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When Standing Next to a Horse Becomes “Horseback Riding.”

Imagine you are participating in an endurance, 50 mile-long horseback riding event in Perris, California.  Two hours into the event, you and six others stop together, get off your horses, stand single-file, on the trail at a required checkpoint.  While you are standing, waiting to check in at the checkpoint, another rider gets knocked off his horse and the horse takes off running, it strikes you, knocking you to the ground and causing you serious injury.  You later learn that this has been a “problem horse” known to be unruly and injure others.  Do you have a case against the owner of the horse?

As you will recall from previous articles dealing with primary assumption of the risk, the doctrine applies to those whom participate in sports. Courts have held that the person engaging in a sporting activity “assumes” the likelihood of risk at the hands of the co-participants and thus may not sue a co-participant for any injuries while engaged in the “sport.”

There have been many cases determining just what is meant by engaging in a “sport.”  Some cases which have applied the primary assumption of the risk doctrine to activities such as skiing, river-rafting, competitive motorcycle riding, and sailing.  In Record v. Reason, (1999) 73 Cal. App. 4th 472, the Court, for the purposes of determining whether the doctrine of primary assumption of the risk applies, defined a “sport” as anything that “is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury.” Record v. Reason, (1999) 73 Cal. App. 4th 472, 482.

In Shannon v. Rhodes (2001) 92 Cal App 4th 792 the plaintiff fought back against the trend of having any activity remotely related to sports falling under the primary assumption of the risk doctrine. The plaintiff was a six year old boy whom was a passenger in a boat who fell overboard and was severely injured when he was either struck by the boat.  Ultimately, the Appellate Court held that, in the circumstances presented, the boat was simply a pleasurable means of transportation and not being used for “sport.”

In Childs v. County of Santa Barbara (2004) 115 Cal. App 4th 64, the plaintiff, an eleven year old, was injured after she rode her scooter over an uneven section of sidewalk. On appeal, the Appellate Court for the Second District held that riding a scooter was covered by the primary assumption of the risk doctrine only when the activity involved an element of danger, required physical exertion and skill, and included a competitive challenge – none of these factors was presented to the trial court. “Based on the undisputed facts, applying the assumption of the risk doctrine to simply riding a scooter on a residential sidewalk would not further the purpose of the doctrine to protect sports and sports-related activities from the chilling effect of the liability caused by inherent risks in the activity.”

Back to the hypothetical involving getting knocked down by a horse while standing on a trail during a break in a 50 mile endurance horseback ride.  Is the injury one that you have assumed in participating in the event?  The Court of Appeal for the Fourth District has ruled that it is an assumed risk.  The fact pattern is that from the recent case of Swigart v. Bruno(2017) 13 Cal. App. 5th 529.  The Court held:

“As a matter of law, the doctrine of primary assumption of risk barred a negligence claim by a participant in an organized endurance horseback riding event who was injured when she was standing on the ground at a checkpoint and was struck by another participant’s horse, which had taken off after being kicked by a third horse; the type of equine conduct at issue was among the risks inherent in endurance riding.”

Thus, even though Ms. Swigart was not riding her horse at the time of her injury, the horse’s conduct and resulting injury was of the type “inherent in endurance riding” and thus barred by the primary assumption of the risk doctrine.

What do you think?  If you have questions about the primary assumption of the risk doctrine and how it might relate to your case, give us a call at (951) 682-6400.

Mr. Serrano has been admitted to practice before California State and Federal Courts. He was named to the Super Lawyers’ 2012, 2013, 2014, 2015, and 2016 Southern California Rising Stars List, an honor awarded to no more than 2.5% of attorneys in Southern California each year. View Attorney Jean-Simon Serrano's Attorney Bio Here.

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