Filed 9/14/22 Murillo v. Diego CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
MARILYN MURILLO, B312272
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 19AVCV00906)
VICTOR DIEGO et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Wendy W.Y. Chang, Judge. Affirmed.
Kistler Law Firm and Jo Caro for Plaintiff and Appellant.
West Corzine, Eugene F. West and John D. Tullis for
Defendants and Respondents.
After she fell off a mechanical bull at a child’s birthday
party and was injured, Marilyn Murillo (plaintiff) sued Victor
Diego (Victor), the owner of the home where the party was held,
and Cruz Lopez (Cruz), Victor’s brother-in-law who helped Victor
purchase the residence (collectively, defendants). The trial court
granted summary judgment for defendants, finding the primary
assumption of the risk doctrine barred relief because the risk of
being thrown from a mechanical bull is inherent in and integral
to the activity. We determine whether plaintiff established a
material dispute of fact over whether defendants owed her a duty
of care.
I. BACKGROUND
A. The Accident
On February 2, 2019, Victor and his wife hosted a party at
their Palmdale home to celebrate their daughter’s 12th birthday.
Victor’s daughter asked to have a mechanical bull at the party.
The bull, which Victor rented from a local business, P&M Party
Rental, was delivered to Victor’s home on the day of the party.
The device did not have a saddle, only a single rope grip
positioned near the bull’s neck. The bull was set up by employees
of another company and it was enclosed in an accompanying
bounce house. Victor did not make or observe any changes being
made to the bull after it was readied for use.
Among the party’s invitees was Cruz. Although he had
helped his sister and Victor purchase their home, Cruz did not
live there or manage the property. In addition, he played no role
in organizing or hosting the party and, like Victor, did not make
changes to the bull (or see changes being made) after it had been
set up.
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Also among the party goers was plaintiff, an adult.
Plaintiff knew before attending that a mechanical bull would be
at the party and, indeed, that was the “main reason” she decided
to attend a child’s birthday party. Previously, plaintiff had
ridden and been thrown from a mechanical bull when visiting a
theme park.
The party began in the early afternoon. Throughout the
course of the afternoon, the children at the party—Victor’s
daughter, her four siblings, and 10 girlfriends—rode the bull.
Although the children were routinely thrown off the bull, none of
them suffered any injury or complained about the bull or its
operation.
Plaintiff, like a number of her adult friends at the party,
waited to ride the bull until after the children finished riding it.
As plaintiff waited for her turn, she watched her friends ride the
bull, each of whom was thrown off without injury or complaint.
As she watched the others, plaintiff did not see anything that
dissuaded her from riding the bull. Before mounting the bull,
plaintiff expected to be thrown off but she thought it would be
“fun” to try to hold on as long as possible before being thrown.
When plaintiff mounted the bull, she placed her left hand
under the rope grip and her right hand on top on the grip with
her right thumb “laced” between the grip and her left hand. As
she rode the bull, plaintiff did not sense the ride was performing
in any way differently than it had for her friends who preceded
her. At some point during her ride, plaintiff was thrown from the
bull—and in the process the tip of her right thumb was severed.
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B. Defendants’ Motion for Summary Judgment
Plaintiff sued defendants for negligence and premises
liability. Defendants moved for summary judgment on the
ground they had no duty to protect plaintiff from the inherent
risks of riding a mechanical bull. They argued being thrown from
a mechanical bull is an intrinsic risk of the activity, as is the
possibility of injury from such a throw.
In support of their motion, defendants each submitted a
declaration denying any role in setting up or altering the bull. In
addition, they submitted excerpts from the transcript of plaintiff’s
deposition in which she admitted, among other things, she
attended the party in order to ride the bull, had prior experience
riding (and being thrown from) a mechanical bull, and fully
expected to be thrown from the bull at the party.
Plaintiff opposed defendants’ motion for summary
judgment. In the main, plaintiff contended her particular injury,
a severed thumb, is not an inherent risk of riding a mechanical
bull. In addition, she argued defendants increased the inherent
risks by offering a mechanical bull without a saddle and proper
handgrips. Plaintiff supported her opposition with her own
declaration, a declaration from Pedro Lopez (Lopez) the owner of
the company that set up the mechanical bull at the party, and
one of her attorneys.
Plaintiff declared the risks inherent in the activity were
made “more dangerous” due to the absence of a saddle and the
presence of only a single rope grip, which was placed in an
“unusual orientation.” Lopez’s declaration did not address the
orientation of the rope grip, but he did state “[t]he bull has an
accompanying saddle that has a handle for riders to hold onto
while riding.” Lopez, however, did not discuss the condition in
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which the bull was installed by his employees; he did not state,
for instance, that the bull was delivered with a saddle available
for use or mounted on the bull’s back. The declaration from
plaintiff’s counsel attached three photographs: one of the bull
without a saddle, one of a saddle by itself, and one with a saddle
mounted on the bull.
Plaintiff did not fully dispute any of the 26 undisputed facts
proffered by defendants in support of their motion. She offered
only qualifications to two of the proffered undisputed facts: she
maintained the tip of her thumb was severed due to the unusual
orientation of the bull’s rope grip and the absence of a saddle and
she asserted defendants were in possession and control of the bull
while it was at Victor’s home.
In their reply brief, defendants argued there was no
evidence (1) a saddle was ever provided with the bull used at the
party or (2) the presence of a saddle would have affected the risks
inherent in riding a mechanical bull. Concurrent with their reply
brief, defendants filed evidentiary objections to selected
statements in plaintiff’s declaration regarding the rope grip’s
allegedly unusual orientation and the purported effects arising
from the missing saddle; defendants argued such statements
lacked foundation and contradicted plaintiff’s deposition
testimony. Defendants also objected to the photograph of the
missing saddle mounted on the bull submitted with the
declaration by plaintiff’s attorney as lacking foundation.
C. The Trial Court’s Ruling
After hearing argument, the trial court took the matter
under submission and issued a ruling in January 2021 granting
summary judgment to defendants. In reaching its decision, the
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trial court sustained defendants’ foundation objection to the
statements in plaintiff’s declaration about the orientation of the
bull’s rope grip.1 The court also sustained defendants’ objections
to the photograph purporting to show a missing saddle mounted
on the bull used at the party.2
The court found the primary assumption of risk doctrine
barred plaintiff’s causes of action because “the risk of falling off
or being thrown off a mechanical bull is inherent and integral to
the act of riding it,” plaintiff knew of the risk before attending the
party, plaintiff was reminded of the risk as she waited her turn
on the bull, and plaintiff fully expected to be thrown off when she
climbed on to the bull. The court additionally found there was no
admissible evidence supporting plaintiff’s assertion that the bull
should have been equipped with a saddle and proper handgrips.
The court rejected plaintiff’s argument that defendants should
have recognized additional dangers posed by a bull not equipped
with a saddle or different handgrips because defendants were
ordinary consumers who did not design, manufacture, or install
the bull or any of its component parts.3
1
The court also stated that where plaintiff’s declaration
contradicted her prior deposition testimony, the court would rely
on the latter.
2
Plaintiff does not challenge the trial court’s evidentiary
rulings on appeal.
3
The trial court also “note[d]” riding a mechanical bull fell
within the purview of Civil Code section 846. That statute
provides an owner of real property does not owe a duty of care to
those who enter the property for a “recreational purpose” unless
they were “expressly invited rather than merely permitted to
come upon the premises by the landowner.” (Civ. Code, § 846,
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II. DISCUSSION
Our review of the judgment is de novo (Ennabe v. Manosa
(2014) 58 Cal.4th 697, 705), and we hold the trial court correctly
granted summary judgment for defendants pursuant to the
primary assumption of risk doctrine (see generally Kahn v. East
Side Union High School Dist. (2003) 31 Cal.4th 990, 1004 [“the
question of ‘the existence and scope’ of the defendant’s duty is one
of law to be decided by the court, not by a jury, and therefore it
generally is ‘amenable to resolution by summary judgment’”]
(Kahn)). The risk of being thrown while attempting to hold on to
a bucking mechanical bull is inherent in riding such a bull, and
defendants’ attenuated relationship to the activity (as hosts of a
social event held at a private residence who did not set up the
bull or provide any advice about how it should be ridden)
precludes finding they owed plaintiff a duty of care.
A. The Primary Assumption of Risk Doctrine Generally
“‘Although persons generally owe a duty of due care not to
cause an unreasonable risk of harm to others (Civ. Code, § 1714,
subd. (a)), some activities . . . are inherently dangerous.
Imposing a duty to mitigate those inherent dangers could alter
the nature of the activity or inhibit vigorous participation.’
[Citation.] The primary assumption of risk doctrine, a rule of
limited duty, developed to avoid such a chilling effect.
[Citations.]” (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148,
1154 (Nalwa).)
subds. (a), (b), & (d)(3); Calhoon v. Lewis (2000) 81 Cal.App.4th
108, 113-115 (Calhoon).) We need not address the issue in light
of our disposition of this appeal.
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“Primary assumption of the risk arises when, as a matter of
law and policy, a defendant owes no duty to protect a plaintiff
from particular harms. [Citation.]” (Avila v. Citrus Community
College Dist. (2006) 38 Cal.4th 148, 161 (Avila).) “Under this
duty approach, a court need not ask what risks a particular
plaintiff subjectively knew of and chose to encounter, but instead
must evaluate the fundamental nature of the sport [or activity]
and the defendant’s role in or relationship to that sport [or
activity] in order to determine whether the defendant owes a
duty to protect a plaintiff from the particular risk of harm.” (Id.;
accord, Nalwa, supra, 55 Cal.4th at 1162 [“The scope of the duty
owed to participants in active recreation . . . depends not only on
the nature of the activity but also on the role of the defendant
whose conduct is at issue”].) In deciding the issue of inherent
risk for purposes of the primary assumption of risk doctrine,
courts “may . . . consult case law, other published materials, and
documentary evidence introduced by the parties on a motion for
summary judgment.” (Nalwa, supra, at 1158; see also Zipusch v.
LA Workout, Inc. (2007) 155 Cal.App.4th 1281, 1292 [in
determining whether a risk is inherent in an activity, a reviewing
court considers “the record and common sense”].)
An activity falls within the purview of the primary
assumption of risk doctrine “if ‘“the activity is done for enjoyment
or thrill, requires physical exertion as well as elements of skill,
and involves a challenge containing a potential risk of injury.”’”
(Calhoon, supra, 81 Cal.App.4th at 115 [holding skateboarding is
a type of activity covered by the primary assumption of risk
doctrine]; accord, Bertsch v. Mammoth Community Water Dist.
(2016) 247 Cal.App.4th 1201, 1208 [same].) California courts
have concluded a wide range of recreational activities fall within
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the doctrine’s purview. (See, e.g., Nalwa, supra, 55 Cal.4th at
1156-1157 [bumper car rides at an amusement park]; Shin v. Ahn
(2007) 42 Cal.4th 482, 497 [recreational golf]; Knight v. Jewett
(1992) 3 Cal.4th 296, 318-320 [touch football]; Ford v. Gouin
(1992) 3 Cal.4th 339, 345 [recreational water skiing]; Moser v.
Ratinoff (2003) 105 Cal.App.4th 1211, 1221 [long-distance
recreational group bicycle ride].)
The inquiry into the nature of an activity focuses on the
general risks inherent in the activity, not the specific type of
injury suffered by a particular plaintiff. In Calhoon, for instance,
the plaintiff was injured when he fell off his skateboard and
accidentally impaled himself on a metal pipe located in a planter
in a friend’s driveway. (Calhoon, supra, 81 Cal.App.4th at 111.)
The plaintiff sued his friend’s parents for negligence and
premises liability. (Id. at 111-112.) The trial court granted
summary judgment to the defendants and the Court of Appeal
affirmed, holding the primary assumption of risk doctrine
precluded recovery. (Id. at 115-118.) In reaching its decision, the
Court of Appeal gave little weight to the unexpectedly severe
nature of the plaintiff’s injury: “[T]he pipe did not increase
Michael’s risk of injury in the sport. Michael was injured because
he fell. As Michael concedes, falling is an inherent risk of
skateboarding, and the presence of the pipe or the planter had
nothing to do with his falling down. The fact that Michael’s
injuries were more severe than they would have been if the pipe
had not been in the planter does not make the assumption of risk
doctrine inapplicable.” (Id. at 116.)
Although a defendant does not have a duty to protect a
plaintiff from inherent risks of activities subject to the primary
assumption of risk doctrine, the defendant does retain a duty “not
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to increase the risk of harm beyond what is inherent” in the
activity. (Kahn, supra, 31 Cal.4th at 1004.) This do-not-increase-
the-harm qualification to primary assumption of risk principles,
however, applies only when there is some “organized
relationship” between the parties, such as when the defendant
and plaintiff are “recreational business operator and patron,” or
the defendant is a “coach or sport instructor” or a “purveyor of
recreational activities.” (Parsons v. Crown Disposal Co. (1997) 15
Cal.4th 456, 465, 481-482 (Parsons).) When no such “relationship
exists . . . and there is no policy reason for imposing a duty upon
the defendant to avoid increasing the risk of harm . . . , the
defendant has no such duty. (Id. at 483; see also id. at 482
[“when, as here, parties have no . . . [organized] relationship—
and instead are independent actors, separately pursuing their
own activities—a defendant generally has no duty to avoid
increasing the risks inherent in a plaintiff’s activity”].)
B. The Primary Assumption of Risk Doctrine Precludes
Liability for Defendants
“The elements of a negligence claim and a premises liability
claim are the same: a legal duty of care, breach of that duty, and
proximate cause resulting in injury.” (Kesner v. Superior Court
(2016) 1 Cal.5th 1132, 1158.) Defendants were entitled to
summary judgment on plaintiff’s causes of action because there is
no dispute of material fact precluding a determination that
defendants owed her no duty of care under the primary
assumption of risk doctrine.
Although no published California appellate opinion has yet
addressed the inherent risks of riding a mechanical bull, courts in
other jurisdictions have. (Meier v. Ma-Do Bars, Inc.
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(N.Y.App.Div. 1985) 484 N.Y.S. 2d 719, 720-721 [a mechanical
bull is a motorized “amusement device” that simulates “the
spinning and bucking of actual bulls as they perform when ridden
in rodeos”]; Van Tuyn v. Zurich American Ins. Co.
(Fla.Dist.Ct.App. 1984) 447 So.2d 318, 319 [a mechanical bull
moves “forward, backward and sideways direction, the object
being to dislodge the rider”] (Van Tuyn); Flowers v. SRKC, LLC
(D.Kan. Mar. 30, 2010, No. 09-2364-CM) 2010 WL 11628012 at *6
[“Falling off of the mechanical bull or being thrown from it are
anticipated inherent risks when riding a mechanical bull”].)
Based on these cases from other jurisdictions, the evidence in the
summary judgment record, and common sense, we hold
mechanical bull riding is a type of activity covered by the primary
assumption of risk doctrine: it is done for thrill, requires physical
exertion as well as skill, and carries a risk of injury. Like riding
a horse, riding a mechanical bull has certain inherent and
obvious risks, most notably falling or being thrown from the
device.
The undisputed facts establish plaintiff was well aware of
the inherent risks of being thrown from a mechanical bull. On a
previous occasion, she rode and was thrown from a mechanical
bull in a commercial venue (a theme park). Moreover, while
waiting in line at the birthday party, plaintiff observed each of
her friends being thrown from the bull; as a result, she fully
expected to be thrown from the bull when it was her turn on the
ride. The undisputed facts also show that the parties’
relationship to the activity did not create a duty of care on
defendants’ part. Defendants were not operators of a commercial
enterprise promoting mechanical bull riding. Victor was merely
the host of his daughter’s birthday party and Cruz was one of his
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guests. In addition, there was no evidence defendants, either
individually or collectively, held themselves out as expert and
experienced mechanical bull riders or instructors, or that they
provided any guidance to plaintiff before she rode the bull.
(Compare Van Tuyn, supra, 447 So.2d at 319 [reversing grant of
summary judgment because a genuine issue of material fact
existed with respect to, among other things, whether plaintiff, a
first-time mechanical bull rider, fully understood the risks and
dangers involved in riding the device].) Moreover, defendants did
not own the bull in question or prepare it for the partygoers’ use;
Victor rented it from a party supply vendor and another company
set the device up at Victor’s home. There was also no evidence
defendants modified the bull in any way after it had been set up.
These undisputed facts are accordingly sufficient to establish the
primary assumption of risk doctrine applies here and precludes
recovery because defendants owed plaintiff no duty of care.
Plaintiff’s only counterargument is that the primary
assumption of risk doctrine should not apply because defendants
increased the risks inherent in mechanical bull riding by failing
to provide a saddle for the bull. We will assume for argument’s
sake that there was an organized relationship between plaintiff
and defendants that would permit liability if defendants did
increase the risk of riding a mechanical bull. (But see Parsons,
supra, 15 Cal.4th at 481-482.) But even in that counterfactual
scenario, there is no admissible evidence that defendants did
increase the risk. The undisputed facts established the
mechanical bull was set up by people other than defendants.
Plaintiff adduced no evidence that Victor was offered and
declined an option by P&M Party Rental to have the bull
equipped with a saddle or that the mechanical bull as set up by
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Lopez’s company was equipped with a saddle and defendants
either asked that the saddle be removed or removed it
themselves. There is also no substantial evidence, in any event,
that the absence of a saddle on the mechanical bull increased the
inherent risk of injury.
DISPOSITION
The judgment is affirmed. Defendants shall recover their
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM, J.
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