Jerry Popovich, Melanie Smith, and Elaine Fresch Come Out of Covid Layoff and Win a Defense Verdict for Clients
On August 4, the Selman Breitman trial team of Jerry Popovich, Melanie Smith, and Elaine Fresch secured a defense verdict for a prominent California riding school and its instructor, finding they were not liable to a 12-year-old riding student who broke her neck.
At 12 years old, plaintiff Ava Browne was at Foxfield Riding School’s 12-day summer sleep-away camp in 2017. The camp promised to challenge its students by having them ride and jump different horses, with different personalities, and to learn how to be strong riders for jumpers. By the end of the camp, the riders were to participate in a three-day Eventing competition. On the fourth day of the camp, during a lesson with a Foxfield instructor, the plaintiff came off the school horse after it bucked, landing on her back and neck. It was initially thought that the plaintiff was just bruised, but an x-ray the next day showed a fractured C6 vertebra in her neck, with a perched facet, C5 on top of C6, with a significant disruption of stabilizing ligaments in her neck, making the neck unstable. A subsequent trauma to her neck could have been catastrophic.
Once the diagnosis was made, the plaintiff underwent 17 hours of immobility while strapped on a backboard, waiting for surgery on her neck. The dislocation of the cervical spine was reduced, and then a fusion was done at C5-6, to stabilize the neck, with hooks and a rod. The neck stabilized over the next three months, and the plaintiff had a favorable recovery.
In signing up the plaintiff for the camp, the plaintiff’s mother signed an application that included an express contractual liability waiver. The court found that the liability waiver was valid and applied to the accident and injury of the plaintiff. As a result, partial nonsuit was granted as to ordinary negligence after the plaintiff rested her case-in-chief. The case went to the jury on whether the plaintiff proved that either or both defendants were grossly negligent. The plaintiff’s arguments for gross negligence hinged on the horse assignment to the plaintiff at the lesson, extreme difficulty in the plaintiff’s controlling the horse, and concerns voiced to the instructor by the plaintiff about being nervous with the horse. The claim of gross negligence was also claimed from the instructor’s decision to take the “beginners” group of campers out of a ring, and into a cross-country field in which the plaintiff was to jump a solid log, about 20” high, which again the plaintiff voiced concerns about. Defendants’ evidence included the school horse had no prior incidents, the group of campers was a strong lower-level group, the plaintiff had successfully jumped over multiple jumps in the riding ring and field prior to the log jump, and the instructor encouraged her to try the jump based on her assessment of the plaintiff’s skills at that point.
The jury found that neither Foxfield Riding School nor the instructor was grossly negligent, rendering a defense verdict in favor of both defendants.
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