NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
COLLEEN GRUVER AND GARY GRUVER,
Wife and husband,
Plaintiffs/Appellants,
v.
WILD WESTERN HORSEBACK ADVENTURES LLC,
Defendant/Appellee.
No. 1 CA-CV 20-0566
FILED 8-17-2021
Appeal from the Superior Court in Yavapai County
No. V1300CV201980007
The Honorable Christopher L. Kottke, Judge
REVERSED AND REMANDED
COUNSEL
Ahwatukee Legal Office, PC, Phoenix
By David L. Abney
Co-Counsel for Plaintiffs/Appellants
David Shapiro Law, PLLC, Scottsdale
David C. Shapiro, Heather E. Bushor
Co-Counsel for Plaintiffs/Appellants
Grasso Law Firm, PC, Chandler
By Robert Grasso Jr., Jenna Victoria Mandraccia, N. Patrick Hall
Counsel for Defendant/Appellee
GRUVER, et al. v. WILD WESTERN
Decision of the Court
MEMORANDUM DECISION
Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge David B. Gass and Judge Michael J. Brown joined.
W E I N Z W E I G, Judge:
¶1 Colleen and Gary Gruver appeal the superior court’s entry of
summary judgment in favor of Wild Western Horseback Adventures,
L.L.C. (“Western Horseback”) on their claims for negligence and gross
negligence. We reverse and remand.
FACTS AND PROCEDURAL BACKGROUND
¶2 In the spring of 2018, Colleen and Gary arrived at Wild
Western Horseback Ranch in Camp Verde for a guided 90-minute
horseback ride. Western Horseback owned and operated the dude ranch.
Before the ride, Colleen and Gary signed a one-page form titled “Visitor’s
Acknowledgement of Risk,” which mistakenly identified the business
owner as “Red Rock Horseback Adventures, Inc.” Western Horseback did
not explain the Acknowledgement’s terms or confirm that Colleen and
Gary read or understood them. As relevant here, the Acknowledgement
provided:
I assume full responsibility for personal injury to myself
and/or to members of my family, or for loss or damage to my
personal property and expenses thereof as a result of my
negligence or the negligence of my family participating in
said activity except to the extent such damage or injury may
be due to the negligence of Red Rock Horseback Adv[.]
¶3 The Acknowledgement also described “the risks and dangers
inherent in guided horseback tours,” including that “[a] horse may, without
warning or any apparent cause: buck, stumble, fall, rear, make
unpredictable movements, spook, jump obstacles, step on a person’s feet,
push or shove a person, that saddles or bridles may loosen or break, any/all
of which may cause the rider to fall or be jolted, resulting in serious injury
or death.”
¶4 In all, the riding party had nine guests and a wrangler named
Flint, who had over 30 years of experience with horses and wild animals
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Decision of the Court
but lacked formal training as a wrangler. Gary heard that a second
wrangler should have been present, but he called in sick. The guests
received basic safety instructions on how to make directional use of the
reins and how to turn or stop a horse, but they received no instruction on
the proper distance to maintain between horses. After mounting her horse,
Colleen complained it would not stay in line. Flint said not to “worry about
that [because] [t]hey’ll fall in line when we start going.”
¶5 The horses and guests then ambled onto the trail in single file
behind Flint. During the ride, the horses drifted apart, creating gaps
between them. About an hour in, Gary lost a stirrup, and a horse bit his
leg. Flint paused the trail ride to respond. As the horses slowed to a halt,
the horse in front of Colleen kicked her shin and broke her tibia.
¶6 The Gruvers sued Western Horseback for damages arising
from Colleen’s injury, asserting claims of negligence, gross negligence, loss
of consortium and punitive damages. Western Horseback moved for
summary judgment on all claims, arguing the Gruvers released their
negligence claim under A.R.S. § 12-553, and the record lacked enough
evidence to create a triable question of fact on causation for negligence or
gross negligence. For their part, the Gruvers argued the release was
unenforceable and the record had enough evidence to create a triable issue
on causation.
¶7 The superior court granted summary judgment to Western
Horseback on all claims, explaining that Gruvers released their negligence
claim under A.R.S. § 12-553 by signing the Acknowledgement. The court
also found the record devoid of evidence to prove “gross negligence or
willful misconduct.” The Gruvers timely appealed. We have jurisdiction.
See A.R.S. § 12-2101(A)(1).
DISCUSSION
¶8 We review de novo the grant of summary judgment and
issues of contract interpretation. See Lindsay v. Cave Creek Outfitters, L.L.C.,
207 Ariz. 487, 490, ¶ 11 (App. 2003); Grosvenor Holdings, L.C. v. Figueroa, 222
Ariz. 588, 593, ¶ 9 (App. 2009). Summary judgment is proper if there are no
genuine issues of material fact. Orme Sch. v. Reeves, 166 Ariz. 301, 305 (1990).
We view all facts and reasonable inferences in the light most favorable to
the non-movant. Lindsay, 207 Ariz. at 490, ¶ 11.
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Decision of the Court
I. Negligence Claim Not Released
¶9 The superior court dismissed the negligence claim under
A.R.S. § 12-553, concluding the statute “clearly applies.” This was error.
Section 12-553(A) lists four requirements for an equine owner to be released
from the ordinary negligence claims of persons who the owner allows “to
take control of an equine.” The requirements are:
(1) The person has taken control of the equine from the
owner or agent when the injury or death occurs;
(2) The person has signed a release before taking control
of the equine;
(3) The owner or agent has properly installed suitable tack
or equipment or the person has personally tacked the equine
with tack the person owned, leased or borrowed; and
(4) The owner or agent assigns the person to a suitable
equine based on a reasonable interpretation of the person’s
representation of his skills, health and experience with and
knowledge of equines.
¶10 The second requirement is dispositive here because Colleen
never signed a “release” as defined by the statute. A.R.S. § 12-553(E)(2)
(defining “release” as “a document that a person signs before taking control
of an equine from the owner or owner’s agent [which] acknowledges that
the person is aware of the inherent risks associated with equine activities,
is willing and able to accept full responsibility for his own safety and
welfare and releases the equine owner or agent from liability unless the
equine owner or agent is grossly negligent or commits wilful, wanton or
intentional acts or omissions.”). Instead, the plain terms of the
Acknowledgement released Western Horseback only from personal injury,
loss or damage resulting from Colleen’s own negligence, and preserved
Colleen’s right to sue for “damage or injury [that] may be due to the
negligence of [Western Horseback].”
¶11 Even so, Western Horseback contends the Gruvers waived
this argument by not presenting it to the superior court. But we review the
grant of summary judgment de novo and cannot ignore the plain language
of the contract on which the ruling was based. Cal. Cas. Ins. Co. v. Am. Fam.
Mut. Ins. Co., 208 Ariz. 416, 418, ¶ 5 (App. 2004). Western Horseback also
contends that Colleen assumed the risks associated with horseback riding
under the Acknowledgement. But an assumption of risk defense presents
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GRUVER, et al. v. WILD WESTERN
Decision of the Court
a question of fact for the jury under the Arizona Constitution. Ariz. Const.
art. 18, § 5 (“The defense of . . . assumption of risk shall, in all cases
whatsoever, be a question of fact and shall, at all times, be left to the jury.”).
¶12 We reverse the superior court’s contract interpretation. See
Lindsay, 207 Ariz. at 492, ¶ 18 (approving release that “clearly establishes
[the rider] was promising not to sue [the equine owner]”).1
II. Causation and Gross Negligence
¶13 The superior court also found that the Gruvers did not
present enough evidence at summary judgment for a “reasonable juror” to
“conclude a standard of care was breached or that injury to [Colleen’s] leg
was a product of [Western Horseback’s] conduct.”
¶14 On this record, we reverse because a reasonable juror could
have concluded that Western Horseback breached the industry’s standard
of care and caused Colleen’s injury. Proximate cause is ordinarily a
question of fact for the jury. Robertson v. Sixpence Inns of Am., Inc., 163 Ariz.
539, 546 (1990). To defeat summary judgment, the Gruvers “need only
present probable facts from which the causal relationship reasonably may
be inferred,” id., and need not “negate entirely the possibility that the
defendant’s conduct was not a cause” of a plaintiff’s injury, Wisener v. State,
123 Ariz. 148, 150 (1979). Negligence claims are properly dismissed “when
[the] plaintiff’s evidence does not establish a causal connection [and
instead] leav[es] causation to the jury’s speculation, or where reasonable
persons could not differ on the inference derived from the evidence.”
Robertson, 163 Ariz. at 546.
¶15 First, the Gruvers offered the expert opinion of David Johnson
at summary judgment. Johnson had taught thousands of children and
adults to ride and care for horses over the past 50 years. He was prepared
to testify that Western Horseback deviated from the industry standards
when it allowed just one wrangler to lead and supervise nine riders.
Johnson also concluded that Flint “totally failed to observe” or supervise
the riders. On causation in particular, the expert was prepared to testify
that Colleen would “probably” not have been injured if Western Horseback
1 The Gruvers also argue the release was ineffective because it
incorrectly identified the equine owner as Western Horseback’s
predecessor-in-interest. Given our holding and rationale, we need not
address that argument.
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GRUVER, et al. v. WILD WESTERN
Decision of the Court
met the standard of care: “The reason the horse kicked [Colleen] Gruver
was because the horses were too close as they were passing,” and “[t]he
addition of a second wrangler would have resulted in a safer ride and
probably would have prevented the accident.” Of particular importance,
Western Horseback never countered with a rebuttal expert witness.
¶16 Second, Flint agreed it was important to monitor the horses in
his deposition “to see if there’s inherent risk that you may see someone
overriding a horse, kicking on them, pulling back on them, [or] having any
difficulties,” and conceded he had no “understanding of what was going
on” behind him when the accident occurred. He could not even recall the
last time he turned around to check on the horses before Colleen’s injury.
Flint also agreed it was dangerous for large gaps to develop between horses
and characterized Colleen’s injury as not commonly associated with trail
riding. Although Colleen might not prevail at trial, this record was
sufficient to defeat summary judgment.2
¶17 Having found “there exists not a hint of negligence,” the
superior court dismissed the Gruvers’ gross negligence claim, finding “one
does not even come close, in the record, to any possible finding of gross
negligence or willful misconduct in this matter.” This was error.
¶18 Gross negligence requires the same four elements of
negligence, and evidence of gross, willful or wanton conduct. Dinsmoor v.
City of Phoenix, 249 Ariz. 192, 196, ¶ 15 (App. 2020). “Generally, whether
gross negligence occurred is a question of fact for a jury to determine.”
Noriega v. Town of Miami, 243 Ariz. 320, 329, ¶ 37 (App. 2017). “[B]ut the
evidence on the issue must be more than slight and may not border on
conjecture.” Walls v. Ariz. Dep’t of Pub. Safety, 170 Ariz. 591, 595 (App. 1991).
¶19 Here, the evidence of gross negligence was more than
conjecture. Flint could not recall the last time he had looked back at the line
before the accident and conceded he was unaware of developments behind
him. And again, Johnson was prepared to testify that Flint “totally failed”
to either observe or supervise the riders. This evidence created a triable
question. We reverse the superior court’s grant of summary judgment in
favor of Western Horseback.
2 Western Adventures misplaces its reliance on Florez v. Sargeant, 185
Ariz. 521, 526 (1996), because the Gruvers’ equine expert offered more than
speculation, ultimate facts or conclusions of law.
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Decision of the Court
III. Loss of Consortium and Punitive Damages
¶20 And last, Western Horseback requests that we affirm the
superior court’s dismissal of the Gruvers’ claims for loss of consortium and
punitive damages. We decline the invitation, however, because the
superior court dismissed those claims as derivative of the negligence and
gross negligence claims. See Martin v. Staheli, 248 Ariz. 87, 92, ¶ 17 (App.
2019) (“Loss of consortium is a derivative claim, which means that the
success of a loss-of-consortium claim is dependent on the success of another
claim.”); Edmond v. Fairfield Sunrise Vill., Inc., 132 Ariz. 142, 144 (App. 1982)
(noting that punitive damages are “derivative” and “may only be awarded
if the plaintiff has recovered actual damages). Western Horseback may
move for summary judgment on remand.
CONCLUSION
¶21 We reverse the superior court’s entry of summary judgment
for Western Horseback and remand this matter for further proceedings
consistent with this decision. As the prevailing party, we award the
Gruvers their taxable costs on appeal, contingent on timely compliance
with ARCAP 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
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