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Release saves riding school, even after defendant tried to show plaintiff how to win the case.

As an expert you just can’t state facts, you have to prove your facts.

Azad v. Mill Creek Equestrian Center, Inc., 2004 Cal. App. Unpub. LEXIS 11218

Plaintiff: Nicole Azad

Defendant: Mill Creek Equestrian Center, Inc.

Plaintiff Claims: negligence and gross negligence

Defendant Defenses: Release

Holding: for the defendant

This is a horseback riding case. The plaintiff was a beginner rider taking lessons from the defendant. The defendant’s instructor placed her in the jumping ring for training. Another horse in the ring spooked, which spooked the horse the plaintiff was riding. The plaintiff’s horse jumped the ring fence. The plaintiff fell off breaking her leg.

The plaintiff had signed a release before starting the lessons. The release was well labeled stating on each page that it was a release. The release also had a notice right above the signature line indicating the signor was giving up their legal rights.

The release, however, specifically stated that it did not prevent claims for gross negligence.

The plaintiff sued for negligence and after getting educated by the defendant, for gross negligence. The trial court dismissed the case after the defendant filed a motion for summary judgment. The plaintiff appealed.

Summary of the case

On appeal the plaintiff claimed:

…there are material issues of fact regarding whether the release was clear and whether it exempted the challenged conduct. She also argues MCEC increased the risk to Azad beyond that inherent in horseback riding.

The court first looked at the validity of the release against a case argued by the plaintiff that found a release was insufficient. The court then only compared the release in this case to the arguments made in the case raised by the plaintiff.

The release was a two-page document. On the first page, it contained a titled, “LIABILITY RELEASE AND INDEMNITY AGREEMENT.” On all other pages, it stated, “RIDING INSTRUCTION AGREEMENT AND LIABILITY RELEASE FORM.” Above the signature line, there was a statement that the signer was aware of the legal issues and acknowledgement of the legal issues.

The court found the release worked to stop claims of ordinary negligence but not gross negligence.

The court then reviewed California law on the duty owed by instructors in sports.

By consenting to participate in a sport that includes risks, a person consents to assume the risks inherent in the sport. A person does not consent to a breach of a duty by another that increases the risks inherent in the sport.  “‘[A] purveyor of recreational activities owes a duty to a patron to not increase the risks inherent in the activity in which the patron has paid to engage. . . .'”

A sports instructor must intentionally injury a student or engages in conduct that is totally outside the range of ordinary activity to be liable. Other than those two issues, the participant assumes the risk of the sport.

… a sports instructor breaches a duty of care only “‘if the instructor intentionally injures the student or engages in conduct that is reckless in the sense that it is ‘totally outside the range of the ordinary activity.’

In this case, the plaintiff had not raised any issues or facts, other than statements of the plaintiff’s expert witness who could support a claim of gross negligence. The plaintiff’s expert alleged the actions of the defendant were grossly negligent but did not demonstrate any facts showing an “extreme departure from the ordinary standard of conduct.” The court also pointed out the plaintiff stated the instructor was inadequately trained but not support her statement with proof.

The court in stating there was not proof of gross negligence stated:

Gross negligence is defined as “‘”the want of even scant care or an extreme departure from the ordinary standard of conduct.”‘” This definition is similar to the standard employed in Kahn – conduct totally outside the range of ordinary activity.

The court upheld the dismissal of the plaintiff’s complaint.

So Now What?

This release had 2 great points. The title and the heading on each page said this is a release. I’ve continuously stated that you cannot hide your release in other documents. It must be presented as a release to the signor and must plainly set forth the signor is giving up their legal rights.

However, don’t help the plaintiff sue you? Here the release said this document is no good if you prove I was grossly negligent. So what did the plaintiff need to do, prove gross negligence to win.

The facts of the case were pretty tame, and the injury to the plaintiff was relatively minor.

The court did look at what it would take to prove gross negligence from reviewing other cases. One was having a manual and showing an extreme departure from the manual.

If you write it down as the “way,” you better follow it.

What do you think? Leave a comment.

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By Recreation Law       Rec-law@recreation-law.com              James H. Moss               #Authorrank

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