Cohen

*1480 Opinion

Appellant Susan Cohen sustained injury as a result of a fall from a horse during a guided trail ride provided her by respondent Five Brooks Stable. Two questions are presented: whether by signing a “Visitor’s Acknowledgement of Risk” (the Release) appellant expressly waived her negligence claim and, if not, whether respondent is nevertheless exonerated by the doctrine of primary assumption of risk. Granting summary judgment on the ground that the Release constituted an express waiver, the trial court found it unnecessary to inquire into the applicability of the doctrine of primary assumption of risk.

We shall conclude, first, that the Release does not clearly and unambiguously inform an ordinary person untrained in the law that its purpose and effect is to exempt respondent from liability for its own negligence. We shall also conclude that summary judgment is not supported by the doctrine of primary assumption of risk. Accordingly, we shall reverse the judgment.

FACTS AND PROCEEDINGS BELOW

In August 2004, appellant, her friend Kathy Lord, and two others went on a horseback ride on the Olema Trail in the Golden Gate National Recreational Area in Marin County…

I respectfully dissent for two reasons. First, I become concerned when an opinion of this court devotes as substantial an amount of space as the first part of the majority’s opinion does to citing, but then distinguishing, prior published opinions of both our sister courts and our Supreme Court. By my estimation, the majority devotes well over half of that portion of its opinion to distinguishing cases going the opposite way from its ruling. In any event, I find the holdings in those cases more compelling than the reasoning in the first part of the majority’s opinion.

Second, I am even more troubled by the fact that the majority reverses the summary judgment granted by the trial court on the basis of a theory—that *1500 respondent’s agent’s conduct was either intentional or reckless—never either pled or urged by appellant in the trial court much less argued in her briefs to us.

I.

Probably the most obvious of the majority’s extensive efforts to distinguish cases holding differently than it does involves Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351 [ 129 Cal.Rptr.2d 197 ] (Benedek). In the course of the majority’s argument as to why the language of the instant release…

Appellant Susan Cohen sustained injury as a result of a fall from a horse during a guided trail ride provided her by respondent Five Brooks Stable. Two questions are presented: whether by signing a "Visitor's Acknowledgement of Risk" (the Release) appellant expressly waived her negligence claim and, if not, whether respondent is nevertheless exonerated by the doctrine of primary assumption of risk. Granting summary judgment on the ground that the Release constituted an express waiver, the trial court found it unnecessary to inquire into the applicability of the doctrine of primary assumption of risk.

We shall conclude, first, that the Release does not clearly and unambiguously inform an ordinary person untrained in the law that its purpose and effect is to exempt respondent from liability for its own negligence. We shall also conclude that summary judgment is not supported by the doctrine of primary assumption of risk. Accordingly, we shall reverse the judgment.

In August 2004, appellant, her friend Kathy Lord, and two others went on a horseback ride on the Olema Trail in the Golden Gate National Recreational Area in Marin County (GGNRA) on horses rented from…