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New Assumption of Risk Application Bars Gross Negligence Claim

In a published opinion on June 22, 2017, the California Court of Appeal, Fourth District, in Swigart v. Bruno, 2017 WL 2686536, affirmed the judgment entered in favor of the firm's client after a summary judgment ruling finding the appellant's action was barred by the primary assumption of risk doctrine.  This ruling is significant as it provides a comprehensive analysis of the assumption of risk doctrine relative to the sport of endurance horseback riding, of which there were no previous published decisions in California, and in the context of co-participants in a sporting activity. 

The Appellate Court also affirmed that appellant had not met her burden to establish an issue of material fact as to her claims for gross negligence and strict liability (owner of a domestic animal with alleged known vicious propensity). In the action, Swigart and Bruno were both participating in an endurance ride event (or race).  When the first group of riders reached a card stop, another participant's horse kicked out at Bruno's horse causing his horse to bolt, which caused Bruno to fall off. Bruno's horse then collided with Swigart who had dismounted to pick up cards on behalf of all riders. Swigart claimed that during the ride Bruno could not control his horse and that he continuously tailgated and that this caused the other rider's horse to kick Bruno's horse.

The Appellate Court found, based on the record, which included a 40-minute video taken by another rider, that tailgating was a part of the sport; and that the horse kicking, Bruno being thrown, and Bruno's horse then bolting forward were all risks inherent in the sport, and thus assumption of risk applies. The court went on to rule that tailgating, including contact at times between horses, cannot be deemed reckless because "horses are 'natur[ally]' unpredictable and 'difficult to control.'" Thus, Swigart did not meet her burden of establishing a material issue of fact to defeat summary judgment on gross negligence.

Swigart had argued that gross negligence should not be adjudicated at the summary judgment level as it was an issue of fact. Finally and importantly, the court found that because Bruno's horse's behavior was not outside the range of ordinary activity of endurance riding, the propensities of Bruno's horse were not dangerous for the purposes of strict liability, as Bruno's horse merely 'behaved as a horse.' 

Again, the findings confirming that the court at summary judgment can adjudicate a claim of gross negligence is important, especially in the context of sporting events, as oftentimes plaintiffs will seek to avoid an express assumption of risk, or waiver of liability agreement, by claiming gross negligence which cannot be expressly waived by a party.  Likewise the court's holding on strict liability is equally important in equine cases as the court's ruling supports that horses being unpredictable or difficult to control do not rise to the level of a dangerous propensity to support a claim of strict liability.

This ruling provides an excellent discussion to assist in any activity wherein assumption of risk is a potential defense.  And of further note, due to the service of a statutory Offer to Compromise which plaintiff had rejected, the client obtained a judgment in his favor of approximately $31,000!


Selman Breitman provides this information for educational purposes. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case. This information should not be construed or relied on as legal advice or to create a lawyer-client relationship.