Equine Law Partner Elaine K. Fresch and Melanie Smith Obtain A Summary Judgment Ruling on Express Assumption of Risk and the Clients are Awarded Attorney's Fees and Costs!
Elaine K. Fresch, head of the equine law department, and Melanie Smith won their summary judgment motion in an equine lawsuit. Plaintiff claimed she fell off her horse when the cinch on her saddle was loose during a trail ride conducted by Elaine and Melanie's clients. Plaintiff claimed the wrangler was negligent for improperly tightening the cinch before Plaintiff got on and for failing to re check the cinch during the ride. Plaintiff also claimed the stable was negligent in their hiring of the wrangler. She claimed severe head trauma and asserted a seven figure claim for loss of future earnings capacity. Elaine and Melanie brought a summary judgment motion on the basis of the written Release and Waiver of Liability Plaintiff had signed which also contained a hold harmless provision including an agreement to indemnify the stable for attorney's fees. Elaine and Melanie argued that the release barred Plaintiff's lawsuit and that there were no triable issues of material fact regarding Plaintiff's claims for gross negligence (which can not be expressly released) or negligent hiring. Interestingly, the clients claimed the Plaintiff did not fall off as far as they recalled so the two sides had conflicting stories. However, Elaine and Melanie argued even if she did fall, the release bars a claim for negligence pursuant to California law. The court granted the motion on all claims, thus enforcing the release agreement and finding there were no facts that would rise to the level of gross negligence. The court also granted the clients' subsequent motion for attorney's fees based on the Hold Harmless provision in the Release Agreement and denied the Plaintiff's motion to tax costs awarding the clients nearly $50,000 in costs and $100,000 in attorney's fees. Plaintiff had allowed an Offer of Judgment pursuant to CCP Section 998 to expire.
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