Facts

Plaintiff Karen S. Stern was a 56-year-old novice horse rider took weekly private lessons for five months, and then group lessons for four months, all at Don-E-Brook Farms ("Farm"), where she boarded two horses that she owned. The plaintiff always rode "Spicy Lady," a very tame mare owned by the Farm. She rode in a weekly adult group lesson with a number of other women, including Janet Ward, who always rode "Corona," a spirited gelding also owned by the Farm.

The Farm, owned and run by champion horse rider, trainer, and coach Elizabeth Ekeberg and her daughters, including defendant Jill Dallaire, had never had an incident involving Corona or Spicy Lady, and had never had a claim, injury, lawsuit, accident, administrative fine or warning, or other derogatory action in over 10 years.

Corona, purchased from a famed horse breeder and trainer, had been put through a variety of tests and pronounced fit to be a group or private lesson horse by Elizabeth Ekeberg, who utilized Corona in that capacity for years, without incident.

Kelly White, daughter of Elizabeth Ekeberg and sister of Jill Dallaire, was the usual instructor for that adult group, but was unable to teach the class on Oct. 24, 2005 due to illness. Thus, Jill Dallaire took over the class. Kelly White had put the adult evening class through many skills and behaviors over the months and years, including tandem riding, where the horses ride next to each other, though not since plaintiff joined the group in June 2005. Jill Dallaire, who also had often taught adult novice group lessons, put the group through several gaits and skills, and then directed them to pair up, allegedly without providing further guidance or deciding which horses would ride together.

At one point, the plaintiff sensed a movement from the side, realized that she had been kicked by Corona while riding Spicy Lady, and slid off her horse. Her knee was fractured, necessitating hospital and further medical care. Corona had never kicked any object, animal, or person before, and was not known to anyone at the Farm to have ever kicked out or striking anything, though there was one prior incident where some riding students observed Corona kick out without contacting anything or anyone.
The Farm continued to use Corona as a group riding lesson horse, with no further incident or problem.

PLAINTIFF'S CONTENTIONS:
The plaintiff contended that the defendants negligently allowed the horses to pair up, without specifying which horse should be next to which horse, and without providing further instructions to the riding students.

The plaintiff also contended that the defendants knew or should have known that Corona was a horse too spirited and dangerous to be used for novice adult group lessons, and that Corona kicked out because he was too close to Spicy Lady and felt threatened, which should have been avoided by placing the horses further apart or by not having allowed the group to engage in pairs or tandem riding at all.

DEFENDANTS' CONTENTIONS:
The defendants contended that this case fits squarely within the primary assumption of the risk doctrine, and that the release plaintiff signed affected a waiver of her right to sue defendants for her sustained injuries.

The defendants objected to the entire declaration of plaintiff's expert, Rodney Bergen, since he was not a veterinarian and could not competently state what caused Corona to kick, and that he lacked the personal knowledge foundation for his opinions, since he was not at the accident site on that date, had never seen the property, had no knowledge of the conditions, and had never seen the horses or riders, much less examined or spoken with them, respectively. Bergen did not state how far apart the horses were during the tandem ride, or what a safe distance between them would have been, and so failed to specify what the standard of care was.

The defendants contended that Bergen was unable to state what caused the accident to happen with the requisite factual and expert foundation. The affirmative evidence established that the Farm had no knowledge or notice that Corona was in any way dangerous, before the subject incident, meaning that defendants had breached no duty to plaintiff.

The defendants further contended that the legal doctrines embodied in Civil Code section 1714 and BAJI 3.13 precluded recovery for plaintiff.

Settlement Discussions

The plaintiff made a statutory demand of $425,000. Plaintiff then demanded $1 million at mediation. The matter was mediated to no settlement. The defendant offered $20,000.

Specials in Evidence

$40,000 $100,000

Injuries

The plaintiff alleged that she suffered extreme pain and discomfort, both from the injury itself and from later medical procedures. She claimed that she required rehabilitation therapy, prompting time and quality of life lost.

Result

The court found that the lawsuit was barred by the primary assumption of the risk doctrine, and that there was no competent evidence of legal causation or breach of duty since the defendants' objections to the Rodney Bergen declaration were sustained.

Other Information

EXPERT TESTIMONY: Expert Rodney Bergen testified that defendants had been negligent, causing the plaintiff's injury, supporting plaintiff's assertions that defendants had increased the risks inherent in the recreational activity of horse-riding, taking this case out of the ambit of the primary assumption of the risk doctrine.