TO THE COURT, AND TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
COMES NOW Defendant KRISTI NUNNINK to submit the following Memorandum of Points and Authorities in support of her Motion, made during the bench trial, for Dismissal of all causes of action by both defendants, pursuant to Code of Civil Procedure (“ CCP”) § 631.8, as follows.
MEMORANDUM OF POINTS AND AUTHORITIES
A. STATEMENT OF THE CASE
The trial testimony and documentary evidence, adduced by the plaintiffs, has shown that decedent Mia Eriksson, daughter of plaintiffs KARAN and STAN ERIKSSON, was an experienced horse rider, skilled in equestrian jumping and eventing competitions. She was intelligent, a stickler for knowing and obeying rules, and was charged with knowing and obeying the rules of eventing. Mia Eriksson also well knew the risks of serious injury or death inherent in eventing and horse-riding in general, having lost her elder sister, Shana Eriksson, to a horse-riding incident, in 2003. Her parents, plaintiffs, herein, also knew that the sport of eventing, and horse-riding in general, presented the ready dangers of death or serious injury, having lost their elder daughter, as described above. Both plaintiffs had seen and known of riders falling, while on horseback, resulting in serious injury or death, before November of 2006.
Plaintiff KARAN ERIKSSON and her daughter, decedent Mia Eriksson, signed an Entry form (Trial Exhibit 302), for Mia to compete in the 2006 International CCI ** Eventing competition at Galway Downs, evincing recognition of the dangers of eventing, and both signed a Release of Liability form (Trial Exhibit 303), in favor of defendant KRISTI NUNNINK, on May 21, 2006, holding defendant NUNNINK without liability, and agreeing not to sue said defendant, for any damage, including death, arising out of Mia Eriksson’s use of defendant’s “services” as coach or trainer, unless such damage were “caused by the direct, willful and wonton negligence of [KRISTI NUNNINK, Mia’s] Trainer.”
On November 4, 2006, Mia Eriksson was in the process of competing in the Galway Downs 3-Day Eventing meet, riding her own trained horse, Koreography, sometimes called “Kory,” when she attempted to jump fence #19 in the cross-country course, resulting in her horse striking the fence, somersaulting, and landing on decedent, tragically bringing about fatal injuries. Defendant KRISTI NUNNINK was merely the decedent’s coach or trainer, not a designer, supervisor, installer, or maintainer of the equestrian course in which decedent rode on that fateful day. Defendant never owned or medicated Kory. Defendant was not involved in running
the 2006 Galway Downs International Event. Defendant was not on the cross-country course, when decedent rode in that phase of the competition, and had no right or duty to try to stop decedent from continuing on that cross-country ride, once decedent began, according to testimonial evidence adduced at trial by plaintiffs’ own witnesses.
Because decedent was still a minor by several days, in order to allow Mia to compete, her mother, plaintiff KARAN ERIKSSON, was required to sign, and did sign, the Entry form (Exh. 302), authorizing her minor daughter to compete at 2006 Galway Downs, in which plaintiff KARAN ERIKSSON was listed as the parent/guardian of the minor competitor, as well as the “Trainer” of decedent. KRISTI NUNNINK’s name did not appear anywhere on that form, and she did not sign or enter it. KARAN ERIKSSON’s testimony established the Mia Eriksson entered that form. No communication with the governing bodies of eventing in general, viz., the United States Equestrian Federation (“USEF”), United States Eventing Association (“USEA”) or International Equestrian Federation (“FEI”), nor with the organizer or sponsor of the competition, viz., Del Mar Eventing, or any official involved in running that competition, was ever attempted by either plaintiff, to withdraw their requisite parental authorization for the minor competitor, Mia Eriksson, to compete at 2006 Galway Downs. No rule from any organization allowing the minor’s coach or trainer, if arguably deemed to be KRISTI NUNNINK, notwithstanding plaintiffs’ official designation of KARAN ERIKSSON as Mia Eriksson’s “Trainer” on the Entry form, to withdraw the minor rider from the competition without the express authorization of withdrawal by the minor’s parent or parents, was ever adduced at trial.
On May 6, 2008, plaintiffs filed their lawsuit, naming nine (9) individuals and entities as defendants, including the USEF, the USEA, and Del Mar Eventing, also naming KRISTI NUNNINK, as the sixth-named defendant, in the third cause of action, for negligence, and the seventh causes of action, for negligent infliction of emotional distress. Defendant NUNNINK successfully moved for summary judgment, based on express assumption of the risk, primary assumption of the risk, the open and obvious condition doctrine, Civil Code § 1714, BAJI 3.13 and the Hunter v. Mohawk and Leo v. Dunham case opinions cited below, and contending there was no evidence that defendant NUNNINK breached any imaginary duty to decedent, legally causing damage to plaintiffs, under CACI 400, 430, and 1620. The eight other defendants also successfully moved for summary judgment, on many of the same bases, also on their own release and waiver as set forth in the Entry form (Exh. 302) signed by Mia Eriksson and plaintiff KARAN ERIKSSON. Plaintiffs chose to appeal only the NUNNINK summary judgment. The Court of Appeal reversed, finding that there was a possibility that a jury could find “reckless” behavior by NUNNINK in purportedly trying to convince plaintiff KARAN ERIKSSON, decedent’s mother, not to withdraw her consent for Mia to ride at Galway Downs, when NUNNINK supposedly knew that Kory was injured from ten days earlier, at another event called Ram Tap, taking this case out of the ambit of the primary and express assumption of the risk doctrines at law, notwithstanding that both plaintiffs and their counsel stated, on the record, that each knew of no evidence that Kory was unfit before he began his 2006 Galway Downs ride. The Court of Appeals decision was set forth in a published opinion, which became law of the case, on its remittitur to the trial court.
2. PROCEDURAL HISTORY OF TRIAL
On January 9, 2012, the matter came on for trial, before the Honorable Craig G. Riemer, Judge, in Department 5. In pre-trial conference, Judge Riemer noted that defendant NUNNINK had timely posted jury fees, but that plaintiffs had not, effectively forfeiting their right to a jury determination. Defendant NUNNINK then waived her right to a jury trial, conferring the right and duty of determination of fact, accompanying the extant duty of ruling on the applicable law, to Judge Riemer.
Although four witnesses called by the defendant were presented, by stipulation between the parties, out of order, during plaintiffs’ case in chief, plaintiffs were allowed to call all their witnesses, and present all their evidence, in their case in chief, resting their case, on January 26, 2012, pending court rulings on the evidence presented. During those nine trial days, plaintiffs’ counsel cross-examined each of the four defense witnesses, adducing testimonial, and occasionally documentary, evidence from Robert Kellerhouse, the principal owner of Del Mar Eventing who ran the 2006 Galway Downs International Event, Wayne Quarles, the FEI Head Judge and President of the Ground Jury at the 2006 Galway Downs CCI** International Event and Dressage Judge during that competition, Dr. Karen Nyrop, DVM, the FEI Veterinary Delegate and Committee Member who supervised the in-barn inspection schedule and acted as the Veterinary Delegate who adjudged horse fitness at the “First Horse Inspection” at the Galway Downs International CCI** Event, under FEI regulations, and Jenette Robb, a riding student of KRISTI NUNNINK in 2006 and fellow eventing rider who participated in riding lessons from defendant along with Mia Eriksson at the horse-facility property then owned by the plaintiffs, called Tahoe Meadows.
Plaintiffs examined defendant KRISTI NUNNINK, expert veterinarian Dr. Elaine Carpenter, expert horse trainer David Johnson, plaintiff KARAN ERIKSSON, and plaintiff STAN ERIKSSON, all of whom were cross-examined by counsel for defendant NUNNINK, before resting their case in chief.
Defendant KRISTI NUNNINK now moves this court for Judgment, per CCP § 631.8.
B. SALIENT TRIAL TESTIMONY
The uncontroverted facts, adduced through trial testimony and exhibits, included the following.
1. Both plaintiffs and the decedent knowingly, intelligently, and voluntarily assumed the risks inherent in the sport of eventing, and the sporting and recreational activity of horse-riding in general, before Mia Eriksson rode in the 2006 Galway Downs cross-country.
2. Plaintiff KARAN ERIKSSON and decedent Mia Eriksson knowingly, intelligently, and voluntarily signed Exhibit 303, a waiver of liability and agreement not to sue KRISTI NUNNINK for any damage, including death, occurring to Mia Eriksson arising out of KRISTI NUNNINK’s services as her trainer.
3. The only connection between Mia Eriksson’s tragic accident at fence 19 and KRISTI NUNNINK was the paid consultation services provided by said defendant to Mia Eriksson pertaining to riding in 2006 Galway Downs, and advice provided to KARAN ERIKSSON pertaining thereto.
4. Defendant NUNNINK had nothing to do with the design, construction, installation, monitoring, testing, or use of the fences and obstacles positioned on the cross-country course at 2006 Galway Downs CCI** International Event.
5. Defendant NUNNNK had never owned, medicated, or boarded Kory, Mia’s chosen eventing horse, which was housed, medicated, and owned by KARAN ERIKSSON, STAN ERIKSSON, and Mia Eriksson.
6. Defendant KRISTI NUNNINK had no authority, under the law or any rule of any eventing or horse riding body, to enter or withdraw a minor rider like Mia Eriksson from the 2006 Galway Downs International Event.
7. Two practicing veterinarians, viz., Dr. Liz Bracken and Dr. Karen Nyrop, examined Kory between his fall at Ram Tap, on October 21, 2006 and his cross-country run at Galway Downs, on November 4, 2006, neither one finding any sign of lameness or perceived mental/neurological deficits, before Kory’s 2006 Galway cross-country run, both having had a professional obligation to note such a problem, if perceived.
8. Kory was observed, on November 2, 2006, by two FEI judges and an FEI Veterinary Delegate, who then had the duty, according to the FEI Rules, to eliminate any horse from the 2006 Galway Downs competition because of any perceived problem in lameness, conditioning, or for any other fitness-related reason, in the trotout “first horse inspection” per the FEI Articles, none of which then perceived any such problem, and all of whom “accepted” Kory as fit for the CCI** competition immediately upon their examination.
9. The only veterinarian, or person with the necessary medical foundation, that opined that Kory was lame or had neurological deficits between the day after his fall at 2006 Ram Tap and the day on which he ran the 2006 Galway Downs cross-country course, was Dr. Elaine Carpenter, in October of 2011, who never examined Kory, has never been certified by the FEI or USEF for any purpose, has never judged any eventing competition, and was monetarily engaged solely as an after-the-fact expert witness for one of the parties to the lawsuit, unlike Dr. Liz Bracken, Dr. Karen Nyrop, and Mr. Wayne Quarles, all of whom noted no lameness, on examination and/or inspection of Kory after his 2006 Ram Tap fall and before he ran the 2006 Galway cross-country, the latter two of whom were under an FEI obligation to eliminate Kory from the Galway event if such problem were noted or place Kory in a holding area for further investigation if he presented even a “doubtful case,” which was never done, as no judge or veterinarian noted any such potential problem.
10. No veterinarian ever opined that Kory would somehow be unfit to compete at the 2006 Galway Downs CCI** International Event, at any time before the cross-country phase of that competition.
11. Notwithstanding a written instruction from Dr. Liz Bracken to KARAN ERIKSSON and Mia Eriksson to “follow up” Dr. Bracken’s examinations with Kory’s regular veterinarian, plaintiffs never did so “follow up” at any time before 2006 Galway Downs.
12. KRISTI NUNNINK, on her own, called her own regular veterinarian, viz., Dr. Kris Purcell, for advice on Kory, after 2006 Ram Tap and before 2006 Galway Downs.
13. KARAN ERIKSSON, having heard KRISTI NUNNINK’s November 3, 2006 representations that Kory received a score of 50 in that day’s dressage test, and that Kory had been jumping all week and was “good to go,” still insisted that Mia would not be allowed to ride in the 2006 Galway Downs CCI** cross-country course, and so was not convinced by KRISTI NUNNINK to allow Mia to compete therein.
14. KRISTI NUNNINK made no representation of a dressage score or prior jumping fitness of Kory to plaintiff STAN ERIKSSON, at any time after Kory’s 2006 Ram Tap fall and before Kory’s 2006 Galway cross-country ride.
15. KARAN ERIKSSON, after speaking with KRISTI NUNNINK over the telephone on November 3, 2011, purchased a plane ticket, flew to Riverside County, and arrived at Galway Downs, purportedly to either stop Mia from competing in the cross-country there or to “discuss” the matter with KRISTI NUNNINK, yet never attempted to contact KRISTI NUNNINK that evening or the next morning, by cell phone, even though she had defendant’s cell phone number, and never spoke with her daughter, Mia Eriksson, that night, and never checked on Kory that night or the next morning.
16. KARAN ERIKSSON testified that she spoke with KRISTI NUNNINK on Saturday, after breakfast, at which time defendant told said plaintiff essentially the same thing that she had told said plaintiff on the day before that, over the telephone, i.e., that Kory had received a 50 dressage score, had been jumping well, and was “good to go.”
17. Plaintiff KARAN ERIKSSON testified that, on Saturday, November 4, 2006, after she confronted her daughter Mia, at which time her daughter exhorted KARAN ERIKSSON not to “cause a scene,” then decided to allow Mia Eriksson to ride Kory in the CCI** cross-country, to avoid causing a scene, which is what David Johnson testified as the reason that KARAN ERIKSSON allowed her daughter to ride in the cross-country, based on his conversations with KARAN ERIKSSON, as noted in his October 26, 2011 Declaration under oath (Exh. 326), as opinion “N” in that document.
18. KRISTI NUNNINK believed, in her extensive experience, having coached about 80 riders on about 100 horses, that Mia Eriksson and Kory, in November of 2006, were capable of safely competing in the 2006 Galway Downs CCI** International Event.
19. KRISTI NUNNINK had professional coaching obligations to about eight other riding students, beside Mia, at 2006 Galway Downs, and was herself riding two horses in that event, at a higher level than the CCI**, and thus could not be with Mia at all times.
20. KRISTI NUNNINK, at the 2006 Galway Downs competition, reminded Mia Eriksson that she did not have to compete in the CCI** cross-country, and specifically that she could ride in the CCI* cross-country, a less challenging course, if she preferred, which idea was rejected by Mia Eriksson.
21. KRISTI NUNNINK was acknowledged by KARAN ERIKSSON and STAN ERIKSSON to have been an excellent eventing coach, and that Mia considered defendant her “best” riding coach.
22. KRISTI NUNNINK perceived no physical impediment to Kory’s ability to safely compete in the 2006 Galway Downs CCI** International Eventing cross-country, at any time after Mia and Kory performed jumps at a schooling session at Ram Tap, on October 21, 2006, and when Mia and Kory began their cross-country ride, at Galway Downs, on November 4, 2006.
23. KRISTI NUNNINK loved Mia Eriksson, and would never have knowingly placed Mia in a position of danger, beyond the inherent dangers of the eventing sport, by encouraging Mia to perform in a competition, like the 2006 Galway Downs International CCI** Event, that KRISTI NUNNINK believed was too difficult for her or Kory, or for which Mia or Kory was perceived by KRISTI NUNNINK as physically unfit to safely negotiate.
24. Dr. Elaine Carpenter opined that what she perceived from slow-motion and freeze-frame DVDs lameness in Kory at the 2006 Galway Downs trot-out examination, and neurological deficits that she attributed to post-(Ram Tap) concussion symptoms, exhibited at 2006 Galway Downs, would have been very difficult
to perceive, at regular speed, without the benefit of DVD, after-the-fact, technology, including slow-motion, freeze-frame, and side-by-side comparisons with earlier Ram Tap footage.
25. Dr. Elaine Carpenter opined that a layperson could have perceived the lameness in Kory, at his 2006 Galway dressage test, at regular speed, while also testifying that lameness had nothing to do with Kory’s fall at fence 19, which was, according to Dr. Carpenter, due to the horse’s inability to correct for rider error in the attempted take-off spot, because of a reduction in the speed of the horse’s brain in processing the information from mental injury due to his 2006 Ram Tap concussion.
26. Dr. Elaine Carpenter acknowledged, in viewing the DVD of Kory’s 2006 Galway cross-country performance (Exh. 320) that Kory performed a majority of the jumps very well and athletically, on his 2006 Galway Downs cross-country ride, at which moments any mental deficits were not affecting him, because those deficits “come and go” and the effect “waxes and wanes,” showing up at some times and not at others.
27. Although plaintiffs’ expert trainer, David Johnson, had the 2006 Galway Downs DVD, showing Mia’s trot-out examination, dressage, and cross-country ride, in 2008, and was specifically asked by plaintiffs’ counsel, in April of 2007, to prepare a declaration for use in opposing the Motions for Summary Judgment of all defendants including KRISTI NUNNINK, and was encouraged, in writing by plaintiffs’ counsel, to opine that KRISTI NUNNINK had increased the risks inherent in the sport by pushing Mia up to a two-star event too fast or soon, Mr. Johnson’s declaration under oath, dated May 3, 2009 (Exh. 319), contained no mention of any
error, act, or omission by KRISTI NUNNINK that caused or contributed to Mia Eriksson’s fatal jump at fence 19, and Mr. Johnson testified at trial, consistent with Exhibit 319), that he fixed the “exclusive” cause of Mia’s accident as the fault of an “over zealous course designer and jumps which do not fall down.” It was not until
all eight other defendants were dismissed, that he altered his written declaration by preparing a new one, on October 26, 2011 (Exh. 326), affixing blame for Mia’s accident on KRISTI NUNNINK, including opining that Mia had violated the four-refusal rule of elimination, not having left the cross-country course immediately,
because she was probably following her coach’s advice, though he admitted that he had seen no evidence that suggested that KRISTI NUNNINK had ever advised Mia Eriksson to continue riding after she were eliminated.
28. STAN ERIKSSON, KARAN ERIKSSON, Dr. Elaine Carpenter, and David Johnson each testified that he or she noted four refusals by Mia Eriksson, by fence 17, on the 2006 Galway Downs cross-country course, from viewing the DVD and/or seeing Mia and Kory riding in person.
29. By Mia’s fourth refusal or run-out, at the 2006 Galway Downs CCI** cross-country, Mia Eriksson was eliminated from the FEI event, and was required by FEI rules to then immediately exit the course, and not allowed to ride on.
30. Mia Eriksson violated the FEI rules by continuing to ride after her fourth refusal on the 2006 Galway cross-country. If Mia had not violated those FEI rules, and had exited the course, she would not have died at Galway Downs that day.
31. KRISTI NUNNINK had neither the right nor the opportunity to stop Mia from continuing to ride the 2006 Galway cross-country course, after Mia’s fourth refusal.
32. KARAN ERIKSSON, after having seen Mia’s accident, on November 4, 2006, and after having in January 2007 discovered Mia’s dressage score sheet, showing that Mia did not receive a 50 dressage score, but received a 72.2 score, still retained KRISTI NUNNINK to run her riding instruction program at Tahoe Meadows, for over a month, before then stopping KRISTI NUNNINK from returning to that property.
33. STAN ERIKSSON testified that he does not personally know of anything that KRISTI NUNNINK could have done to save Mia’s life, on November 4, 2006, and did not blame KRISTI NUNNINK for Mia’s accident.
34. Mia Eriksson’s 72.2 score, a qualifying score for higher levels of future competition, in her first CCI** dressage, was consistent with her earlier dressage scores, including a 70 score in an April 2006 CCI* dressage, at Twin Rivers, before Kory hooked a stifle at September 2006 Twin Rivers and before Kory fell at October 2006 Ram Tap.
35. Both Dr. Elaine Carpenter and Mr. David Johnson admitted that he or she could not rule out that Kory was injured when scraping his abdomen on Fence 4 in the 2006 Galway Downs cross-country course, and that said injury caused or contributed to his botched jump at fence 19, resulting in Mia’s death.
36. Mia was required by the eventing rules to keep track of how many refusals or run-outs she had on her cross-country run.
37. Dr. Liz Bracken had performed what she described as two “complete” muscolo-skeletal and neurological examinations on Kory, on October 21 and 22, 2006, and that Kory was noted as “normal” in both areas, as of October 22, 2006.
38. David Johnson admitted that the standard of care of an eventing coach, which he has never been, would include relying on the opinions of qualified veterinarians that performed examinations on a subject horse, like Kory.
39. At no time during the two weeks after Kory fell at 206 Ram Tap, including up to and during Kory’s cross-country run at 2006 Galway Downs, did Mia ever complain about Kory not looking or feeling all right.
40. Mia Eriksson never attempted to withdraw from the 2006 CCI**Galway Downs International Event or stop riding.
In addition to the above uncontroverted facts, established through testimony and exhibits adduced during plaintiffs’ examination of witnesses, and defendant’s cross-examination thereof, the following factors involving the credibility of witnesses should be considered by the court:
1. KRISTI NUNNINK’s testimony on material facts was consistent with all documentation and common sense.
2. KARAN ERIKSSON’s testimony on material facts was conveniently clear on points favorable to her case, and cloudy on points adverse to her case. KARAN’s testimony was circuitous on subjects such as allowing Mia to go and be with friends, mutating to allowing her to trailer Kory to Galway to “tack walk” him, mutating later to allowing Mia to perform only the dressage, to then allowing Mia to ride n the cross-country. (It was circuitous and nonsensical that KARAN spoke with KRISTI NUNNINK at 12:45 PM, necessarily over two hours before Mia performed the dressage test, at which time KRISTI supposedly told KARAN that Mia received a 50 score, which KARAN would logically have known to have been untrue by simply asking Mia, who would have known, minutes after her dressage, exactly what her score was, as well as STAN ERIKSSON, who was there with Mia and would logically have listened for the score, which score KARAN could also have found out by simply checking where it was posted, going on-line, asking an event official, or inquiring of Mia, who would surely have been very curious to know what she had scored. It is nonsensical to think that Mia, riding in her first two-star dressage, hoping to obtain a qualifying score, would have ignored the announcement of her score, would not have checked the posting, and would not have discussed the fact that she obtained a qualifying score with her friends and parents, shortly thereafter, especially in preparing for the cross-country.
KARAN then supposedly takes a flight, to stop Mia from competing, instead of simply telling STAN to withdraw event authority or making a simple phone call, herself, but on arrival, never checks on Kory, never speaks with Mia, never even attempts to speak with KRISTI NUNNINK, and goes to dinner with Lauren Brooke’s parents, for two hours, never once discussing whether either of their daughters received a qualifying score in that day’s dressage test. It is far more likely that KARAN remained in norther California, as she stated, to have cosmetic work done on her face, then caught a flight to Riverside County when she saw that her face
was presentable enough, in order to watch her daughter perform in her first two-star dressage, having heard that Mia obtained a qualifying score of 72.2 in the dressage, whuch is why she never spoke with KRISTI or Mia, that evening, did not wake Mia up that night, did not check on Kory, did not request that a vet check Kory, did not call KRISTI on Saturday morning or Friday night, did not wake up early enough on Saturday morning to talk things over with Mia, and did not even speak with Mia until late in that morning. Then, at Mia’s request, KARAN ERIKSSON supposedly allows Mia to compete, to avoid creating a scene, admittedly not because of anything KRISTI NUNNINK said or did not say to KARAN ERIKSSON. This is only one of many examples of how KARAN ERIKSSON testified in contradistinction to what common sense and the other evidence strongly suggests. Why would KARAN have allowed Mia to trailer Kory down to Galway Downs, for nine hours, if she really was concerned that Kory was not up to the two-star event, just to “tack walk” him? Go would allow her daughter to trailer an eventing horse whose “season is over” for nine hours just to do a dressage penalty test? The purpose of that test is to get past it, to do the cross-country and show jumping, hopefully obtaining qualifying scores for future competitions.)
3. STAN ERIKSSON had no testimony that favored the plaintiffs’ liability case, except for the representation that Mia rode in her dressage test, at 2006 Galway, at about 11:30 AM, which directly contradicts the testimony of disinterested witness Robert Kellerhouse, who testified that Mia’s dressage necessarily started at about 3 PM, based on the consecutive order of competitor numbers. That testimony was offered to try to keep KARAN ERIKSSON’s prevarication about KRISTI NUNNINK informing KARAN that Mia had received a 50 score in the dressage, on November 3, 2006, at 12:45 PM, over two hours before Mia actually performed that dressage.
4. David Johnson’s testimony as not believable, and was convenient in its omissions and references to foundational materials that were either not fully described by source and date or admittedly had nothing to do with Mia’s accident, such as rulebooks from the USEF (FEI rules, not USEF rues, were used at 2006 Galway),
rulebooks and other references dating from 2004, 2008, and other dates that were inapplicable to the 2006 Galway Downs International Event. Over a year after he had received and viewed the DVD of Mia’s 2006 Galway Downs performance, he still had not formed the opinion that Kory was lame in that trot-out, dressage, or cross-country, and blamed the course designer and jump construction, not the coach or trainer, “exclusively” for Mia’s accident, despite plaintiffs’ attorneys having requested a declaration from him that also blamed KRISTI NUNNINK.
5. Dr. Elaine Carpenter, an Arizona veterinarian that had not even seen an event since 1987, was not FEI or USEF certified in anything, had never examined Kory, was not aware that dressage judges are expected to also evaluate the horse for lameness and fitness, and who had never seen the Complaint and was not aware that plaintiffs, through their attorneys, had blamed Mia’s accident on eight other defendants, could not account for the fact that Kory’s dressage score at 2006 Galway was consistent with, and actually better than, most of his dressage scores during that year, including in events at which he had no sign of any injury. She explained that Kory had lameness, at Galway, which was disputed, in detailed fashion, by two witnesses, Wayne Quarles and Dr. Karen Nyrop (as well as by the veterinary report of Dr, Liz Bracken), both of whom had actually inspected Kory, who had an obligation to eliminate Kory from the Galway competition of he were noted to have lameness or otherwise show unfitness, and who were not simply paid witnesses by one of the parties. Ultimately, when confronted with the DVD showing that Kory jumped very well, when not induced to confusion by Mia during the cross-country, Dr. Carpenter accounted for the difference by stating, unbelievably, that neurological problems like this “come and go” and that such a symptom “waxes and wanes.” She also gave the absurd opinion that the brain of this horse could send a neurological signal telling the rear legs of the animal to halt, while telling the front legs of the animal to jump forward. Common sense and elementary understanding of synapse firing and thought generation reveal that opinion to be ludicrous. Dr. Carpenter’s opinion had never before been sought in a litigation matter, except when her own colleague was accused of malpractice. Dr. Karen Nyrop, a 31-year veteran of equine veterinary medicine practice that had lived in Arizona, had never heard of Dr. Carpenter.
On balance, that testimony offered by plaintiffs’ witnesses, in their case in chief, were not credible on
the salient legal points, which are discussed below.
KRISTI NUNNINK did not design that challenging course. She did not participate in the installation of the course obstacles. She was not even consulted on any aspect of the course obstacles, space between them, or juxtaposition of devices and obstacles. Defendant NUNNINK was not called upon to act as an official at the
meet, and the cross-country course in particular, to judge the competitors, to maintain the rules or protocols of the event, or to change any aspect of the eventing competition. In fact, KRISTI NUNNINK was not even allowed to have any contact or communication with the rider, her own student, once that student began the
cross-country. KRISTI NUNNINK was not a vet, had no medical or veterinary training or education, and was not called upon to assess the health status of any horse in the competition. Defendant NUNNINK did not own Kory. Plaintiffs and their daughter did. KRISTI NUNNINK did not transport Kory to Galway Downs. Mia Eriksson did. KRISTI NUNNINK did not medicate Kory. KARAN ERIKSSON admittedly did. KRISTI NUNNINK did not form or enforce the rules of the competition. The FEI,
USEF, and USEA did. KRISTI NUNNINK was not charged with fetching Mia, or escorting her off the course, when she had missed her fourth jump and was eliminated. KRISTI NUNNINK did not have the legal or FEIauthority to consent to the minor, Mia Eriksson, riding in the 2006 Galway Downs event. STAN and KARAN
ERIKSSON did, and granted that consent, in writing.
It is clear that Kory was not injured before he began the cross-country course. Thus, missing the Fence 19 jump occurred because of some other reason, not a pre-cross-country run injury. Even assuming there was any such imaginary injury to Kory that were somehow proven to have caused Kory to botch the Fence 19 jump,
KRISTI NUNNINK had no way of noticing any such supposed injury, which had passed the scrutiny of two vets [charged with noting that type of injury or instability], KARAN and STAN ERIKSSON, all FEI, USEA, and USEF course officials and judges, including from the dressage, all other friends and observers, themselves experienced horse-riders and -owners, and Mia Eriksson herself, who was the owner and rider of that specific horse. Even after Kory had failed on four jumps, Mia decided to ride and jump further, ignoring the warning signs that she and Kory were not up to it that day, that one or both of them were having a bad day, risking her own life and tragically losing it by that risk.
Equestrian competition, especially involving participation by riders experienced with their horses of choice and such competition courses, is a vigorous sports event, often televised. Equestrian riding comprises an international sports event in the summer Olympic Games, every four years, and the Pan Am Games. It is not
uncommon for a rider to fall, or for her horse to falter, leading to injury and even death, a risk which the participants understand and volunteer to undertake, including in written form, by express waivers of liability to assume such risks. Several other riders had died within a year of Mia’s death, in eventing falls. Because
decedent was barely a minor, her mother, a plaintiff herein, signed such an express waiver of liability and assumption of the risk of such injury or death, as did decedent herself, in favor of defendant NUNNINK. Plaintiffs knew that risk better than anyone, having tragically lost their elder daughter, Shana, to a horse- riding
accident in 2003.
There is no evidence that KRISTI NUNNINK evinced even simple negligence, much less the “recklessness” or “direct, willful and wanton negligence” that the Court of Appeal determined would have to be shown to take this case out of the ambit of the primary and express assumption of the risk doctrines, both of which operate to negate the duty element in negligence and bar lawsuits like this.
Decedent exercised her own judgment in jumping course fences that she fully viewed beforehand, primarily assuming the risk of that vigorous and dangerous sport, especially after she was eliminated and required to exit the course. Decedent’s mother, on behalf of the minor decedent, expressly waived any right to recover for any accident, such as the instant one, expressly assuming the risks thereof. The conditions that plaintiffs blame for decedent’s death were as open and obvious as they could be, especially to an experienced competitive rider, and decedent actually walked that same course, and warmed up on the same horse, before the competition. NUNNINK was merely the trainer, not the event sponsor, installer, supervisor, qualifier, inspector, designer, or maintainer, and so had no duty regarding the course conditions. There is and can be no evidence that KRISTI NUNNINK breached some duty regarding her training of the decedent, legally causing decedent’s demise.
In order to be liable for negligence, a necessary element also in negligent infliction of emotional distress, said defendant had to have breached an owed duty to a foreseeable plaintiff, legally causing injury thereto. BAJI 3.00, 3.10, 3.76; CACI 400, 430, 1620. There is no law or fact that shows that defendant NUNNINK had any duty to decedent, who went out on her own, in an open and obvious condition, primarily and expressly assuming all risks thereof, in an area of known potential danger, with her own chosen horse, in violation of her own duty for her own safety. Even if there were some imaginary duty, ignoring the “open and obvious” condition doctrine, primary assumption of the risk, and express assumption of the risk appellate decisions to the contrary, defendant NUNNINK certainly never breached that duty, since she had no obligation, and took no action, concerning the course or gates that decedent knowingly and voluntarily attempted to negotiate to her tragic end. KRISTI NUNNINK never noted any injury to Kory, nor did anyone else, including professional vets, plaintiffs, and Mia Eriksson herself.
Perhaps more pointedly, even if there were some negligence by KRISTI NUNNINK, which appears contrary to even the facts adduced by the plaintiffs’ witnesses (KRISTI’s perception of the fitness of Kory paralleled the observations of all percipient professionals that observed Kory, including two vets), there certainly can have been no negligence that would rise to the recognized level of recklessness or “wanton and willful” negligence. Neither was there any “direct negligence” by KRISTI NUNNINK, legally causing Mia’s terrible accident. KRISTI NUNNINK did not ride, medicate, direct, or obstruct Kory, while he rode on the Galway cross-country. Any representation purportedly made to the mother of the minor rider is not recognized by any law as “direct” negligence.
According to the plaintiffs’ own Complaint allegations, they cannot carry their burdens of proving duty, breach, or causation, against KRISTI NUNNICK, and their action against said defendant is barred. There is a marked absence of any affirmative facts showing: (1) NUNNINK violated any duty to decedent, legally causing
her death; (2) NUNNINK owed any duty to decedent; (3) Decedent herself was not legally responsible for her own accident and death, under the primary assumption of the risk and “open and obvious condition” doctrines, which operate to bar plaintiffs’ recovery herein; and (4) Plaintiffs, through their decedent and stepping into her shoes, did not voluntarily and expressly waive any potential recovery from this incident by the written express assumption of the risk, assumed by decedent herself, as well as independently by KARAN ERIKSSON. This Court is not instituted to entertain every imaginable theory of liability when factually unsupported, in the face of a Motion for Judgment at trial, especially when the facts discovered point to the legal insufficiency of plaintiffs’ theory of recovery. There have been no facts to allow this Court to even liberally infer the elements necessary to recover against defendant NUNNINK. In addition, there is no law which wouldallow plaintiffs to recover, under a negligence theory or any other, as against said defendant, based upon plaintiffs’ own Complaint language, in concert with the well-documented facts adduced at trial. For these reasons, a Judgment for defendant is proper and should be granted.
1. DEFENDANT’S MOTION FOR JUDGMENT IS TIMELY MADE.
CCP § 631.8(a) states, in its first two sentences:
“After a party has completed his presentation of evidence in a trial by the court, the other party,
without waiving his right to offer evidence in support of his defense or in rebuttal in the event the
motion is not granted, may move for a judgment. The court as trier of the facts shall weigh the
evidence and may render a judgment in favor of the moving party, in which case the court shall
make a statement of decision as provided in Sections 632 and 634, or may decline to render any
judgment until the close of all the evidence.”
In the instant case, plaintiffs rested their case, on January 26, 2012, “complet[ing their] presentation of evidence” in this bench trial. The “other party” is defendant KRISTI NUNNINK, who hereby moves this court for judgment, pursuant to this statute.
2. DEFENDANT NUNNINK CANNOT BE HELD LIABLE IN NEGLIGENCE BECAUSE SHE OWED NO DUTY TO DECEDENT.