Opinion
C035057.
11-6-2003
KRISTA FERGUSON, Plaintiff and Appellant, v. DONALD EUGENE ULMER, Defendant and Respondent.
While riding in a western reining competition, equestrian and plaintiff Krista Ferguson fell and suffered severe head injuries. Sixteen-year-old Krista wore a western hat, not a helmet, during the competition. Several years earlier, Kristas parents had hired defendant Donald Eugene Ulmer to coach their daughter in western equestrian events. During his tutelage, Ulmer advised Krista that judges would penalize or disqualify her for wearing a helmet during competition and encouraged her to wear a western hat in both practice and competition. Kristas parents subsequently fired Ulmer. Several other individuals coached Krista in the year between the end of Ulmers employment and the accident. Krista sued Ulmer for negligence. Ulmer moved for summary judgment, arguing Krista assumed the risk of injury inherent in western riding. The court granted the motion, finding Ulmers duty to Krista ended with his employment as her coach. Krista appeals, challenging the courts decision and arguing the court abused its discretion in sustaining Ulmers evidentiary objections. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Krista participated in western riding events very successfully after employing Ulmer as her coach in 1991. Western riding events include competition in reining, an event designed to simulate the work of cowboys returning a cow to a herd of cattle. Reining requires the rider and horse to execute a series of complicated patterns involving starts and stops, turns and slides. Western reining is the most difficult and aggressive of the western show events.
Kristas father, who also rode in western competitions, testified both he and Krista had fallen while riding western. Her father did not wear a helmet in competition and stated that traditionally riders wear western hats, not helmets, in competition. Kristas mother also testified it was customary and traditional to wear western hats in western reining competition. Prior to Ulmers coaching, Krista wore a helmet in practice and a western hat in shows.
Kristas parents hired Ulmer in 1991 to coach her in western reining. Ulmer, a member of the International Arabian Horse Association (IAHA) and the American Horse Show Association (AHSA), was an internationally recognized western reining trainer. The AHSA and the IAHA licensed Ulmer to judge equestrian competitions, including western reining.
Ulmer trained Krista from 1991 through the summer of 1994. His instruction included informing Krista of the pertinent rules and scoring of the reining competition.
Shortly after he began training Krista, Ulmer told her she would be penalized or disqualified if she wore a helmet during western reining competition. According to Ulmer, the AHSA rules prohibited the use of protective headgear during reining.
The AHSA promulgates rules governing all AHSA and IAHA approved horse show competitions in the United States. The AHSA publishes the rules in the AHSA Rule Book.
Article 318 of the rules that took effect in December 1993 states, in pertinent part: "1. It is the tradition of the show ring that riders and drivers be correctly attired for the class in question, that attendants be neatly dressed and horses properly presented. [¶] 2. Riders in all classes where jumping is required and when jumping anywhere on the show grounds must wear protective headgear . . . . A Show Committee must bar riders without protective headgear from entering the ring for classes in which protective headgear is required and may bar any entry or person from entering the ring if not suitably presented to appear before an audience. [¶] . . . [¶] 4. Any exhibitor may wear protective headgear . . . in any division or class without penalty from the judge. [¶] 5. The AHSA strongly encourages all riders to wear protective headgear . . . while riding anywhere on the competition grounds. It is the responsibility of the rider, or the parent or guardian or trainer of the junior exhibitor to see to it that the headgear worn complies with appropriate safety standards for protective headgear intended for equestrian use . . . ."[]
The record does not contain the rules in effect prior to 1993.
The division of the rules governing western events states, in part: "Article 1675. Appointments. [¶] 1. Competitors must be penalized for incomplete appointments, but not necessarily disqualified. (Exception: See Art. 1675.8). [¶] . . . [¶] 8. Riders shall wear Western hat, long-sleeved shirt with collar, a necktie, kerchief or bolo tie; trousers or pants . . . . Chaps, shotgun chaps, or chinks, and boots are required. A vest, jacket, coat and/or sweater may also be worn." According to the testimony of Donna Rocchetti, an AHSA steward, nothing in article 1675 prevents the wearing of protective headgear.
Following Ulmers advice, Krista ceased wearing a helmet. After Ulmer shouted obscenities at Krista and other riders during a 1994 competition, the Fergusons discharged him. Following Ulmers discharge, the Fergusons retained Russ Brown and Mary Jane Schroeder to train Kristas horse in western pleasure riding and to coach Krista on rail work equitation. In addition, Don Murphy and his assistant Brad White, quarter horse trainers, occasionally gave Krista suggestions about reining her horse in the western technique. The Fergusons never discussed the rules concerning headgear with any of the individuals who subsequently coached or advised Krista on her riding.
In July 1995 Krista had no western reining trainer or coach. The Fergusons never discussed the wearing of protective headgear with anyone after Ulmer ceased training Krista. Nor did the Fergusons receive any information from any source to contradict Ulmers assertion that helmets could not be worn in western reining. Krista owned two helmets and always wore one when competing in the hunter pleasure class. If the Fergusons had known the western reining rules allowed helmets, they would have insisted Krista wear one.
On July 8, 1995, Krista competed in the Region III Championship Arabian Horse Show. While competing in the western reining class, her horse stumbled during a high-speed maneuver, throwing Krista to the ground. Krista wore a western hat, not a protective helmet, as did others in the western reining class. Krista suffered severe head injuries, leaving her permanently neurologically disabled.
Krista filed a complaint for negligence against Ulmer and the sponsors of the show: the IAHA and the AHSA. Krista alleged Ulmer negligently advised her that the use of a helmet was prohibited in competition. According to the complaint: "Had plaintiff not been prohibited by the Defendants . . . from wearing a helmet, she would have worn a helmet as a protective device. During the course of her presentation at the event, Plaintiffs horse stumbled, causing Plaintiff to fall to the ground. As a direct consequence of not wearing a helmet at the time of the fall from the horse, plaintiff suffered a serious injury to her head, which would not have occurred had she been wearing a helmet."
Ulmer filed a motion for summary judgment. He moved for summary judgment on two grounds: he owed Krista no duty because he was not her coach at the time of the accident, and the doctrine of primary assumption of the risk barred Kristas claim because her fall was inherent to the sport of western reining and Ulmer did not increase the risk of her accident.
Following a hearing, the court granted summary judgment in favor of Ulmer. The court found, "Defendant has demonstrated, by admissible evidence, that this defendant owed Plaintiff no duty related to the competition in which Plaintiff participated and suffered injury. There is, of course, no evidence that Defendant controlled the rules of the competition, or that he either forced or advised Plaintiff not to wear a helmet in this competition. Defendant had not been Plaintiffs coach for nearly a year prior to her participation in this event. Although Plaintiff and her parents assert that they obtained no advice regarding Western appointments from anyone after they discharged the Defendant as Plaintiffs coach, nothing prevented them from doing so. Defendants duty to Plaintiff ended with his employment as her coach. The burden shifted to Plaintiff to demonstrate a triable issue of material fact. Plaintiff has failed to do so."
Following entry of judgment, Krista filed a timely notice of appeal.
I
Summary judgment is properly granted if there is no question of fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Villa v. McFerren (1995) 35 Cal.App.4th 733, 741.) We construe the moving partys papers strictly and the opposing partys papers liberally. (Shively v. Dye Creek Cattle Co. (1994) 29 Cal.App.4th 1620, 1627.) The moving party must demonstrate that under no hypothesis is there a material factual issue requiring a trial, whereupon the burden of persuasion shifts to the opposing party to show, by responsive statement and admissible evidence, that triable issues of fact exist. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar); Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 548; Lorenzen-Hughes v. MacElhenny, Levy & Co. (1994) 24 Cal.App.4th 1684, 1688.)
However, "[f]rom commencement to conclusion, the moving party bears the burden of persuasion that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. (Fn. omitted.) There is a genuine issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar, supra, 25 Cal.4th at p. 845.) On appeal, we exercise our independent judgment to determine whether there are no triable issues of material fact and the moving party thus is entitled to judgment as a matter of law. (Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1466.)
II
Krista contends Ulmer breached his duty to her as her coach when he negligently told her not to wear a helmet during western reining competition. The elements of a cause of action for negligence are: (1) a legal duty to use reasonable care, (2) breach of that duty, and (3) proximate cause between the breach and (4) the plaintiffs injury. (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339.)
The traditional factors used to determine the existence of a duty in negligence law are: (1) the foreseeability of harm to the plaintiff, (2) the degree of certainty that the plaintiff suffered injury, (3) the closeness of the connection between the conduct and the injury suffered, (4) the moral blame attached to the defendants conduct, (5) the policy of preventing future harm, (6) the extent of the burden to the defendant, and (7) the consequences to the community of imposing a duty to exercise care with resulting liability for breach and the availability, cost, and prevalence of insurance for the risk involved. (Lawson v. Management Activities, Inc. (1999) 69 Cal.App.4th 652, 657.)
III
We begin by considering whether Ulmer owed Krista a duty, as her riding coach, to instruct her to wear protective headgear during western riding competition. After reviewing the undisputed facts, we conclude Ulmers duty to Krista did not extend to issuing such an instruction.
Under general negligence principles, a person ordinarily is obligated to exercise due care in his or her own actions so as not to create an unreasonable risk of injury to others. This legal duty generally is owed to the class of persons who it is reasonably foreseeable may be injured as a result of the actors conduct. Moreover, ones general duty of care includes the duty not to place another person in a situation in which the other person is exposed to an unreasonable risk of harm through the reasonably foreseeable conduct of a third person. (Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 716.)
Foreseeability alone is not sufficient to create an independent tort duty. Whether a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of the risk and a weighing of policy considerations for and against imposition of liability. Because the consequences of a negligent act must be limited to avoid an intolerable burden on society, the determination of duty recognizes that policy considerations may dictate that a cause of action should not be sanctioned no matter how foreseeable the risk. (Erlich v. Menezes (1999) 21 Cal.4th 543, 552.)
Instructors have a duty to use due care not to increase the risk to a participant in an activity or sport over and above those risks inherent in the sport. (Fortier v. Los Rios Community College Dist. (1996) 45 Cal.App.4th 430, 435; Lupash v. City of Seal Beach (1999) 75 Cal.App.4th 1428, 1436.)
The undisputed evidence reveals riders in western competition, at the time of Kristas accident, did not customarily wear helmets while competing. Within the world of western competition, riding apparel is designed to simulate cowboy regalia. Hence, the ubiquitous cowboy hat, not a safety helmet, completes the ensemble.
During the western competition at which Krista fell, neither she nor her fellow riders sported protective headgear. Both of Kristas parents agreed it was not common practice for western riders to don protective headgear.
Nor are the rules issued by the AHSA a model of clarity on the subject of headgear. In the general guidelines germane to all types of competition, the AHSA "strongly encourages all riders to wear protective headgear." The AHSA guidelines also hold trainers responsible "to see to it that the headgear worn complies with appropriate safety standards for protective headgear intended for equestrian use."
While laudable, these AHSA rules appear directly contradicted by the rules specifically applicable to western competition. The western rules warn competitors they will be penalized for "incomplete appointments." The required costume includes a "Western hat." The rules specific to western competition make no mention of, or allowance for, the wearing of protective headgear.[]
Krista cites only the general guidelines, arguing Ulmer had a duty to properly instruct her on competition rules. She ignores the contradictory rule governing western events.
Given the conflicting advice on apparel provided by the AHSA rules and the widespread practice of eschewing protective headgear during western competition, we cannot find Ulmer owed Krista a duty, as her trainer, to go against the prevailing custom and advise her to wear protective headgear.
Krista, citing numerous cases, argues a coach or trainer owes his or her pupil a duty to avoid increasing the risk of injury inherent in a sport. According to Krista, Ulmers "directive to ride without protective headgear is an affirmative act which increases the risk of injury."
We find Kristas underlying premise correct: An instructor has a duty to not increase the students risk of harm while participating in a sport. However, we do not find Ulmers advice increased the risk inherent in competing in western equestrian events. None of Kristas competitors availed themselves of protective headgear. Her own parent failed to wear protective headgear while riding western. Ulmers "directive" merely maintained the status quo: western riders wear western hats during competition.
In any event, in light of the widespread practice of eschewing protective headgear during western competition, we cannot find that a duty persisted after Ulmers employment ended to advise otherwise concerning the preferred headgear in connection with a competition held one year later.
We find Kristas situation far different from that of the equestrian in Galardi v. Seahorse Riding Club (1993) 16 Cal.App.4th 817 (Galardi). In Galardi, an experienced rider fell from a horse during training. She sued her instructor and the owner of the stables for negligence, claiming they caused her to jump over fences that were unreasonably and unnecessarily high, and improperly designed, located and spaced. The appellate court reversed summary judgment for the defendants. While recognizing that the risk of injury from a fall cannot be eliminated "and in fact creates the challenge which defines the sport," the court concluded the defendants owed a duty "to avoid an unreasonable risk of injury to plaintiff and to take care that the jumping array was not beyond the capability of horse and rider." (Id. at p. 823.)
Here, in contrast, Ulmer did not control the competition environment in which Krista competed. Ulmer bore no responsibility for the customary donning of western hats instead of protective headgear. He neither wrote the rather contradictory AHSA rules nor influenced the custom and practice of eschewing headgear in competition.
The present case also differs from the facts in Tan v. Goddard (1993) 13 Cal.App.4th 1528 (Goddard). In Goddard, an aspiring jockey filed suit against a jockey school and his instructor for injuries sustained when a horse he was riding fell. The appellate court reversed summary judgment granted in favor of the instructor and the school. The plaintiff alleged he placed himself in the hands of the schools riding trainer. The trainer assigned the plaintiff to a horse the instructor knew was "`off" due to an earlier injury. The instructor also told the plaintiff to jog the horse on the outer track, a very rocky trail. (Id. at p. 1535.)
The Goddard court concluded that under the circumstances, the instructor owed the plaintiff a duty of ordinary care to see to it the horse he assigned the plaintiff to ride "was safe to ride under the conditions he prescribed for that activity." (Goddard, supra, 13 Cal.App.4th at p. 1535.) The instructor breached that duty by assigning the plaintiff an unstable horse and instructing him to ride on an uneven track. (Id. at pp. 1535-1536.)
Here, Ulmers involvement in Kristas accident is far more peripheral than that of the instructor in Goddard. Ulmer, while instructing Krista in western riding several years before her accident, reiterated the custom of not wearing protective headgear. Ulmer gave his opinion of the rules governing competitive western attire, a reasonable opinion in light of the conflicting guidelines.
Neither the milieu of western riding competition nor the rules imposed upon western riders by the AHSA encouraged the use of protective headgear by competitors. Given these undisputed facts, we cannot find Ulmer breached any duty to Krista when he told her that western riding judges would disqualify her for wearing a helmet during competition and encouraged her to wear a western hat.[]
Our conclusion in this regard is bolstered by the recent decision in Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, a case involving a diving student who suffered a diving injury after her coach directed her to dive into a shallow racing pool without providing instruction on how to do so safely. There, the court concluded, "In order to support a cause of action in cases in which it is alleged that a sports instructor has required a student to perform beyond the students capacity or without providing adequate instruction, it must be alleged and proved that the instructor acted with intent to cause a students injury or that the instructor acted recklessly in the sense that the instructors conduct was `totally outside the range of the ordinary activity[.]" (Id. at p. 1011.)
IV
Finally, Krista argues the trial court abused its discretion in sustaining Ulmers evidentiary objections. Ulmer objected to portions of the declarations of Michael Ferguson, Kristas father, and Nancy Ferguson, Kristas mother, and to Kristas own declaration. The court sustained the objections.
As a general matter, a trial court is vested with broad discretion in ruling on the admissibility of evidence. The courts ruling will be upset only if there is a clear showing of an abuse of discretion. (In re Marriage of Slayton & Biggums-Slayton (2001) 86 Cal.App.4th 653, 661.) The burden rests with the party challenging the trial courts ruling to make a clear showing of an abuse of discretion. (Hernandez v. City of Encinitas (1994) 28 Cal.App.4th 1048, 1077.)
Ulmer objected to portions of Michael Fergusons declaration that discussed the structure or organization of the AHSA and the IAHA. However, the identity and structure of these organizations are not in dispute.
The excluded portion of Michael Fergusons declaration also asserted that "[f]rom 1991 forward, no one affiliated with IAHA or AHSA, other than Mr. Ulmer, coached Krista in western reining." The trial court found the fact disputed but immaterial. Moreover, as previously noted, the court concluded: "Although Plaintiff and her parents assert that they obtained no advice regarding Western appointments from anyone after they discharged the Defendant as Plaintiffs coach, nothing prevented them from doing so."
Finally, Krista challenges the trial courts ruling excluding the portion of Nancy Fergusons declaration stating "Krista did not fully understand and comprehend most of the questions" at the time of her deposition. However, as Ulmer points out, Krista fails to explain the significance of the deposition testimony to the issues on summary judgment. We find no error.
DISPOSITION
The judgment is affirmed. Ulmer shall recover costs on appeal.
We concur: NICHOLSON, Acting P.J. and KOLKEY, J.