Levinson v. Owens
Filed August 26, 2009
Cite as C057565

Plaintiff Assumes Risk in Riding a Cattle Horse

Bert and Anne Owens hosted a barbeque at their cattle ranch to celebrate the recent victory in a case represented by Attorney Elly Levinson (Levinson) involving a piece of land they own.

Before the barbeque, Levinson asked permission if she and her daughter Rachel could do some horseback riding while at the ranch. When asked if Levinson had riding experience, the latter said that she had.

On the day of the barbeque, the guests, including Levinson and Rachel, went to the barn to pick a horse. Pistol, trained as a cattle horse, was given to Rachel but the latter changed her mind so Levinson got it instead.

Bert no longer asked if Levinson had riding experience since she earlier said that she had. But he reminded her not to pull back on the reins because the horse was sensitive.

Bert led the riders into a small corral. Levinson had no problem riding Pistol. But when Pistol entered a larger field, it began to move and gallop. Pistol abruptly cut to left throwing Levinson.

Levinson broke her hip and her face was cut by a barbed wired at the top of the fence.

Consequently, Levinson and her daughter filed a negligence suit against Bert and Anne (defendants). They alleged that the defendants “had a duty not to increase the inherent risk of horseback riding” and “breached this duty and increased the risk inherent in horseback riding by selecting a horse that, by its very nature, training and disposition, was inappropriate, unsafe and unduly dangerous for a beginner rider”.

Defendants moved for summary judgment. They based their motion on the doctrine of primary assumption of the risk and argued that they owed Levinson no duty of care because her decision to ride Pistol carried with it an assumed risk that she could fall. Moreover, they “did nothing to increase this inherent risk of horseback riding.”

Levinson opposed the motion by arguing that Pistol’s act of suddenly cutting abruptly to the left was not an inherent risk of horseback riding and defendants recklessly increased the risk by letting her ride highly trained cattle, Pistol. In support, she submitted a declaration from Rod Bergen, an expert in horse riding and handling.

The trial court ruled in favor of the defendants by saying that defendants were ranchers and not coaches, instructors or in the business of renting out horses. By engaging in an inherently dangerous activity of horseback riding, Levinson assumed the risk of being injured by the horse or careless conduct of others.

Levinson appealed.

The California Appeal Court affirmed the decision of the district court. It ruled that Levinson should have expected that a horse at a working cattle ranch would be trained to work cattle and could not be expected to be like a trail ride horse. That a horse capable of abrupt movement did not present a triable issue of fact to know whether it was an "unduly dangerous" horse for purposes of noncommercial pleasure riding on a working cattle ranch.

Moreover, Levinson told Bert that she had an experience riding horses before. Hence, defendants were entitled to accept her representation.

Moreover, given Levinson’s professed experience with horseback riding, defendants had no duty to instruct her how to control horse.