# Parsons v. Crown Disposal Co.

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

URL: https://www.frixlaw.com/law-library/cases/9568531

## 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:** Dissent by Mosk
- **Judges:** George, Werdegar, Mosk, Kennard
- **Cited by:** 153 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

MOSK, J.
I dissent.
Although the Court of Appeal resolved this matter under the doctrine of assumption of risk, I agree with the majority that the doctrine is inapplicable here. “[T]he doctrine of assumption of risk properly bars a plaintiff’s claim only when it can be established that, because of the nature of the activity involved and the parties’ relationship to the activity, the defendant owed the plaintiff no duty of care.” (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 538 [ 34 Cal.Rptr.2d 630 , 882 P.2d 347 ].)
Instead, this matter raises the following questions. Did defendant Crown Disposal Company (Crown), which operated a garbage truck next to a bridle path, owe a duty of care to Darrell Parsons (Parsons), a horseback rider traveling on the path? If so, did Crown breach its duty? Unlike the majority, I conclude that the answer to the first question is yes. Crown owed a duty of ordinary care to Parsons to prevent injury as a result of its conduct. The answer to the second question—whether that duty was breached—involves disputed facts that must be resolved by the trier of fact. Accordingly, I would affirm the judgment of the Court of Appeal, reversing the superior court’s summary judgment in favor of Crown.
I.
The undisputed facts in this case, as stipulated by Parsons and Crown, are as follows.
On December 2, 1991, at approximately 10:00 a.m., Parsons was riding his horse on the public bridle path next to the Los Angeles Equestrian Center located in or around Burbank. The path runs alongside the back of a restaurant. At about the same time, the driver of a garbage truck owned by Crown was in the process of emptying a trash bin behind the restaurant by *488 lifting it with a pair of mechanical forks over the top of the vehicle as it stood stationary. At that time, something frightened Parsons’s horse, causing it to throw him to the ground. Both Crown’s driver and Parsons were aware that horses are susceptible to scaring. Moreover, Crown’s driver had been aware throughout his employment with Crown that the restaurant abuts a bridle path frequently used by horses and their riders.
Parsons and Crown did not agree that any other facts were undisputed. Indeed, they expressly disputed whether Crown’s driver saw Parsons on the horse when it became frightened. Thus, Parsons’s evidence was to the effect that he and Crown’s driver “made eye contact with each other as [his] horse began to spin and bolt.” By contrast, Crown asserted that its driver “saw” Parsons “the first time . . . when he was already on the ground.” 1
Crown moved for summary judgment. It claimed that, under the undisputed facts, it owed no duty of care to Parsons as a matter of “public policy,” arguing that “the utility of trash collection is an important policy consideration that deserves more weight than the prevention of bodily injury to a person engaged in a sporting event.” It also claimed that it owed no duty of care to Parsons under the doctrine of “primary assumption of risk,” arguing that his injuries were an inherent risk of the sport of horseback riding. 2
The superior court granted summary judgment to Crown. The Court of Appeal reversed, concluding that Crown owed a duty of care not to increase the risks to a horseback rider over and above those inherent in the activity, and that the facts presented on summary judgment showed at best a triable issue of fact whether the duty was breached. We granted review.
*489 II.
Under our tort law, as a general rule, “ ‘[a]ll persons are required to use ordinary care to prevent others being injured as the result of their conduct.’ ” (Rowland v. Christian (1968) 69 Cal.2d 108, 112 [ 70 Cal.Rptr. 97 , 443 P.2d 561 , 32 A.L.R.3d 496 ].) In addition, the common law rule, as stated in the Restatement Second of Torts, is that “[a]n act is negligent if the actor . . . realizes or should realize that it is likely to affect ... the conduct of another, a third person, or an animal in such a manner as to create an unreasonable risk of harm to the other.” (Rest.2d Torts, § 303, p. 94.) 3
We have never recognized a “social utility” exception to the traditional duty of ordinary care for defendants operating vehicles or other “socially beneficial” machinery around horses.
The majority purport to rely on a “long-standing line of authority” that “establishes” such an exception. (Maj. opn., ante, at p. 461.) Their reliance is misplaced.
Almost all of the dozens of cases cited by the majority are not controlling precedents. They are from out of state. The few California cases cited are to the contrary. Hahn v. S. P. R. R. Co. (1877) 51 Cal. 605 upheld a jury verdict that the operator of the defendant’s locomotive acted negligently by blowing off steam when the plaintiff’s horses were “opposite,” causing them to run away and throw the plaintiff from his wagon. Although Hahn stated that the plaintiff could not have recovered if the blowing off of the steam “was necessary in the prudent management of the engine,” it did not cite to any authority for, or purport to articulate, a “social utility” exception to the traditional duty of ordinary care. (Id. at p. 607.) What conduct would be “necessary in the prudent management of the engine” would, under Hahn , depend on the particular facts. Eddy v. Stowe (1919) 43 Cal.App. 789, 795 [ 185 P. 1024 ] held that when the defendant driver had knowledge that the plaintiff’s horse was frightened, it was his duty to keep a lookout ahead and “slow up, stop his machine, or do whatever was reasonably required to relieve [the horseman] of his perilous position.” It stressed that the question *490 whether the duty of ordinary care is breached in any particular case depends on the peculiar circumstances: “ ‘What would be ordinary care in one case might be negligence in another. But, whatever the condition or situation, the driver of the automobile must, at all times and in all places, observe ordinary care to avoid injury to persons or travelers on the highway.’ ” (Id. at p. 797.) Nor did Johnson v. City of Santa Monica (1937) 8 Cal.2d 473 [ 66 P.2d 433 ] consider or apply an exception to the traditional duty of ordinary care based on “social utility.” In Johnson , the defendant was not even alleged to have frightened a horse. Rather, the rider had already lost control of her horse when it galloped into an intersection on a road and “ran head on into the cab of the city truck, catapulting [her] on to the ground on the opposite side of the truck.” (Id. at p. 474.) The defendant, on entering the intersection and seeing the horse, “immediately turned to the right and put on the brakes.” (Ibid.) Johnson determined that on the facts presented—as to which “there [was] no substantial dispute” (id. at p. 475)—there was no evidence of negligence by the driver. The holding of nonliability was not based on any “social utility” exception to the traditional duty of ordinary care, but on the fact that the driver, who encountered a horse that was already “unmanageable and apparently locoed” before it encountered the truck “acted at once and clearly in a manner to meet all obligation cast upon him by law.” (Ibid.)
In any event, the majority’s “authority” is overwhelmingly from the turn of the century, a time when horses were ubiquitous and the collision of horses and “socially beneficial” machinery—such as locomotives, trolleys and “horseless carriages”—was routine and unavoidable. The rule they purport to extrapolate from these hoary “precedents”—i.e., that the operator of a “socially beneficial” machine owed no duty to a horseback rider unless it used the machine in a careless or malicious manner, or failed to take reasonable protective actions after it knew a horse had actually become frightened (maj. opn., ante, at pp. 469-470)—is anachronistic.
To the extent a “social utility” exception to the traditional duty of ordinary care could once be rationalized as a matter of public policy—in order to avoid the otherwise inevitably high cost of litigating innumerable accidents involving horses and “socially beneficial" machinery—it can no longer. The rationale for creating such an exception to the duty of ordinary care around horses has vanished along with the horses, now a rarity on our public throughways. The majority have it exactly backwards when they urge that “given the declining relative importance of horses in contemporary society, [Crown’s] position has strengthened.” (Maj. opn., ante, at p. 474.) Its position has lost its support.
Under majority’s new “social utility” exception, the operator of a “socially beneficial” machine around horseback riders is required to take “reasonable *491 protective actions” only if the horse “actually has become frightened” by the operation of the machine. (Maj. opn., ante, at p. 470.) I see no reason to adopt such a rule.
The majority purport to justify their “social utility” exception by applying the factors we identified in Rowland v. Christian . Those factors include: (1) the foreseeability of harm to the plaintiff; (2) the degree of certainty that the plaintiff suffered injury; (3) the closeness of the connection between the defendant’s conduct and the injury suffered; (4) the moral blame attached to the defendant’s conduct; (5) the policy of preventing future harm and the extent of the burden to the defendant; (6) the consequences to the community of imposing a duty to exercise care; and (7) the availability and cost of insurance for the risk. (Rowland v. Christian, supra, 69 Cal.2d at p. 113.)
The majority concede that the first Rowland factor (foreseeability) and the last (availability of insurance) weigh against creating an exception to the duty of ordinary care for “socially beneficial” machinery. Indeed, even the parties agreed that the injury was foreseeable and that insurance was available for such accidents. But the majority determine that the sixth factor (consequences to the community) is overriding. Thus, they conclude, as a matter of “social utility,” that the societal price of efficient garbage collection includes occasional uncompensated injury to horseback riders.
As applied to this matter, the majority’s “social utility” exception means that, as a matter of law, Crown did not owe any duty to avoid lifting and noisily shaking a large debris bin up and down—even if he actually saw a horse approach—so long as it “properly used [its truck] in the manner for which it was designed.” (Maj. opn., ante, at p. 474). It was obligated to take “reasonable protective actions” only if it knew that the horse had actually become frightened. (Id. at p. 477.)
I see no sound basis for the majority’s new “social utility” exception. In my view, all of the Rowland factors weigh against such an exception to the traditional duty of ordinary care—which simply requires that the operator of a vehicle or machine act reasonably under the circumstances to avoid injury to a person or animal.
Specifically, as to the sixth Rowland factor (the consequences to the community), I believe that Vehicle Code section 21759, which codifies the traditional duty of ordinary care, is a better indicator of contemporary public policy with regard to the duty of ordinary care around horses than the antiquated case law cited by the majority. It provides, in relevant part: “The driver of any vehicle approaching any horse drawn vehicle [or] any ridden *492 animal . . . shall exercise proper control of his vehicle and shall reduce speed or stop as may appear necessary or as may be signalled or otherwise requested by any person driving, riding or in charge of the animal ... in order to avoid frightening and to safeguard the animal. . . and to insure the safety of any person driving or riding the animal . . . .” {Ibid.)
By analogy, I conclude that public policy dictates, in accord with the traditional duty of ordinary care, that if the operator of a “socially beneficial” machine (such as a garbage truck) actually sees—or reasonably should see—a horseback rider approaching, he is obligated to stop as necessary, or as signaled by the rider, to avoid frightening the animal and injuring the rider. It would be a question for the trier of fact whether it was reasonably necessary to operate the big, noisy machine for the few seconds it would take to let a horse go by.
The majority warn that, under the traditional duty of ordinary care, “all manner of actors”—including operators of leaf blowers, chain saws, and other “loud power tools" (maj. opn., ante, at p. 475)—would be subject to “potential liability, with obvious and detrimental consequences stifling to the community” {ibid.). Even assuming the “social utility” of leaf blowers and other machinery, liability for injury to a horseback rider would depend on the peculiar facts of the individual case. Moreover, it is difficult to conceive what “obvious and detrimental consequences stifling to the community” {ibid.) the majority fear from applying the duty of ordinary care to cases involving horseback riders. Would it really stifle the community of Burbank to require Crown’s driver, conducting a trash pickup next to what he knows is a bridle path, to look first and pause momentarily if he sees the occasional horseback rider passing by, in order to avoid frightening the horse? I doubt it.
III.
Even under the majority’s newly crafted “social utility” exception to the traditional duty of ordinary care, however, the Court of Appeal judgment, reversing summary judgment for Crown, must be affirmed.
Crown does not have absolute immunity from liability for accidents involving horseback riders. Under the majority’s “social utility” exception, it owed a duty of care if any of the following facts is established: (i) it operated the garbage truck in a careless or imprudent manner, or caused noises unnecessary to the regular operation of the machine; (ii) it failed to take reasonable protective actions after it knew that Parsons’s horse had actually become frightened; (iii) it operated the truck in an unnecessary or malicious *493 fashion designed to cause fright; or (iv) it violated a safety statute designed to protect the class of which Parsons was a member. (Maj. opn., ante, at pp. 469-470.)
As to the first two of the foregoing considerations, the case must be remanded to the superior court. Crown has not carried its burden on summary judgment of establishing that there are no triable issues of material fact on these points.
Parsons and Crown expressly disputed whether Crown’s driver saw Parsons before he was thrown and injured—i.e., whether they made “eye contact” in the side-view mirror. Nor can we properly draw any certain inferences from the incomplete factual record before us—including the excerpted deposition testimony by Parsons appended to Crown’s motion for summary judgment—either about the direction from which Parsons approached the garbage truck or about when Crown’s driver first saw Parsons or when Parsons was first “within [his] view.” The deposition testimony concerning the incident was, at best, ambiguous on these points: “[M]y horse starts spinning and bolting. He continues and I see him in the side-view mirror and I’m thinking: Oh, my God. You know, shut it down, you’re scaring my horse to death. He proceeds to go ahead up with the trash bin and all I heard was—evidently there were bottles and cans in the trash bin and the loudest noise and I can’t begin to explain how loud the noise was. By then my horse is bolting and spinning and bucking and that’s when I landed in the Main Street on the concrete.”
The majority point to Parsons’s statement that he saw Crown’s driver “in the side-view mirror.” (Maj. opn., ante, at p. 462.) From that, they infer that his “horse reacted to the noise and became uncontrollable while [he] and his horse were behind [Crown’s] truck.” (Id. at p. 463.) They also observe that there was “no evidence” that Crown’s driver saw Parsons, or that Parsons “was within [his] view . . . until after [Parsons] was thrown and injured.” (Ibid.) From that, they infer that he did not. They err thereby.
Although the testimony could be understood to indicate that Parsons approached from behind—or, possibly, from the side—and the horse might have been invisible to Crown’s driver until after Parsons was injured, it could also be understood to indicate that Crown’s driver actually saw Parsons in the side-view mirror, and thus knew that a horse was approaching and that the horse was actually frightened. We simply do not know all the *494 relevant facts. We should not guess and thus preclude a trial to determine the facts. 4
Accordingly, I conclude that the judgment of the Court of Appeal, reversing the summary judgment in favor of Crown, should be affirmed.
Parsons’s statement of fact that he made eye contact with Crown’s driver was supported by his deposition testimony to the following effect: “[M]y horse starts spinning and bolting. He continues and I see him in the side-view mirror and I’m thinking: Oh, my God. You know, shut it down, you’re scaring my horse to death. He proceeds to go ahead up with the trash bin and all I heard was—evidently there were bottles and cans in the trash bin and the loudest noise and I can’t begin to explain how loud the noise was. By then my horse is bolting and spinning and bucking and that’s when I landed in the Main street on the concrete.” In opposition, Crown simply asserted, without citation to any supporting evidence, that its driver did not see Parsons until he was on the ground. The majority are wrong that Parsons’s statement was “wholly unsupported by any evidence.” (Maj. opn., ante, at p. 463, fn. 2.)
Significantly, under neither theory urged by Crown on summary judgment was it even an issue of material fact whether its driver saw Parsons before he fell from the horse; under its asserted “public policy” and “primary assumption of risk” exceptions it owed no duty of care regardless whether its driver made eye contact with Parsons or saw that the horse was frightened.
I note that beginning with footnote 2 and continuing throughout their opinion, the majority devote repetitive effort to disputing this and other points in my dissent. As Shakespeare wrote in Hamlet, “The [majority] doth protest too much, methinks.”
Contrary to the Court of Appeal’s conclusion, the doctrine of assumption of risk and the opinions in Knight v. Jewett (1992) 3 Cal.4th 296 [ 11 Cal.Rptr.2d 2 , 834 P.2d 696 ], are inapplicable to the issues presented here. To that extent only, I agree with the majority. Like Justice Kennard, however, I note that the majority incorrectly characterize the lead opinion in Knight , which failed to command a majority of justices, as the opinion of the court. I continue to believe, as I stated in my concurring and dissenting opinion in Knight , that reliance on the confusing doctrine of applied assumption of risk should be eliminated altogether and that comparative fault principles should be applied to determine liability. (Id. at pp. 321-322 (conc. & dis. opn. of Mosk, J.).)
The majority also note Parsons’s testimony that “it’s a matter of split seconds when I turned onto that trail to what happened,” inferring therefrom that there was nothing Crown’s driver reasonably could have done to prevent Parsons’s injury. Again, the testimony is ambiguous: It may mean, as they conclude, that the injury itself occurred in an instant, or, instead, that the horse became frightened immediately after it turned onto the trail—leaving time for Crown’s driver to avert the injury. Determination of these facts, too, is properly for the trier of fact.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9568531. Public record. Not legal advice.