owes no duty of care to those who rent its horses and can never be liable for injuries suffered because a horse stumbles, rears, or suddenly breaks into a gallop. The commercial operator has a duty to supply horses which are not unduly dangerous.2 Furthermore, the operator owes the duty to warn the patrons renting a given horse if that horse has evidenced a predisposition to behave in ways which add to the ordinary risk of horse riding.
[588]This level of duty is consistent with duties owed by commercial operators of other forms of recreational facilities such as ski resorts. Skiing is an inherently dangerous sport. But this does not mean ski resort operators avoid owing a duty to skiers to supply them with nondefective ski lifts and trails. (Sunday v. Stratton Corp. (1978) 136 Vt. 293 [390 A.2d 398] [ski resort owes duty to skiers to properly groom novice trail]; cases collected in Annot. (1979) 95 A.L.R.3d 203.) Nor does the inherent danger which goes along with participating in or watching other sports mean the commercial operators of facilities offering these activities owe no duty of care toward participants or spectators. (Meistrich v. Casino Arena Attractions (1959) 31 N.J. 44 [155 A.2d 90, 82 A.L.R.2d 1208] [ice rink owes duty to skaters not to supply unusually hard and slippery ice]; Rosenberger v. Central Lousiana Dist. Livestock Show, Inc. (La. 1975) 312 So.2d 300 [rodeo arena owes duty to spectators regarding operation and maintenance of arena].)
Likewise, a whole host of duties can be ascribed to commercial providers of horse-riding facilities, i.e., not to provide faulty saddles, bridles and other equipment, not to provide dangerous trails, not to provide horses that are shodded poorly—and the list can go on and on. However, in this case we stop short of imposing a duty on stable owners to provide “ideal” riding horses such that they never buck, bite, break into a trot, stumble or “spook” when confronted by a frightening event on the trail such as a shadow or snake or react to peculiar movements of a rider such as excessive spurring or waving of a coat as in this case. We view sudden movements of a horse just as inherent in horseback riding as the presence of moguls on a ski slope are to skiers.
Public policy supports not imposing a duty on commercial operators of horse-renting facilities which provide supervised trail rides, to supply “ideal” horses, but we stop short of eliminating any duty such as a duty to warn of a dangerous propensity in a given horse. However, the one prior incident of the subject horse having spooked does not rise to the level of a dangerous propensity, in our opinion. It does rise to the level of a “horse behaving as a horse” with no incumbent duty on the part of the stable operator. In our opinion, to impose some sort of duty on a lessor of horses when a “horse acts as a horse” is to tell the commercial world that strict liability is imposed for any action of a horse inherent in horseback riding, with the concomitatant result that in all probability all commercial horseback riding will cease because of the risk involved to those that are self-insured or by reason of the prohibitive expense to obtain liability insurance for such an enterprise.
[589]We might add that here there indeed was evidence plaintiff rider had been contributorily negligent. She took her hands off the reins for a moment to unselfishly remove her coat to hand to a co-rider, a young girl, who was complaining of the cold. But this act of contributory negligence is immaterial as the Supreme Court has taught us in Jewett. Consequently, we are unwilling and do not impose on purveyors of horse rides a duty when a horse “acts” as a horse, any more than we would impose a general duty on commercial small boat operators when a wave suddenly moves a boat causing a passenger to be unbalanced and injured.
We find that the trial court was correct in concluding the action brought by the Harrolds was barred by primary assumption of the risk.
Disposition
The judgment is affirmed. Respondents to recover their costs on appeal.
Lillie, P. J., concurred.
Although named as a defendant, the record does not contain any documents filed on Mr. Suderman’s behalf. There is no indication he was served with the complaint or, if so, that Mr. Suderman filed an answer. Accordingly, all future references to the defendants are intended to include only GOAA and Rolling J.
Defendants initially argued there was no evidence in the record before the trial court demonstrating the horse Ms. Harrold rode had a propensity to throw its riders. In connection with this argument, defendants objected to the Harrolds’ inclusion of Paula Gow’s deposition and the third volume of Ms. Harrold’s deposition in the appendix in lieu of clerk’s transcript because neither deposition was before the trial court. The record reflects defendants’ counsel specifically stipulated to the Harrolds’ use of the deposition at the summary judgment hearing subject to an objection at that time and that no such objection was made. However, the record does not indicate whether the deposition was in fact before the trial court.
Because of this ambiguity in the record, we requested supplemental briefing concerning what evidence was presented to the trial court concerning the horse’s propensity to spook or throw riders. In response, the Harrolds cited to some evidence supporting that conclusion but also argued properly that the burden rested with defendants to provide competent admissible evidence which controverted the Harrolds’ allegations concerning the horse’s propensities.
The Harrolds had no duty to produce evidence establishing the horse’s propensity to spook or throw other riders in the absence of contrary evidence. As this court held in Witchell v. De Korne (1986) 179 Cal.App.3d 965, 976-977 [225 Cal.Rptr. 176], “[i]t is the burden of a moving defendant, in order to succeed on a motion for summary judgment, to controvert all of the material allegations of plaintiff’s complaint. The failure to do so precludes summary judgment.” (Italics added; accord, Brown v. Bleiberg (1982) 32 Cal.3d 426, 438 [186 Cal.Rptr. 228, 651 P.2d 815] [“a court may not consider the allegations of the complaint ‘except to the extent that they are not controverted by affidavits on either side’ ”], original italics; Pena v. W.H. Douthitt Steel & Supply Co. (1986) 179 Cal.App.3d 924, 929-930 [225 Cal.Rptr. 76]; Conn v. National Can Corp. (1981) 124 Cal.App.3d 630, 638-640 [177 Cal.Rptr. 445].)
Here, the Harrolds alleged “[djefendants willfully failed to warn Plaintiff Charlene I. Harrold of the unstable temperament of the horse and/or tendency to throw riders, in spite of the fact that Defendants knew, or in the exercise of reasonable diligence should have known, that the horse had previously thrown riders.” Defendants failed to controvert this [588]allegation. Accordingly, we must assume the allegation is true. (See Brown v. Bleiberg, supra, 32 Cal.3d at pp. 438-439; Conn v. National Can Corp., supra, 124 Cal.App.3d at p. 640.)