California Court of Appeal Jul 24, 2014 No. D063991Unpublished
Filed 7/24/14 Barrett v. Leech CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
NANCY L. BARRETT, as Successor in D063991 Interest, etc.,
Plaintiff and Appellant, (Super. Ct. No. 37-2011-00098545- v. CU-PO-CTL)
JAMES E. LEECH,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Joan M.
Lewis, Judge. Affirmed.
Law Offices of Steven Berkowitz and Steven Berkowitz for Plaintiff and
Appellant.
Boles & DiMascio, John D. Culver, Jr.; Greines, Martin, Stein & Richland, Robert
A. Olson and Gary J. Wax for Defendant and Respondent.
Patrick Barrett worked as a horse farrier (a person who attends to horses' hooves)
for more than 45 years. Defendant James E. Leech hired Patrick1 to trim his horses'
hooves. While Patrick was doing so, one of the horses knocked him down as he was
attempting to secure it, causing him to fall and hit his head on a rock. As a result of his
injuries, he passed away.
Patrick's widow and successor in interest, plaintiff Nancy Barrett, sued Leech for
premises liability and wrongful death, arguing that Leech had negligently allowed his
Cal.4th at p. 1132); and shark handlers (Rosenbloom v. Hanour Corp. (1998) 66
Cal.App.4th 1477, 1480-1481.)
Most analogous to this case, it has been applied to veterinarians and their
assistants. (Cohen v. McIntyre (1993) 16 Cal.App.4th 650, 654-655; Willenberg v.
Superior Court (1986) 185 Cal.App.3d 185, 186-187; Nelson v. Hall (1985) 165
Cal.App.3d 709, 714-715 (Nelson).)
When a veterinarian is injured during the course of treating an animal under his or
her control, the animal owner owes the veterinarian no legal duty, as a matter of law,
because the job carries with it a well-known risk of being attacked and bitten. (Priebe,
supra, 39 Cal.4th at p. 1130; Nelson, supra, 165 Cal.App.3d at p. 714.) "In other words,
the veterinarian, like the firefighter, cannot recover for injures arising out of the very
conditions he or she was hired to confront." (Rosenbloom v. Hanour Corp., supra, 66
Cal.App.4th at p. 1480.)
The cases applying the "veterinarian's rule" govern situations like this case where
a plaintiff confronts unpredictable animals as an inherent part of the job. (Priebe, supra,
39 Cal.4th at p. 1122.) As the California Supreme Court has held, "veterinarians, their
trained assistants, and those in similarly situated professions (e.g., dog groomers, kennel
technicians) are in the best position, and usually the only position, to take the necessary
safety precautions and protective measures to avoid being bitten or otherwise injured by
[an animal] left in their care and control." (Id. at p. 1130.)
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For example, Priebe, supra, 39 Cal.4th at page 1132, held that the veterinarian's
rule barred a claim by an injured kennel worker who, by virtue of her occupation,
assumed the risk of being injured by the dogs under her care and control. In that case our
high court held that the owner was in no position to supervise or prevent any conduct on
the part of the dog because determining "'the best way to handle the dog while at the
kennel, and what protective measures, if any, should be taken to ensure employee safety'"
fell on the plaintiff professional animal handler. (Id. at p. 1129.)
Similarly, in Nelson, supra, 165 Cal.App.3d at page 715, the Court of Appeal
affirmed summary judgment for a defendant dog owner where a dog undergoing
veterinary treatment bit the plaintiff, the veterinarian's assistant. The Nelson court held
that the assistant's tort claim was barred by assumption of risk because the "risk of dog
bites during treatment is a specific known hazard endemic to the very occupation in
which plaintiff voluntarily engaged." (Id. at p. 714.)
The court in Nelson held that the duty of handling the animal is on the hired
specialist: "The veterinarian determines the method of treatment and handling of the dog.
He or she is the person in possession and control of the dog and is in the best position to
take necessary precautions and protective measures." (Nelson, supra, 165 Cal.App.3d at
p. 715.)
In Willenberg v. Superior Court, supra, 185 Cal.App.3d at page 187, the Court of
Appeal applied the veterinarian's rule to bar a claim by a veterinarian injured when a dog
he was treating suddenly leapt off the examination table. In doing so, the court noted that
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"a visit to the veterinarian's office can bring about unpredictable behavior in a normally
docile animal, and this is an inherent risk which every veterinarian assumes." (Ibid.)
Cohen v. McIntyre, supra, 16 Cal.App.4th at page 655, held that where a licensed
veterinarian is injured during the course of treating an animal under his or her control, the
primary assumption of risk defense bars his or her negligence claim. In such cases, there
are no factual issues for a jury to decide. (Id. at p. 657.) Thus, the Court of Appeal held
summary judgment in favor of the defendant was proper. (Ibid.)
In this case, Leech cited and discussed these veterinarian's rule authorities in
moving for summary judgment. Nancy did not address them in opposing summary
judgment. On appeal, Nancy once again does not address these cases in her opening
brief. We conclude that the job of a farrier is an inherently dangerous occupation as
much, or more so, than that of a veterinarian, and therefore the assumption of risk
doctrine applies to bar Nancy's claims.
Cases have noted that horses, by their nature, are unpredictable and "difficult to
control." (Shelly v. Stepp (1998) 62 Cal.App.4th 1288, 1294-1295.) There is always a
risk that a horse will "buck, bite, break into a trot, stumble or 'spook' when confronted by
a frightening event," causing a person to suffer an injury. (Harrold v. Rolling J Ranch
(1993) 19 Cal.App.4th 578, 588.) Courts have described these risks as nothing more than
"a 'horse behaving as a horse.'" (Ibid.; Levinson v. Owens (2009) 176 Cal.App.4th 1534,
1538.)
Like veterinarians, Patrick, as a horse farrier, faced occupational dangers,
including the risk of being kicked, pushed or bumped by a horse. As a farrier entrusted
10
with control of Leech's horses, Patrick, not the owner, was "'in the best position to take
necessary precautions and protective measures'" to avoid injury. (Priebe, supra, 39
Cal.4th at p. 1130.) Thus, the owner, Leech, is not liable for the farrier's inability to
control the horse on the date of the accident.
In her opening brief Nancy relies heavily on the fact that the "entire corral area
was blanketed with rocks, many of which were large and pointed." However, this fact is
of no moment.
The record shows that the horse caused the farrier to fall, not the rocks.
Specifically, the horse's chest or face hit the farrier, causing him to fall backwards and hit
his head on one of the many rocks that covered the corral area.
Nancy asserts that primary assumption of risk does not apply because Leech
"significantly increased the risk to Patrick" by: (1) "creating and maintaining a
dangerous surface," and (2) "failing to secure or restrain the horse, or to even assist in
that activity." This contention is unavailing.
Leech may have had a duty not to increase the risk of harm beyond the inherent
risks in the farrier's job (see Amezcua v. Los Angeles Harley-Davidson, Inc. (2011) 200
Cal.App.4th 217, 231-232), but he had no duty to decrease the risk of harm (Balthazor v.
Little League Baseball, Inc. (1998) 62 Cal.App.4th 47, 52). A landowner owes no duty
to remedy or warn of an obvious danger on his or her property. (Danieley v. Goldmine
Ski Associates (1990) 218 Cal.App.3d 111, 121-122 (Danieley).) "Generally, if a danger
is so obvious that a person could reasonably be expected to see it, the condition itself
serves as a warning, and the landowner is under no further duty to remedy or warn of the
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condition." (Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393; see
Allen v. Jim Ruby Construction Co. (1956) 138 Cal.App.2d 428, 434 ["possessor of land
has no duty toward persons who come upon the land to change the method of his
operations which are carried on so openly as to be obvious to all observers," including
"the conditions of the surface" where work is being performed].)
In her opening brief Nancy states that the "entire corral area was blanketed with
rocks" and a number of these rocks "were six inches or larger in diameter." The assistant
who accompanied Patrick on the day of the accident testified that he noticed the ground's
surface "was very uneven" and that it had "[l]ots of rocks." The assistant stated the rocks
were so obvious on the day of the accident that he "had to be careful where [he] walked."
Thus, Leech had no duty to warn about any dangers that obvious rocks might pose to a
horse farrier.
Nancy attempts to analogize the rocky terrain on Leech's property to "large
exposed sharp rocks" on a ski slope. However, this analogy actually supports Leech's
position. A ski resort has no duty to remove open and obvious obstructions that are on,
or next to, a ski run because they are deemed obvious dangers that, themselves, serve as
warnings. (Danieley, supra, 218 Cal.App.3d at p. 124; O'Donoghue v. Bear Mountain
Ski Resort (1994) 30 Cal.App.4th 188, 192; Knight, supra, 3 Cal.4th at pp. 315-316.)
Such obvious dangers include trees or rocks. (Danieley, supra, 218 Cal.App.3d at p.
124.)
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Likewise, in this case it is undisputed that the rocks in the corral were open and
obvious. Thus, Nancy's ski slope analogy actually supports the court's grant of summary
judgment.
Nancy also contends that the owner "placed rocks in the corral areas of his
property," thereby "creating" a dangerous surface. However, this argument misstates the
record. The owner Leech testified that he added "boulders" to the corral areas for his
llamas to climb on.
Nancy also asserts that Leech had an affirmative duty to secure or restrain his
horses for the farrier or to assist him in that activity. However, securing the horses was
an essential part of the job for which the farrier Patrick was hired. The owner had no
duty to secure the horses once he gave up care and control to the specialist. (Priebe,
supra, 39 Cal.4th at p. 1130 [owner owed kennel worker no duty to restrain dog].)
Nancy contends that the farrier and the owner had a "special relationship" due to
the farrier's status as an "invitee" on the premises. However, even if this were the case,3
an invitee still could not recover "where the danger was obvious." (Henderson v. McGill
(1963) 222 Cal.App.2d 256, 259; Pauly v. King (1955) 44 Cal.2d 649, 653 [holding that a
landowner "'is not liable for injury to an invitee resulting from a danger which was
obvious or should have been observed in the exercise of reasonable care.'"].)
3 The classifications of invitee, licensee or trespassers are no longer determinative of the liability of a landowner. (Lundy v. California Realty (1985) 170 Cal.App.3d 813, 818.) 13
In sum, Leech owed no duty to ensure the farrier's safety from horses in an
obviously rocky corral. The farrier assumed the risks of his inherently dangerous
occupation and all of its associated risks.
Nancy also asserts that three triable issues of material fact exist: (1) The farrier
never placed a halter on the horse even though he had one with him, (2) the rocky terrain
was atypical of horse corrals, and (3) it was physically possible to remove the rocks from
the owner's property. However, Nancy in her opening brief fails to explain how any of
these facts are material. "'[E]vidence which does not relate to a matter in issue is
immaterial.'" (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67.)
Whether Patrick actually succeeded in placing the halter on and restraining the
horse is irrelevant. He brought a halter to restrain the horse. He entered the corral to
work on the horse, which obviously was not yet restrained. He had thereby assumed all
of the dangers and risks of being in close proximity to horses.
Assuming that the corral was atypical also does not change the result. The corral's
configuration and composition were obvious and apparent. It was up to the farrier to
assess the risks and safety of working with horses.
Finally, whether Leech had the ability to remove rocks from the corral is of no
moment. The fact that the horses were in a corral with rocks was obvious. Nevertheless
the farrier decided to assume the risks with the horses under these conditions.4
4 Based upon our holding that assumption of the risk bars Nancy's claims, we need not address Leech's contention that because Patrick was hired as an independent contractor he owed no duty to him. 14
DISPOSITION
The judgment is affirmed. Leech shall recover his costs on appeal.
NARES, J.
WE CONCUR:
McCONNELL, P. J.
AARON, J.
15
AI Brief
AI-generated · verify before citing
Holding. The primary assumption of risk doctrine, specifically the 'occupational assumption of risk,' bars a negligence and wrongful death claim by a professional horse farrier injured by a horse while working in an obviously rocky corral.
Issues
Does the primary assumption of risk doctrine apply to the occupation of a horse farrier?
Did the landowner have a duty to protect the farrier from risks inherent in the occupation or from obvious conditions on the property?
Did the landowner increase the risks of the activity such that the assumption of risk doctrine is inapplicable?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The court granted summary judgment. It ruled that primary assumption of risk applies to the inherently dangerous occupation of a horse farrier, barring the suit as a matter of law.”
“In sum, Leech owed no duty to ensure the farrier's safety from horses in an obviously rocky corral. The farrier assumed the risks of his inherently dangerous occupation and all of its associated risks.”