Cohen v. Five Brooks Stable
159 Cal.App.4th 1476, 72 Cal. Rptr. 3d 471 (2008)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A liability release for a recreational activity is unenforceable against a negligence claim unless it clearly, unambiguously, and explicitly states that it releases the provider from liability for its own negligence. Furthermore, a provider may be liable for an employee's conduct that is so reckless it falls totally outside the ordinary range of activity and increases the sport's inherent risks.
Facts:
- Susan Cohen and three others went on a guided horseback ride provided by Five Brooks Stable.
- Before the ride, Cohen signed a 'Visitor’s Acknowledgement of Risk' document (the Release).
- The group was led by Mark Wimple, an employee of Five Brooks Stable.
- During the return trip, Wimple allegedly caused his lead horse to suddenly move from a walk to a gallop without warning the other riders.
- As herd animals, the other horses, including Cohen's, followed the lead horse and also began to gallop uncontrollably.
- Cohen was unable to control her bolting horse, fell from the saddle, and was dragged with her foot caught in the stirrup, sustaining injuries.
- Cohen and another rider testified that Wimple gave no warning before accelerating.
- Wimple himself testified that his custom and his employer's instruction was to obtain consent from each rider before increasing the gait of the horses, but he could not say for sure if he did so on that occasion.
Procedural Posture:
- Susan Cohen filed a complaint alleging a single count of negligence against Five Brooks Stable in the trial court.
- Five Brooks Stable filed a motion for summary judgment based on the affirmative defenses of express and primary assumption of risk.
- The trial court granted the summary judgment motion in favor of Five Brooks Stable, finding that the release Cohen signed constituted an express waiver of her negligence claim.
- Cohen, as appellant, appealed the trial court's judgment to the Court of Appeal of California.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a visitor's acknowledgement of risk form, which requires a participant to assume responsibility for 'inherent risks' and 'risks not specifically identified' in horseback riding, unambiguously release the provider from liability for its employee's alleged negligence in causing the participant's horse to bolt?
Opinions:
Majority - Kline, P. J.
No. The acknowledgement of risk form does not unambiguously release the provider from liability for its own negligence. To be effective, a release of liability for future negligence must be clear, unambiguous, and explicit in expressing that intent, which this release fails to do. The court reasoned that the release focused on assuming 'inherent risks' of horseback riding, such as a horse bolting 'without apparent cause.' The phrase 'risks not specifically identified' is ambiguous and, construing it against the drafter, does not clearly encompass risks created by the stable's own negligence. The document never uses the term 'negligence' in reference to the stable or its employees, nor does it contain broad language releasing the stable from 'any and all claims.' The court further reasoned that while a bolting horse is an inherent risk, a trail guide provoking a horse to bolt without warning is not an inherent risk but may be conduct that increases the risk. Because there was conflicting testimony about whether the guide acted recklessly, this created a triable issue of material fact, making summary judgment inappropriate under the doctrine of primary assumption of risk as well.
Dissenting - Haerle, J.
Yes. The release was sufficiently broad to bar the negligence claim, and even if it were not, the plaintiff failed to plead or prove the recklessness necessary to overcome the primary assumption of risk defense. The dissent argued that the release's language covering 'risks identified herein and those risks not specifically identified' is broad enough to encompass the stable's negligence without needing to use the specific word 'negligence,' consistent with prior case law. Furthermore, the dissent contended that under the doctrine of primary assumption of risk established in Knight v. Jewett, a defendant is liable only for intentional or reckless conduct, not mere negligence. The plaintiff's complaint and arguments were based solely on a theory of negligence. Because recklessness involves a conscious disregard of a high degree of probability of harm and is distinct from negligence, the plaintiff failed to allege or provide evidence of the requisite level of culpability to overcome the defense, and the majority improperly reversed based on a theory the plaintiff never argued.
Analysis:
This decision reinforces the high standard in California for enforcing exculpatory agreements, requiring drafters to use explicit language to waive liability for their own negligence. It clarifies that general references to 'inherent risks' or 'unidentified risks' are insufficient. The case also provides a key distinction in the primary assumption of risk doctrine between an inherent risk (an animal's spontaneous behavior) and a risk actively increased by a provider's employee (a guide's reckless action). This distinction makes it more difficult for recreational providers to obtain summary judgment where there is evidence their employee's conduct was 'totally outside the range of the ordinary activity,' creating a question of fact for a jury.
Unlock the full brief for Cohen v. Five Brooks Stable