Dolezal v. Carbrey

778 P.2d 1261, 161 Ariz. 365, 32 Ariz. Adv. Rep. 60, 1989 Ariz. App. LEXIS 108

• Court: Court of Appeals of Arizona
• Decided: April 18, 1989
• Docket: 1 CA-CIV 9851, 1 CA-CIV 9934
• Status: Published

Opinions

OPINION

CORCORAN, Judge.

Plaintiffs appeal from summary judgment in favor of defendants on a negligence claim, arguing that they presented a prima facie case of negligence to the trial court and that summary judgment was improper. We agree.

Facts

On appeal from summary judgment, we view the facts and all inferences therefrom in the, light most favorable to appellants. State ex rel. Corbin v. Challenge, Inc., 151 Ariz. 20, 24, 725 P.2d 727, 731 (App.1986). Appellee Frank Carbrey owned two horses, which were boarded and stabled at appellee Forrest Holden’s Cactus Equestrian Stables. One of the horses was a quarterhorse, nicknamed “Blue,” which was ridden primarily by professional trainers and Carbrey’s 11-year-old daughter, Allison. A “show horse” that had been trained to respond to subtle cues from its rider, Blue had won approximately 90 ribbons prior to the incident in question.

In December 1985, appellant Carole Dolezal was visiting her parents for the holidays. Carbrey, their neighbor, invited Carole to visit the stables and go horseback riding. Carole accepted the invitation and accompanied the Carbrey family to the stables on December 22, 1985. Carole told Carbrey that her riding experience was very limited and that she was a novice. Before that occasion, she had ridden a horse only two or three times and had never received formal riding instructions. Carbrey gave Carole some verbal instructions on how to ride, but did not tell her how to mount, sit, use the reins, turn, stop, or dismount. Expert testimony indicated that Carbrey’s few verbal riding instructions to Carole were “like telling someone how to drive a car, sitting in the living room telling them ... and then giving them the keys____ An expert also testified that Carole did not know enough about riding horses to know what questions to ask Carbrey concerning properly mounting, riding and dismounting a horse.

Carole rode Blue in the riding arena at the stables. Allison was in the center of the arena observing Carole during the entire ride. At one point, Allison saw Carole flapping her legs against Blue’s side and instructed her not to do so. Carbrey was also in the arena riding another horse. A gate was open at one end of the arena, contrary to written instructions posted on the gate that it was to be closed at all times.

After riding for approximately 25 minutes, Carole brought Blue up to Allison and attempted to dismount while Allison held the reins. As she was dismounting, Carole apparently dragged her right foot along Blue’s rump and jabbed her left foot into Blue’s side. Blue took a step or two forward and suddenly bolted. He ran through the open gate, up a small incline and under a metal roof extending along the front of a line of outdoor stalls. By this time, Carole had regained her seat on Blue; as Blue ran beneath the metal overhang, Carole hit her head on a post or beam. She was immediately thrown to the ground, suffering severe permanent injuries.

Carole and her parents sued Carbrey and Holden, alleging that Carbrey negligently allowed Carole to ride Blue, that he failed to properly instruct or supervise her, and that he failed to warn her about the open gate. They also alleged that Holden negligently failed to keep the gate closed, and that he failed to warn Carole of the low overhang.

Both Holden and an expert witness testified that Carole should not have been allowed to ride Blue. Another expert testified that the cause of the accident was Carbrey’s lack of instructions to, and lack of supervision of, Carole, and the failure to keep the arena gate closed.

No one could testify with certainty why Blue bolted. One expert testified that “any opinion as to what caused the horse to spook in this particular instance would be nothing short of speculation,” but that Carole’s improper dismount may have been the cause and that proper dismounting technique “should have been explained to her.” One of Blue’s trainers testified that Blue could have understood Carole’s improper dismount (i.e., dragging her foot across Blue’s rump) as a cue to start walking. Carbrey himself testified that Blue may have been frustrated by Carole’s improper riding and dismount. Carbrey admitted failing to warn Carole not to drag her heel as she dismounted.

Carbrey moved for summary judgment, claiming that he owed no duty to Carole, and that the accident was unforeseeable in light of Blue’s previously gentle nature. The trial court granted the motion without explanation. Holden then moved for summary judgment on similar grounds, and the trial court granted his motion as well, again without explanation. The Dolezals filed timely notices of appeal from both judgments, and the appeals were consolidated.

A negligence claim requires the plaintiff to prove (1) the existence of a legal duty obligating the defendant to adhere to a certain standard of conduct to protect others from unreasonable risks, (2) a breach of that duty, (3) a causal connection between the breach and injury, and (4) actual injuries or damages. Ontiveros v. Borak, 136 Ariz. 500, 504, 667 P.2d 200, 204 (1983), citing W. Prosser, Law of Torts § 30, at 143 (4th ed. 1971). The question whether a defendant owes a duty is one of law to be decided by the court. Markowitz v. Arizona Parks Bd., 146 Ariz. 352, 354, 706 P.2d 364, 366 (1985). Although summary judgment is not usually granted in negligence cases, it is appropriate when no dispute exists as to any material facts, only one inference can be drawn from those facts and, based upon those facts, the moving party is entitled to judgment as a matter of law. Nicoletti v. Westcor, Inc., 131 Ariz. 140, 142, 639 P.2d 330, 332 (1982).

Because we are presented with questions concerning the liability of two defendants, we address each defendant separately.

Frank Carbrey

Carbrey argues that he either owed no duty, or if he did, he did not breach it as a matter of law. He contends that his conduct was reasonable, and that Blue’s actions and Carole’s resulting accident were unforeseeable. He relies on testimony that Blue was gentle, predictable, and had never before suddenly bolted. The Dolezals argue that Carbrey owed a duty to Carole, and that reasonable minds could differ on whether the accident was foreseeable; therefore, a jury should be allowed to decide whether Carbrey was negligent.

The most logical approach to analyzing questions involving negligence is to begin with the first element: duty, which is decided by the court. Markowitz, 146 Ariz. at 356, 706 P.2d at 368. In discussing duty, the supreme court stated:

The question is whether the relationship of the parties was such that the defendant was under an obligation to use some care to avoid or prevent injury to the plaintiff. If the answer is no, the defendant is not liable even though he may have acted negligently in light of the foreseeable risks.

146 Ariz. at 356, 706 P.2d at 368. The supreme court has noted the confusion surrounding the concept of duty and the standard of conduct. See Markowitz; Coburn v. City of Tucson, 143 Ariz. 50, 691 P.2d 1078 (1984); Beach v. City of Phoenix, 136 Ariz. 601, 667 P.2d 1316 (1983). The following language from Prosser, cited in Co-bum, is helpful:

[T]he problems of “duty” are sufficiently complex without subdividing it ... to cover an endless series of details of conduct. It is better to reserve “duty” for the problem of the relation between individuals which imposes upon one a legal obligation for the benefit of the other, and to deal with particular conduct in terms of a legal standard of what is required to meet the obligation. In other words, “duty” is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty [if it exists] is always the same—to conform to the legal standard of reasonable conduct in the light of the apparent risk. What the defendant must do, or must not do, is a question of the standard of conduct required to satisfy the duty____

143 Ariz. at 52, 691 P.2d at 1080, quoting W. Prosser & W. Keeton, Law of Torts § 53, at 356 (5th ed. 1984). The Cobum court then stated:

Thus, the duty remains constant, while the conduct necessary to fulfill it varies with the circumstances. Beach v. City of Phoenix, supra. We see no benefit and considerable danger in attempting to analyze cases such as this in terms of whether the city did or did not have a duty to post stop signs, erect traffic control lights, remove bushes or give warning.

143 Ariz. at 52, 691 P.2d at 1080. The question here is whether Carbrey was under any obligation for the benefit of the plaintiff, Carole, and not whether Carbrey had a specific duty to ascertain her level of riding ability, teach her how to dismount, or supervise her riding or dismount. Carbrey’s attempt to break down the sequence of events that ultimately resulted in Carole’s injuries, in terms of whether he owed a duty at each stage in time, or whether his conduct met that duty, confuses duty and conduct. See Markowitz.

Arizona follows the Restatement of Torts § 518 (1938) (old § 518) in determining a person’s liability for harm caused by a domestic animal within that person’s control. See Vigue v. Noyes, 113 Ariz. 237, 550 P.2d 234 (1976). That section states in part:

[Ojne who possesses or harbors a domestic animal, which he does not have reason to know to be abnormally dangerous but which is likely to do harm unless controlled, is subject to liability for harm done by such animal if, but only if,

(a) he fails to exercise reasonable care to confine or otherwise control it, and

(b) the harm is of a sort which it is normal for animals of its class to do.

In applying this section, Arizona courts have required the owner or keeper of the animal “to know the normal habits and tendencies of animals of its class, realizing that even ordinarily gentle animals are likely to be dangerous under particular circumstances.” Vigue, 113 Ariz. at 240, 550 P.2d at 237; Safford Animal Hosp. v. Blain, 119 Ariz. 296, 298, 580 P.2d 757, 759 (App. 1978). Thus, Carbrey had a duty to exercise reasonable care to prevent such harm from occurring to Carole as could normally result from her riding Blue. Carbrey argues, however, that it was unforeseeable that Blue, a previously gentle, predictable horse, would unexpectedly bolt and cause Carole’s resulting injuries.

Confusion exists on how foreseeability fits into a negligence claim analysis. The supreme court in Markowitz did not directly address foreseeability because it was not at issue, other than to point out that “[t]he test for whether conduct is negligent is whether there is a foreseeable risk of injury from the conduct.” 146 Ariz. at 357, 706 P.2d at 369. This court, however, has stated:

[Tjhree aspects of foreseeability have developed in Arizona law: first, the determination by the court as a matter of law whether as a part of duty, the injury to the Plaintiff was foreseeable under the circumstances; second, ... where the Supreme Court held that foreseeability was a proper question for the jury on the issue of negligence; and third, where the court views foreseeability as an element of proximate or legal causation in intervening force—superseding cause situations____ There seems to be a conflict in these three positions.

City of Scottsdale v. Kokaska, 17 Ariz. App. 120, 125, 495 P.2d 1327, 1332 (1972).

Elaborating on how foreseeability fits into the “duty” analysis, we have stated:

In the first instance, the determination of whether the defendant owed to plaintiff any duty to use due care at all is always a question of law for the court____ This issue is to be presented to the jury, however, where there is a debatable question as to whether the injury to the plaintiff was within the foreseeable scope of the risk and whether the defendant was required to recognize the risk and take precautions against it.

Schnyder v. Empire Metals, Inc., 136 Ariz. 428, 431, 666 P.2d 528, 531 (App.1983); accord, Griffith v. Valley of the Sun Recovery & Adjustment Bureau, 126 Ariz. 227, 230, 613 P.2d 1283, 1286 (App.1980).

In Vigue, the owner of a horse named Whiskey let it run loose in an arena where other owners were typically present feeding, exercising, and cleaning their horses. Whiskey unexpectedly kicked a 4-year-old girl who was in the arena with her mother. Applying old § 518 to the facts of the case, the court concluded that sufficient evidence existed for the jury to find that the owner had failed to exercise reasonable control over Whiskey. It also concluded, however, that the plaintiff had failed to show that the harm that occurred—the little girl being kicked—was of a sort that is normal for horses to do, and that no evidence existed from which reasonable men could infer that “a horse such as Whiskey would normally become vicious in these circumstances toward other horses, young children or persons carrying feed.” Vigue, 113 Ariz. at 240-41, 550 P.2d at 237-38.

We interpret the second requirement of old § 518 as the foreseeability element in a negligence claim. Was it normal or foreseeable that a horse such as Blue might unexpectedly bolt? Assuming Blue was a show horse trained to respond to subtle cues, as we must in light of the conflicting evidence when reviewing summary judgment, undisputed testimony indicated that Carole’s legs were flapping during her ride and that she jabbed the horse with one foot and dragged her heel across the horse’s back when she attempted to dismount. Although no one has testified with certainty on what caused Blue to bolt, we can infer that he bolted in response to Carole’s improper riding technique and dismount. Reasonable minds could differ whether it is foreseeable that an otherwise gentle horse might bolt in reaction to out-of-the-ordinary cues. Taking this one step further, we also believe that reasonable minds could conclude that it is foreseeable that an inexperienced rider on a runaway horse could be harmed in some manner.

Section 518 has been amended. Restatement (Second) of Torts § 518 (1976) (new § 518) now provides:

Except for animal trespass [§§ 504 and 505], one who possesses or harbors a domestic animal [§ 506] that he does not know or have reason to know to be abnormally dangerous [§ 509], is subject to liability for harm done by the animal if, but only if,

(a) he intentionally causes the animal to do the harm, or

(b) he is negligent in failing to prevent the harm.

The Reporter’s Note to new § 518 merely states: “This Section has been changed by broadening it to include all liability for intent or negligence.” On its face, new § 518 eliminates the requirement that the harm done be such that is normal for animals of the same class to do, and is therefore more favorable to the plaintiff than was old § 518. However, neither party argues that we should apply new § 518 to the case before us; thus, we decline to decide whether new § 518 should be the law in Arizona. We note, however, that our decision in this case would be the same under new § 518 as it is under old § 518.

In dissent, Judge Grant argues that “[i]t is only the theoretical horses of the experts that adduce any showing of dangerousness,” and that she is “not persuaded by the experts’ testimony” regarding Blue’s training. Were we the trier of fact, we might agree. However, as we stated earlier, on review of this summary judgment we must view the facts and all inferences therefrom in the light most favorable to the appellants.

We also note that Judge Grant cites Schleier v. Alter, 159 Ariz. 397, 767 P.2d 1187 (App.1989), for the standard used in determining liability for injury by domestic animals. However, the standard used in Schleier (though not cited in the opinion) is Restatement (Second) of Torts § 509, “Harm Done by Abnormally Dangerous Domestic Animals.” The Dolezals do not argue that Blue is an abnormally dangerous animal; the proper standard is old § 518, “Liability for Harm Done by Domestic Animals Which Are Not Abnormally Dangerous.” (Emphasis added.) Carbrey’s lack of “knowledge of any special danger about which he should have warned Carole” does not relieve him of the duty to exercise reasonable care to control Blue. We cannot say, as a matter of law, that Carbrey fulfilled his duty.

In summary, Carbrey had a duty to exercise reasonable care to protect Carole from unreasonable risk of harm while she was riding Blue. In light of the conflicting evidence, questions whether Carbrey fulfilled his duty must be resolved by the trier of fact. This depends entirely on his conduct. It then becomes appropriate to consider such questions as whether, under the circumstances, Carbrey should have let an inexperienced rider such as Carole ride Blue, whether he sufficiently instructed her, and whether he sufficiently supervised her ride and dismount. Because these are fact questions with conflicting evidence, they must be resolved by the trier of fact. We simply cannot say as a matter of law that Carbrey’s conduct was reasonable, in light of the foreseeable risk and conflicting evidence. The summary judgment in Carbrey’s favor therefore must be reversed.

Forrest Holden

Any liability of Holden stems from his ownership of the premises on which Carole was injured. Restatement (Second) of Torts § 360 (1965) provides:

§ 360. Parts of Land Retained in Lessor’s Control Which Lessee is Entitled to Use

A possessor of land who leases a part thereof and retains in his own control any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sub-lessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor’s control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.

Section 360 has been followed in Arizona. See Forbes v. Romo, 123 Ariz. 548, 550, 601 P.2d 311, 313 (App.1979). Section 360 is applicable here because Holden leased the stalls in which Carbrey boarded his horses, and retained control over the riding arena and other portions of the facility provided for the common use of patrons of the facility-

Holden contends that, to establish his liability, Carole must show that he knew of the dangerous condition. Section 360, however, imposes liability if the lessor, exercising reasonable care, “could have discovered” the condition posing an unreasonable risk of harm. We cannot say as a matter of law that Holden could not have discovered the potentially dangerous conditions on the premises; thus, the issue is one for the finder of fact.

The parties disagree whether Carole was an invitee or a licensee. Under general Arizona law, a landowner’s duties and liabilities depend upon the status of the plaintiff. Shannon v. Butler Homes, Inc., 102 Ariz. 312, 428 P.2d 990 (1967); Robles v. Severyn, 19 Ariz.App. 61, 63, 504 P.2d 1284, 1286 (1973). However, under § 360, a plaintiff’s status is irrelevant. Comment c provides:

A lessor may be liable to an invitee or even to a licensee of the lessee, although neither he nor the lessee would be liable under the same circumstances to their own invitees or licensees. The privilege of the visitor is not based ... upon the consent given upon the occasion of the particular visit, but upon the fact that he is entitled to enter by the right of the lessee, who is entitled under his lease to use the part of the land within the control of the lessor not only for himself, but also for the purpose of receiving any persons whom he chooses to admit____ It follows that the lessor’s duty is not always satisfied by warning the lessee or others of the dangerous condition, and that the knowledge of such persons of the danger will not always prevent their recovery.

Holden admits that he retained control over the riding arena, and he presented no evidence that boarders at the stable were prohibited from bringing guests to the arena. Thus, § 360 imposed a duty on Holden to exercise reasonable care to discover conditions that posed an unreasonable risk of harm to Carole and to make such conditions safe. Whether Holden breached that duty is a genuine issue of material fact. Although the stables’ policy was that riding was permitted only in the arena area, reasonable minds could differ whether it was foreseeable that someone would ride a horse near the roof overhanging the outside stalls, either intentionally or as a result of a runaway horse, as in this case.

Holden presented no evidence that he could not have discovered the dangerous condition posed by the low roof and the gate. At the very least, the facts support an inference that Holden was aware of the risk of leaving the gate open and so posted the sign on it. Questions whether the sign on the gate fulfilled Holden’s duty, or whether he should have installed self-closing gates or warned Carole about the metal overhang all pertain to conduct, and are questions for the finder of fact. Absent evidence that these conditions could not have been made safe, summary judgment was improper.

Finally, we do not believe that A.R.S. § 33-1551, referred to in the dissent, has any application to this case. As the dissent notes, that section absolves a “premises” owner of liability for injuries caused by a “recreational user.” First, we do not believe that Holden’s stables fit within the intended meaning of “premises.” Second, we believe that Carbrey’s boarding fees constitute an “admission fee,” and thus Carbrey and Carole would not be “recreational users.”

Conclusion

Both summary judgments are reversed and this matter is remanded for trial.

GREER, J., concurs.