When celebrating a hard-fought courtroom victory, sometimes it’s better for a lawyer to tone it down a bit rather than going for the gusto.
Just ask California attorney Ellyn Levinson, whose misadventure with a horse named Pistol ended a barbecue championing her success in a land dispute.
Ellyn represented the California Department of Conservation in opposing Tehama County’s nefarious plan to make a lot line adjustment that affected the property rights of cattle ranchers Bert and Anne Owens.
Tehama County officials were stopped dead in their tracks thanks to a court order obtained by Ellyn.
Woo hoo! Time for a barbecue! (I guess when you’re a cattle rancher, it’s always Texas Two-Step time when you win a boundary dispute.)
In May 2005, Bert and Anne hosted the barbecue to celebrate the court victory, inviting Ellyn as an honored guest.
Before the party, Ellyn asked Anne if she could go horseback riding, assuring the rancher that she had ridden before. What wasn’t made clear at the time was that Ellyn’s experience was scanty at best, limited to some riding “at the park.”
Now, Bert and Anne have a working cattle ranch with trained quarter horses, not some foo foo dude ranch with docile trail horses.
So the Owens’ and Ellyn had completely different understandings of what it takes to ride a horse.
Misfortune awaits. Let’s proceed
Ellyn showed up at the barbeque, ready to hit the trail and Bert saddled up Pistol, a trained cattle horse, for Ellyn to ride. (Hey Ellyn! The horse’s name is Pistol. HELLO!)
Ellyn mounted up and headed out of the corral.
For some reason, Pistol bolted.
Rather than pulling back on the reins to try to slow Pistol down, Ellyn let go of the reins and grabbed the saddle horn, holding on for dear life.
Trickster that he is, Pistol made an abrupt cut to the left, throwing Ellyn through a fence and into a feed bunk.
Casting their previous cameraderie to the winds, Ellyn sued Bert and Anne, feeling someone else was responsible for her shattered hip.
According to Ellyn, the cattle ranchers “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.”
Last week, however, the California Court of Appeal concluded that Ellyn’s case fit neatly into the assumption of risk doctrine.
First, the court dispensed with Ellyn’s contention that Pistol was unreasonably dangerous.
“Pistol, trained to engage in abrupt movements when working cattle or performing in a rodeo, was precisely the type of horse that the guest would expect to ride in an open field at the cattle ranch. Thus, Pistol was not ‘unduly dangerous’ for that purpose. And undisputed evidence showed that, when ridden as a pleasure horse, Pistol was a gentle horse who had ‘never [before] run off or hurt anyone.’ No evidence was submitted which would support an inference other than that Pistol was simply ‘a horse behaving as a horse’ when he uncharacteristically galloped off and the rider was injured when she did not control him,” the court said.
Second, the court rejected the notion that Bert and Anne had a duty to ascertain Ellyn’s level of competence.
“Although, in hindsight, it became evident the injured rider lacked the skills to control a horse in that setting, the owners of Pistol were entitled to accept the rider’s representation that she had experience riding horses, thus indicating she knew how to control horses,” the court explained. “To impose a duty on the social host to second-guess the guest’s assertion and to cross-examine her about the extent of her experience would alter and chill the sport of horseback riding in the ultimate way — by precluding social guests from engaging in the sport.”
As the court summed up, “when the social guest asked her social hosts to allow her to ride one of their horses on their cattle ranch, and she professed to have the experience to do so, she ‘bit off more than she could chew’ and has only herself to blame for her inability to control a horse that behaved as a horse when it uncharacteristically galloped off.” (Levinson v. Owens)
— Pat Murphy
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