Again, a bad response to the accident and poorly written release, if you can call it that, wiped out all defenses to the lawsuit.
Posted: August 21, 2023 Filed under: Assumption of the Risk, California, Equine Activities (Horses, Donkeys, Mules) & Animals, Release (pre-injury contract not to sue), Youth Camps | Tags: assumption of the risk, Dressage, Equine, Foxfield Riding School, Gross negligence, horseback riding, Inherent Risk, Ordinary Negligence, Release, Sleepaway Camp, Waiver Leave a commentThe way the plaintiff was treated post injury, you could see that litigation was coming.
Browne v. Foxfield Riding Sch. (Cal. App. 2023)
State: California; California Court of Appeals, Second District, Sixth Division
Plaintiff: Ava Browne, through her mother, Kelly Browne
Defendant: Foxfield Riding School and riding instructor Katelyn Puishys
Plaintiff Claims: ordinary and gross negligence
Defendant Defenses: Assumption of the Risk & Release
Holding: for the Plaintiff
Year: 2023
Summary
The plaintiff fell off her horse at a camp for jumping. She walked back to the cabin by herself and ended up needing emergency back surgery. The facts leading up to her injury were equally concerning. The court found multiple was to void the release and send this win back to court so the plaintiff could try again.
Facts
Ava was 12 years old when Kelly enrolled her in Foxfield’s summer sleepaway camp. Kelly completed and signed Ava’s application. In the application, Kelly indicated Ava had prior experience in horseback riding, including jumping crossrails. The application also stated that Ava was a “Level 3” rider at Mill Creek Riding School. A “Level 3” rider at Mill Creek would have been taught how to “jump horses, with multiple jumps,” and how to control a horse’s speed from walking slowly “all the way to canter.” Such a rider would also have been introduced to bigger and wider jumps.
Foxfield evaluated Ava on the first day of camp and placed her in the group with the least advanced riders. On the first and second days of instruction, Ava rode a horse named Polly in an enclosed dressage ring. Ava felt comfortable riding Polly.
On the third day of instruction, Foxfield assigned Ava a horse named Sonny, and Puishys taught the lesson. Ava rode Sonny in the dressage ring for about an hour and practiced some jumps. The group then went into the cross-country field. Ava completed her first jump with Sonny in the field, but fell off on her second jump, the “log jump.” Sonny bucked during the jump, and Ava was thrown off and landed on her back. Puishys continued with the riding lesson while Ava walked back to the cabins by herself.
Ava called Kelly from camp, and Kelly took her home. The next day, Ava had an X-ray done on her neck. She suffered a spinal injury requiring emergency surgery.
At trial, Ava testified she was nervous about riding Sonny. While riding in the dressage ring, she had difficulty controlling Sonny and told Puishys she needed instructions. Puishys “brushed it off.” Ava was also nervous about riding in the cross-country field and told Puishys she could not do it. Puishys told Ava to “face [her] fears.”
Another camper in Ava’s group testified that Ava was having problems controlling Sonny right before the log jump. She said that Sonny seemed to “want[] to go fast” and that he was “hard to control.”
The Brownes also presented deposition testimony of Foxfield’s owner, who testified that it was not typical for dressage ring riders to be taken into the cross-country field on their third day of instruction.
After the Brownes’ case-in-chief, Defendants moved for nonsuit based on the primary assumption of risk doctrine and Foxfield’s release of liability. The trial court granted the motion as to the issue of ordinary negligence, but denied it as to gross negligence. The court found that the signed release “was specific” and “very broad.” It found the release “encompassed every one of the activities that the plaintiff engaged in, including but not limited to the activity of cross[-]country field jumping at the time the injury occurred. [¶] So clearly, primary express assumption of the risk has been established as a matter of law. There’s nothing for the jury to resolve in that regard.”
The trial proceeded on the issue of gross negligence, and the jury returned a verdict in favor of the Defendants. After partially granting the Brownes’ motion to strike and tax costs, the trial court awarded nearly $97,000 in costs to Defendants.
Analysis: making sense of the law based on these facts.
Reviewing the facts, it is fairly obvious there are some factual issues that raise a concern before the law is applied to the case. The release or at least language to prevent litigation is part of the application, not a separate document or at least not set out to be identified as important information.
The instructor seems to be indifferent towards the students and fails totally after the plaintiff fell off her horse. “…Ava was thrown off and landed on her back. Puishys continued with the riding lesson while Ava walked back to the cabins by herself.”
Failure of the instructor to listen to the concerns of the student and absolute failure to follow up or to respond when the student falls is scary.
At the same time, there also seems to be a real failure to understand the skills of the plaintiff. Her mother on the application writes down one level of skills, the evaluation seems to show a different level of skill, and the actual skill of the plaintiff is less than the other evaluations.
The failure of the student to adequately identify her skills with what she showed and the failure of the instructor to understand the needs of the plaintiff combined to create a lawsuit.
Legal Analysis
The plaintiff argued the release was void because the release:
…clearly and unambiguously” release claims arising from Defendants’ negligent conduct, which increased the inherent risks of horseback riding. Alternatively, they argue the release was void for a lack of meeting of the minds.
The court went into a thorough review of what is required for the plaintiff to win a case, a prelude to the defendant losing the case.
To prevail on a cause of action for ordinary negligence, a plaintiff must prove the defendant owed them a legal duty, breached that duty, and proximately caused their injury. Although a defendant generally has a duty” ‘not to cause an unreasonable risk of harm to others [citation], some activities-and, specifically, many sports-are inherently dangerous. Imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation.’ The primary assumption of risk doctrine, a rule of limited duty, developed to avoid such a chilling effect. Where the doctrine applies to a recreational activity, operators, instructors[,] and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity.” ([coach has duty to not increase risk of harm inherent in learning a sport].) A written release may exculpate a defendant by negating that duty.
The analysis of the law continued.
” ‘Contract principles apply when interpreting a release. ‘Where, as here, the interpretation of a release does not turn on the credibility of extrinsic evidence,” ‘” ‘construction of the instrument is a question of law . . . . It therefore follows that we must independently determine whether the release in this case negated the duty element of plaintiff[s’] cause of action.” ‘”
The scope of a release is determined by its express language. “The express terms of the release must be applicable to the particular negligence of the defendant, but every possible specific act of negligence . . . need not be spelled out in the agreement.” “‘ “It is only necessary that the act of negligence, which results in injury to the releasor, be reasonably related to the object or purpose for which the release is given.” ‘”
To be effective, a “release ‘must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties.'”
In the above quotes, the appellate court is pointing out that the language in the release is going to be defective, voiding the release. However, the court is not done with why and how the release is going to be denied, the court then attacks the defense of assumption of the risk.
Thus, where the primary assumption of risk doctrine applies, the release must clearly and unambiguously exempt the defendant from liability from their own misconduct or negligent acts that increase the risks inherent in the activity. It must be sufficiently clear and explicit to” ‘set forth to an ordinary person untrained in the law that the intent and effect of the document is to release . . . claims for [their] own personal injuries and to indemnify the defendants from and against liability to others [that] might occur in the future.'” “If an ambiguity as to the scope of the release exists, it should normally be construed against the drafter.”
Finally, the court gets to the point.
The express language of the release here does not “clear[ly], unambiguous[ly], and explicit[ly]” relieve Defendants of liability resulting from their own negligence or for conduct that increased the risks inherent in horseback riding.
The release language fails. There is no language in the release, that in the court’s opinion gave notice to the plaintiff that they were giving up their right to sue. The release did not use the word negligence or any phrase or other words that indicated this was a release.
But nothing in the release mentions negligence, negligent acts, or misconduct by the Defendants. Nor does the release inform an ordinary person untrained in the law that it would apply to Defendants’ negligent conduct or conduct that increases the risks inherent in horseback riding.
The release does state that Kelly “waive [s] any claims that [she] might have against [Defendants]” and that she “agree[s] to pay all doctor or hospital fees” if Ava was injured at Foxfield. But we do not read these statements in isolation. Instead, we must interpret the release as a whole and its language in context,….
This analysis cumulates in the analogy that the release, if 0ne exists or the assumption of the risk language, only prevents claims for the inherent risks of the activity.
Read in context, the waiver language appears in the same sentence as the releasee’s assumption of inherent risks. Thus, we interpret it to encompass only those injuries resulting from the inherent risks of riding or handling of horses, not injuries resulting from Defendants’ alleged negligent acts. It is not a waiver of all liability.
The inherent risks of any activity are assumed by anyone participating in the activity. A release is used to cover those risks that are created by the defendants or those risks that are increased by the actions of the defendants. The court stated the release, if it was one, had no value.
The risk of injury caused by the defendants’ negligence was not within the scope of the release because a release requires “a high degree of clarity and specificity . . . in order to find that it relieves a party from liability for its own negligence.”
The court concluded that the only risks the plaintiff assumed were those inherent in the activity.
The only risks the Brownes assumed was related to the inherent risks of horseback riding. They did not assume liability attributable to Defendants’ negligence or conduct that increased the inherent risks in horseback riding.
The plaintiff also argued the jury instructions for gross negligence were incorrect. The defendant won at trial on the claims of gross negligence.
“Gross negligence is the lack of any care or an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to oneself or to others. A person can be grossly negligent by acting or failing to act.”
However, the court found the instructions were clear. However, this did not really matter because since the underlying negligence claim was now back on the table, the new trial, gross negligence would be back as a claim.
The plaintiff also argued that because the defendant was not properly licensed and accredited, there could not be a meeting of the minds. Meaning the contract, the release was void, because there was important information concerning the contract that would have prevented the plaintiff from entering into the contract if known by the plaintiff. The court did not consider this argument because it held the release was void. However, this is an interesting argument that we will probably see in the future.
Brownes argue that was error because the evidence was probative to show the release was void for a lack of meeting of the minds-i.e., that Kelly would not have signed the release if she had known Foxfield was not properly licensed and accredited. We do not resolve this argument because even if the evidence was probative to the release being void, its exclusion was harmless given our conclusion that the release only applied to injuries resulting from the inherent risks of horseback riding and not to the negligence claims.
The defendants were awarded costs of nearly $97,000. That award was based on an offer of settlement that was rejected by the plaintiff. An offer of settlement is made by the defendant means the defendant says to the plaintiff we will give you $XX dollars and a judgment. If you accept this, you get the $XX immediately. If you reject the settlement, then any cost, we incur after the offer is rejected can be billed to you if you win the amount we offer or less.
Since the win was overturned by the court then the $97,000 judgement was also overturned.
There was a dissent in this opinion, which would have upheld the win for the defendant.
So Now What?
Again, reading this case, you can see the result coming way before the court ever states its decision because of the over-justification used in the decision. At the same time, there are some clear issues that helped the court reach its decision.
The release was poorly written and part of an application. The court did not even get into the issues of how the release was presented as part of an application. The language alone was enough to trigger the failure of the release to work.
The second clear issue is how the plaintiff was treated before and after the fall. Walking back to her cabin, alone, after being told to “face her fears” and brushed off her other concerns.
To read about other poorly written releases see:
Poorly written release in Massachusetts stop lawsuit for falling off a horse during riding lessons.
Poorly written release gave the plaintiffs the only chance they had to win
To read about other California cases see:
To read about other equine (horse) cases see:
Equine laws stop suit against horse, outfitter still sued.
One winner for equine liability statutes. Indiana statute stops litigation based on horse kick.
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Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
Copyright 2022 Recreation Law (720) 334 8529
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Author: Outdoor Recreation Insurance, Risk Management and Law
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Email: Jim@Rec-Law.US
By Recreation Law Rec-law@recreation-law.com James H. Moss
@2023 Summit Magic Publishing, LLC
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