Our Truckee-Tahoe economy is recreation-based. Name the sport – it’s done in our Sierra Region.
There is an entire body of law involving recreational activities where the participant is deemed to have “assumed the risk” of injuries inherent in the activity, and thus has given up the right to sue. The public policy is to encourage recreation.
The “Law Review” has briefed lots of assumption of risk cases including ski and boarder injuries, water skiing and tubing, baseballs even “bean balls,” baseballs that hit fans, bicycle races, touch football (the first case in California), bumper cars, skate boarding, errant golf balls, horseback trail riding and the “walk into burning man embers” case. All upheld assumption of the risk.
Plaintiff Kathleen Swigart and defendant Carl Bruno participated in an American Endurance Ride Conference- sponsored long distance horseback riding event in Perris, California somewhere near Riverside. Probably similar to the 100-mile Western States (Tevis) Trail Ride.
Forty-nine riders participated in the event, collecting playing cards at set check points along the way. The horses have to pass veterinarian testing.
Both Swigart and Bruno were very experienced endurance riders, each having won many events.
Less than two hours into the ride, seven horses were close together in a single line – with Swigart in front, Bruno in the rear and Diane Stevens immediately in front of Bruno. At the 8-mile check point, Swigart dismounted to retrieve cards for all of the riders in the group, as Stevens and Bruno were slowing down from behind.
Bruno’s horse bumped the rear of Steven’s horse, Steven’s horse then kicked Bruno’s horse, Bruno was thrown and his horse bolted forward striking and injuring Swigart, who was standing with the playing cards. Swigart sued Bruno.
Trail riding trivia. Some trail riding horses wear red ribbons on their tails “to designate a horse likely to kick on a trail ride.” Don’t follow them.
RELEASE OF LIABILITY FORM
Before participating in the endurance ride, Swigart signed a form “Release of Liability.” The Court of Appeal did not rule on whether the release would hold up legally, it did not need to opine. However, I will opine. If the release was properly drafted, it would have been another basis for Bruno to escape liability. Carefully drafted, and there is an art, release of liability forms are usually enforceable.
ASSUMPTION OF THE RISK
The trial court ruled for Bruno, Swigart appealed. The California Court of Appeal also ruled for Bruno, citing the law that a participant in an active sport or recreational activity who is negligent and injures another – is liable only if the participant intentionally injures another participant or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.
A recreation event host or participant may not increase the risks inherent in the sport.
“BEHAVING AS A HORSE”
The Court of Appeal viewed the evidence and used common sense (as the Court wrote) concluding that horse tailgating during endurance trail events is common, adding, “we know that horses, by their nature, are unpredictable and difficult to control. There is always a risk, merely by ‘behaving as a horse,’… a horse with its rider will cause injury.”
Take that cowboys – partner Pete Cuttitta and buddy Tom Archer.
The Court ultimately found that Bruno’s horse acted like horses are wont to do. Unfortunately Swigart was injured, but has no recourse. If everyone in an endurance ride could sue if injured, there would be no more endurance rides.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOA’s, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at email@example.com or www.portersimon.com.
Like us on Facebook. ©2017
The content contained and opinions expressed in this blog are solely those of the author. This blog contains content and opinions concerning the law generally, and is not intended to constitute legal advice or to create any attorney‑client relationship with the reader. The reader should consult with an attorney about any specific legal issues prior to embarking on any course of action or inaction involving legal matters. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the contents of this blog and expressly disclaims liability for any errors and omissions.