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Valente v. D.W. Burhoe Construction3/19/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Alfonso C. Valente appeals from a judgment in favor of defendant D. W. Burhoe Construction, Inc. in his personal injury action stemming from an accident while he was riding a horse at Hollywood Park racetrack. He contends the trial court erred in granting defendant's motion for summary judgment because defendant owed him a duty and breached it by operating a backhoe at a racetrack near a horse path. We agree with defendant's argument that it breached no duty to plaintiff and affirm.
FACTUAL AND PROCEDURAL HISTORY
Plaintiff was employed as an exercise rider for trainer Bob Frankel from January 2000 until August 2000. Six days a week he rode six to seven horses for Frankel between 5:00 a.m. and 10:30 a.m. at Hollywood Park Race Track. According to plaintiff, there were signs posted in the stables and barns prohibiting anyone other than veterinarians, blacksmiths, or security personnel from parking or operating motor vehicles. A security person positioned at Gate 7 to the park would prohibit the entry of unauthorized motor vehicles.
On August 3, 2000, plaintiff was preparing to exercise his third horse of the day on the training track at Hollywood Park. There was "lots" of building work being done at the track. There had been construction activity the day before, but it had not begun yet when he exercised his first horse that morning. Plaintiff was aware that there was a lot of construction equipment in the stable area. For several days before August 3, 2000, he had ridden horses past active construction work and some of the horses became jittery.
The third horse plaintiff rode on August 3 was very calm, and he had never had problems with it in the previous four or five times he had exercised it. When plaintiff rode toward the track on the third horse, he could hear the engine running on the construction equipment. Plaintiff saw a man sitting on a piece of construction equipment.
Suddenly, without warning, the arm of a 354-B Cat backhoe owned and operated by defendant moved in plaintiff's direction, causing the horse to rear and fall backwards on top of him. The backhoe was digging a trench for piping 10 to 15 meters from plaintiff's location. There is a dispute as to whether there was a screen or fence between plaintiff and the backhoe at the time of the accident.
On January 2, 2001, plaintiff filed an action for personal injuries against Churchill Downs California Company (erroneously sued as Hollywood Park) alleging negligence and dangerous conditions. Defendant Burhoe Construction was added by amendment to the complaint on the cause of action for negligence.
Defendant Burhoe moved for summary judgment on the ground it had no duty to plaintiff or that plaintiff had assumed the risk of falling as an inherent risk of riding. Defendant Burhoe relied on Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456 (Parsons), in which the Supreme Court held that the operator of a garbage truck had no duty of care to a nearby horse rider. (Id. at p. 461.)
Plaintiff opposed the motion for summary judgment on the ground that there were triable issues of material fact as to whether defendant owed a duty to him and breached that duty. He distinguished Parsons on the ground that Parsons involved "a casual horseback rider whose horse was frightened by a socially beneficial
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