# Parsons v. Crown Disposal Co.

> California Supreme Court · May 8, 1997 · 15 Cal. 4th 456

URL: https://www.frixlaw.com/law-library/cases/9568530

## Case

- **Full name:** DARRELL PARSONS, Plaintiff and Appellant, v. CROWN DISPOSAL COMPANY, Defendant and Respondent
- **Court:** California Supreme Court
- **Decided:** May 8, 1997
- **Citations:** 15 Cal. 4th 456; 97 Daily Journal DAR 5921; 63 Cal. Rptr. 2d 291; 936 P.2d 70; 97 Cal. Daily Op. Serv. 3423; 1997 Cal. LEXIS 2304
- **Precedential status:** Published
- **Opinion:** Concurrence by Werdegar
- **Judges:** George, Werdegar, Mosk, Kennard
- **Cited by:** 153 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

WERDEGAR, J., Concurring.
I agree with the majority the trial court properly entered summary judgment for defendant and, accordingly, we must reverse the judgment of the Court of Appeal.
As the majority correctly observes, “neither Knight [v. Jewett (1992) 3 Cal.4th 296 ( 11 Cal.Rptr.2d 2 , 834 P.2d 696 )] nor its progeny established a broad, expansive duty on the part of defendant to avoid increasing the risk of harm to plaintiff over that inherent in the recreational activity of horseback riding.” (Maj. opn., ante, at p. 461.) I agree “Knight did not purport to establish the parameters of the duty of care owed by all potential defendants to persons who happen to be engaged in a sport or activity at the time they sustain an injury.” (Ibid.) I also agree defendant breached no “special or expanded legislatively imposed duty of care.” (Id. at p. 484, italics in original.)
I write separately only to express my view that in this case we neither need nor ought to recognize an exception to the general principle that “a *486 person is liable for injuries caused by his failure to exercise reasonable care in the circumstances” (Rowland v. Christian (1968) 69 Cal.2d 108, 112 [ 70 Cal.Rptr. 97 , 443 P.2d 561 , 32 A.L.R.3d 496 ]).
Marshaling an impressive array of (albeit mostly older and foreign) horse-and-machine cases, the majority demonstrates that courts frequently have held particular machine operators to be not liable in cases wherein it was alleged they tortiously injured horses and riders. (See maj. opn., ante, at pp. 465-471.) These cases do not, however, demonstrate the existence of any special “common law rule of nonliability” (id. at p. 472, fn. 15) that would shield machine operators from ordinary tort responsibility when they frighten horses by carelessly operating their machines. Neither do they stand for the broad proposition that, “as a matter of policy, there shall be no liability for fright to a horse and consequent damages arising therefrom when ... a socially beneficial machine . . . properly was used in the manner for which it was designed” (id. at p. 474), insofar as such proposition may be understood as providing a blanket exemption from the usual rules governing negligence liability. Rather, with respect to duty, the cases stand only for the proposition that due care—the duty “to exercise reasonable care in the circumstances” (Rowland v. Christian, supra, 69 Cal.2d at p. 112 )— does not always require a machine operator to stop or pause in the operation of the machine when a horse is present.
Nor am I persuaded there ought to exist a special “rule of nonliability” that would categorically shield all machine operators from ordinary tort responsibility when they frighten horses by carelessly operating their machines. (See maj. opn., ante, at pp. 472-477.) “[I]t is clear that in the absence of statutory provision ... no such exception should be made unless clearly supported by public policy.” (Rowland v. Christian, supra, 69 Cal.2d at p. 112 .) In light of past practice and what the majority concedes is a diminished equestrian presence in modem California, I think it unlikely that our continuing to apply ordinary negligence principles when injured horseback riders sue machine operators for carelessly spooking their horses will have “detrimental consequences stifling to the community.” (Maj. opn., ante, at p. 475.)
Thus, in my view, defendant owed plaintiff the duty of exercising due care in the circumstances. Nevertheless, in the circumstances of this case, I conclude summary judgment was properly entered, as no triable issue exists as to whether defendant breached that duty.
As the majority points out, the record contains no evidence that defendant’s driver saw (or reasonably could have seen) plaintiff until after plaintiff *487 was thrown and injured. (Maj. opn., ante, at p. 463.) Plaintiff asserts he made eye contact with the driver, but, as the majority correctly observes, plaintiff’s unsupported assertion in his papers opposing summary judgment is not evidence. (Id. at p. 463, fn. 2.) I agree with the majority that for a fact finder to conclude defendant’s driver saw plaintiff because (as plaintiff testified at his deposition) plaintiff saw the driver in the garbage truck’s side view mirror would, in the absence of any evidence the driver even looked in that mirror, be “conjectural.” (Id. at p. 477, fn. 23.) On this record, any conclusion defendant’s driver breached a duty of due care owed to observed (or reasonably observable) horseback riders would be insupportable; defendant, accordingly, is entitled to summary judgment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9568530. Public record. Not legal advice.