I respectfully dissent once again from a post -Jewett assumption of the risk opinion authored by one of my colleagues. This time, however, the distance between our positions is far narrower and thus this dissent can be much shorter.
, I have no quarrel with the majority’s excellent summary of the primary assumption of the risk doctrine as it applies to operators of commercial sports facilities, including horse-renting stables. I agree such facilities owe a duty not to increase the risk above the level inherent in the athletic activity they are being compensated to supply the public. As the majority holds, in the context of a horse-renting stable this duty ordinarily includes the responsibility “to supply horses which are not unduly dangerous. . . . [and] to warn . . . patrons renting a given horse if that horse has evidenced a predisposition to behave in ways which add to the ordinary risk of horse riding.” (Maj. opn., ante, at p. 587.)
Now, I concede it is possible to imagine a horse-renting facility catering to experienced riders and advertising the fact its stable is full of wild and dangerous horses just waiting to challenge the abilities of the best wranglers and equestrians. Presumably the commercial operator of such a horse-renting facility would not owe a duty to weed out the dangerous animals or to warn its highly experienced patrons about those dangerous propensities. But that is not the nature of the Rolling J operation. An afternoon trail ride is about as far as one can get from the sort of bronco riding adventure I have posited.
*590Therefore, the nature and level of duty owed by the operator of the horse-renting facility in this case is different and higher than it might be for one advertising a wild and woolly ride on untamed beasts.
Public policy certainly supports imposing a duty on commercial operators of horse-renting facilities which are catering to supervised trail riders to supply suitable horses and to warn of any unsuitably risky propensity a given horse may exhibit. Trail rides will not be less pleasureful because the ride takes place on safe horses or at least on ones that have not exhibited unsuitably risky tendencies. Nor does it make the ride more enjoyable to take it on a horse of whose propensities the operator has not bothered to warn the rider. (In contrast, the Supreme Court justified the absence of a duty of care among coparticipants in a touch football game by emphasizing imposition of such a duty would seriously impair the vigor, enthusiasm and pleasure of engaging in this particular sport. (Knight v. Jewett (1992) 3 Cal.4th 296, 318-319 [11 Cal.Rptr.2d 2, 834 P.2d 696].)
There is no more social value in sending amateur, often inexperienced, riders on a trail ride with horses known to have unsuitable propensities or with unsuitable propensities not even brought to the riders’ attention than there is in sending people onto the freeways with defectively designed or manufactured cars, or putting them on a dangerously maintained ferris wheel, or sending them out into the Pacific in a rented sailboat which turns out to have tom sails, a broken rudder, and a hole in the bottom.
“Primary assumption of the risk” does not apply properly to bar recovery completely in any case where, as here, the human endeavor involved is one in which society is best served by requiring the class of which the defendant is a member to exercise due care to those in the plaintiff’s class. In those situations, as explained in the plurality opinion in Jewett, the comparative negligence doctrine is the far superior approach in both theory and practice. It supplies a means for weighing how much of the plaintiff’s injury is attributable to the commercial recreation facility’s breach of its duty of due care toward its patrons and how much is attributable to the patron’s breach of her duty of due care toward herself.
Here there indeed was evidence the plaintiff rider had been contributorily negligent. She took her hands off the reins for a moment to remove her coat to hand to a co-rider, a young girl, who was complaining of the cold. This act of contributory negligence, if proved at trial, presumably would find its way into the comparative negligence equation if the jury were to begin deliberating on this case. But, if proved at trial, so would Rolling J’s negligence in supplying plaintiff with a horse known to have a predisposition to spook at such movements without even warning her of this predisposition. Out of this would emerge an award which not only measured out *591the proper ration of compensation to the injured rider but also administered the proper levels of financial incentives to encourage safer behavior by both commercial horse riding facilities and those who rent from them.
The majority opinion, however, does not allow this case to reach the jury so that body can balance the rider’s alleged contributory negligence against the commercial stable’s alleged negligence and emerge with a verdict based on comparative negligence principles. That opinion concludes horse-renting facilities do not owe a duty to supply “ideal” horses, a statement with which I agree. Yet earlier in this same opinion the majority holds horse-renting facilities do owe a duty to supply horses which are not dangerous and to warn of the dangerous propensities of the horses they supply, a statement with which I also agree. The question is whether the majority is correct in determining there was not even a triable issue whether this horse had propensities of which Ms. Harrold, the rider, should have been warned.
I am convinced the plaintiffs’ uncontroverted allegations this horse possessed “[an] unstable temperament. . . and/or tendency to throw riders” and that Rolling J had or should have had knowledge of this dangerous disposition (see maj. opn., ante, at p. 587, fn. 2) was enough to create a triable issue. In failing to produce any evidence the horse it rented Mrs. Harrold lacked dangerous propensities Rolling J has failed to controvert this material allegation of the complaint. For summary judgment purposes, the allegation must be accepted as true. (Brown v. Bleiberg (1982) 32 Cal.3d 426, 438 [186 Cal.Rptr. 228, 651 P.2d 815]; Witchell v. De Korne (1986) 179 Cal.App.3d 965, 976-977 [225 Cal.Rptr. 176]; Pena v. W. H. Douthitt Steel & Supply Co. (1986) 179 Cal.App.3d 924, 929-930 [225 Cal.Rptr. 76].)1 If we accept as true the claim this horse had an unstable temperament and/or a tendency to throw riders it is difficult to comprehend how Rolling J’s behavior failed to constitute a breach of the duty it owed Mrs. Harrold. In supplying her a horse with these traits the riding stable at a minimum had a duty to warn her of the horse’s dangerous propensities.
In addition to the uncontroverted allegations in the Harrolds’ complaint, which were enough by themselves to create a triable issue, there was *592evidence in the record the horse had bucked a rider a short time before Ms. Harrold’s fateful ride and under circumstances almost identical to those which led to her fall.
Under California law, it was not necessary for the Harrolds to raise a triable issue this particular horse was vicious or dangerous to all riders nor that Rolling J possessed actual knowledge of the horse’s nature. It was enough there be a triable issue the horse was unsuitable for the purpose of trail rides by amateur riders and the stable had not taken reasonable care to ascertain this fact. As our Supreme Court has held more than once, “[I]n a contract of hiring of a horse for riding purposes, . . . there is contained an implied warranty to the rider that the stablekeeper knows or has exercised reasonable care to ascertain the habits of the horse and that the animal is safe and suitable for the purpose for which the keeper hires the horse to the renter thereof.” (Kersten v. Young (1942) 52 Cal.App.2d 1, 6 [125 P.2d 501], italics added; Palmquist v. Mercer (1954) 43 Cal.2d 92, 99 [272 P.2d 26], citing Dam v. Lake Aliso Riding School (1936) 6 Cal.2d 395, 399-400 [57 P.2d 1315], italics added.) This general duty is accepted in most jurisdictions. (See Annot., Liability of Owner or Bailor of Horse for Injury by Horse to Hirer or Bailee Thereof (1981) 6 A.L.R.4th 358.)
Consistent with this view, a California appellate court reversed a defense jury verdict because the instructions implied the horse a stable rents must be vicious or mean or untrustworthy in order to violate the duty owed the rider. “That instruction would tend to cause the jury to believe that plaintiff could not prevail unless the horse was vicious. In this respect it was erroneous. The jury could have found that the defendant agreed to furnish a horse that was gentle and easy to handle and that Bull Dog was not such a horse even though he was not mean or vicious or untrustworthy.” (Estes v. Smith (1955) 132 Cal.App.2d 529, 535 [282 P.2d 534].)
This raises a series of questions.
How many riders does a horse get to throw before the animal is deemed to be an inappropriate mount for amateurs taking an afternoon trail ride?
And how many such bucking incidents does it take before the horse’s commercial owner has a duty to warn the unlucky amateur rider about the horse’s proclivities?
And finally, and of special relevance to a summary judgment motion, how many unlucky riders does a plaintiff have to produce at the summary judgment stage to create a triable issue the horse possesses a disposition *593which is incompatible with service on trail rides or at a minimum requires the chosen riders be warned? Isn’t there at least a triable issue that a horse who has spooked and bucked off at least one rider is unsuitable for this purpose?
In this case, moreover, there is more than one instance in the record evidencing this horse’s predisposition to spook and throw riders. There is evidence this horse bucked off two riders in a rather short time span—Ms. Harrold as well as the earlier rider. Don’t these two incidents support an inference the horse had a preexisting predisposition to spook, of which Ms. Harrold and other riders should have been warned? True, the inference of this preexisting predisposition would be stronger if the Harrolds had produced evidence this horse had thrown a dozen riders. But I am not sure a horse has to leave injured riders strewn across the landscape before we can say a triable issue has been created on the question of the animal’s unreliability as a mount for peaceful afternoon trail rides. In my opinion, it does not require such a high degree of proof on this question to survive a summary judgment motion.
Other jurisdictions have found a single prior incident was sufficient to create a jury question as to whether the horse owner violated its duty toward those who later rented or used that horse. (Hahn v. Rockingham Riding Stables (1941) 126 N.J.L. 324 [19 A.2d 191] [nonsuit reversed where plaintiff introduced some evidence horse had suffered a fall under a previous rider before throwing plaintiff even though stable owner denied the previous incident occurred]; Heald v. Cox (Mo.Ct.App. 1972) 480 S.W.2d 107 [one prior bucking incident sufficient to support jury verdict defendant violated duty of care toward rider in failing to warn, etc. even though rider was not thrown off the horse in that prior incident and despite fact defendant was only a social host allowing guest to ride the horse and was not a commercial stable]; see also Westberry v. Blackwell (1978) 282 Ore. 129 [577 P.2d 75, 76] [nonsuit reversed in dog bite case because one prior bite, though not “conclusive” evidence of dangerous propensities, “could reasonably lead a jury to believe that the dog had dangerous propensities, and that the defendants had knowledge of them”].)
Still other states have found sufficient evidence to reach the jury even without proof of a prior incident. “The contention that there was no evidence to take the case to the jury cannot be upheld. It is based on the idea that the plaintiff was thrown by the horse’s bucking, and it was never known to buck before, and that as a dog, before the statutory enactments changing the common-law rule as to scienter was entitled to its first bite, a horse is entitled to its first buck. We cannot agree to this proposition as applied to a *594horse let out by a liveryman for hire.” (Vaningan v. Mueller (1932) 208 Wis. 527 [243 N.W. 419, 420, 421] [jury verdict sustained for violating implicit warranty that horse is suitable for purpose for which rented when horse bucked and threw amateur rider despite lack of evidence the horse had previously bucked]; Dolezal v. Carbrey (1989) 161 Ariz. 365 [778 P.2d 1261] [summary judgment reversed where previously peaceful horse bolted when rider with only two or three previous rides attempted to dismount]; Mateas v. Harvey (9th Cir. 1945) 146 F.2d 989, 992 [quotes Vaningan to effect horse—in this case a mule—does not get a “free buck”].)
It would not seem it should require a greater quantum of evidence to survive a summary judgment motion in California than it takes to survive nonsuit in New Jersey or to sustain a jury verdict in Missouri. A single bucking incident was enough to reach the jury in those states and should be here. Nor should it require more evidence here than it does in the Ninth Circuit or in Arizona or Wisconsin, which do not require proof of any prior incidents.
Not surprisingly, California indeed is in line with these other jurisdictions on this issue. In Dorobek v. Ride-A-While Stables (1968) 262 Cal.App.2d 554 [68 Cal.Rptr. 774], the Court of Appeal held riders need not introduce evidence of any prior incidents of injury or misbehavior by the horse in order to recover from the stable for the injuries they sustained.
In that case, the jury returned a verdict in favor of a rider who had been thrown from her rented horse. On appeal, the defendant stable complained the evidence was insufficient to show it violated its duty to ascertain the horse would be unmanageable or dangerous. The stable pointed to the absence of evidence in the record of any prior incidents where this horse had misbehaved or harmed a rider. Moreover, both the stable owner and an employee testified the horse was gentle, had no bad traits, and never bucked or been the subject of complaints by previous riders. None of this evidence about the horse’s prior history was controverted directly. The plaintiff rider instead relied on two facts: (1) the spirited behavior of the horse during the incident which injured her, and (2) the failure of the stable’s records to reflect reports of riders’ complaints about any horses they rented while conceding such reports had been made about some horses (but not the one involved in this incident).
The appellate court affirmed the jury verdict in favor of the plaintiff rider. It concluded the horse’s behavior on the single occasion in which plaintiff was injured represented ample proof the horse possessed dangerous characteristics. “Certainly if an expert horseman can tell if a horse has dangerous *595characteristics by proper observation of the horse, defendant’s failure to make such observation was negligence, and there was no necessity for plaintiff to establish prior acts of the horse and knowledge thereof by defendant.” (Dorobek v. Ride-A-While Stables, supra, 262 Cal.App.2d at p. 561, italics added.)
n Estes v. Smith, supra, 132 Cal.App.2d 529, the court did not squarely address the question of the sufficiency of the plaintiff rider’s evidence. The court, however, did reverse a jury verdict which had been rendered in defendant’s favor because of instructional error despite the fact plaintiff had only introduced evidence of a single prior incident of misbehavior by the horse who threw him. If the Estes court considered more was required, presumably it would not have bothered to return the case for retrial. And, if one prior incident is enough to support a jury verdict in favor of a rider, it certainly is enough to survive a summary judgment motion.
In sum, I am convinced a triable issue exists for two reasons. First, Rolling J failed to controvert the Harrolds’ allegations this horse was dangerous and threw riders. Alternatively, under California and out-of-state authorities, evidence the Harrolds pointed to in the record was sufficient to create a triable issue not merely that this horse was less than “ideal” but that it possessed a disposition which made it unsuitable for amateur trail riders. The majority opinion itself holds Rolling J owed a duty not to increase the risk above that inherent in the sport of trail riding. There was a triable issue the riding stable violated this duty by supplying Ms. Harrold with this horse and also failing to warn her of its unsuitable tendencies. Accordingly, in my opinion, the summary judgment should be reversed.
The summary judgment statute, Code of Civil Procedure section 437c, was amended in 1992 effective January 1, 1993, to include a new subdivision (n). At least one commentator appears to argue this new provision may require plaintiffs who are opposing a defendant’s summary judgment to introduce evidence in support of their allegations even if the defendant has not introduced evidence controverting those allegations. (Schmalz, Summary Judgment: A Dress Rehearsal for Trial (Sept. 1993) 16 L.A. Lawyer 23.) It would require an in-depth inquiry into the legislative history of the 1992 amendments to 437c before one could accept or reject this interpretation of the ambiguous language of subdivision (n). But there is no reason to consider the effect of 437c, subdivision (n) since this appeal is governed by the summary judgment standard in effect when this motion was decided several years ago.