GOMES, Acting P.J.
Plaintiff Jayne Reizner filed a personal injury lawsuit against property owners Don and Renee Lancaster (the Lancasters), and their property manager, Darlene Avakian, claiming she was injured when a ram butted her after she entered a gated pasture on the property. Reizner asserted she had gone to the property with Avakian so she could take pictures to market the property for sale or lease, and Avakian failed to warn her that the ram was dangerous before she entered the pasture to take pictures. Avakian brought a motion for summary judgment, which the trial court granted after finding the undisputed facts showed that while Avakian, as the property manager, had a duty to use reasonable care, she had no duty to warn Reizner because she did not know the ram was dangerous. We reverse, concluding Avakian failed to meet her burden on summary judgment that she was entitled to judgment as a matter of law.
Reizner was butted by the ram in March 2007. Nearly a year later, in February 2008, Reizner filed a complaint against the Lancasters, alleging causes of action for (1) general negligence, (2) premises liability, (3) strict liability for injury caused by an animal with dangerous propensities, and (4) strict liability for injury caused by a naturally dangerous animal. In October 2008, Reizner amended the complaint to substitute Avakian and Real Estate & Lending Investments in place of Doe defendants, adding them as defendants to the first and second causes of action.
In the cause of action for general negligence, Reizner alleged: "Defendants had a duty to use reasonable care with respect to a ram located on property they owned, maintained or controlled to avoid injury to others. Defendants knew or should have known that the ram had dangerous propensities in that it might attack people. Defendants failed to use reasonable care to avoid injury to others and plaintiff sustained injuries. Defendants' failure to use reasonable care was a substantial factor in causing harm to plaintiff."
In the premises liability cause of action, Reizner alleged that she was at the property as "an invitee of defendants" who "knew the purpose of the visit to the premises was to obtain photos of the property for advertising. Defendants knew plaintiff would be required to go to various outdoor parts of the premises, without defendants present, to obtain the photos. A ram was located on the premises. The presence of the ram on the premises constituted an unreasonably dangerous condition, the danger of which was foreseeable by defendants. The ram attacked and severely injured plaintiff while on the premises. Defendants' negligence and failure to warn was a substantial factor in causing harm to plaintiff." The premises liability claim alleged two grounds for liability: (1) negligently owning, maintaining, managing and operating the property; and (2) willfully or maliciously failing to guard or warn against a dangerous condition. It also alleged that Avakian and Real Estate & Lending Investments were agents and employees of the other defendants and acted within the scope of their agencies.
With respect to the strict liability claims, Reizner alleged, as pertinent here, that "[r]ams can be very aggressive and have been known to cause serious injury, even death, to people. Rams have an unusual dangerous tendency to attack others, primarily by head butting. Head butting is natural behavior for sheep[,]" and that "[a]ttacking others, primarily by head butting, is a natural characteristic of rams."
In April 2010 Avakian filed a motion for summary judgment or, in the alternative, summary adjudication. Avakian asserted the negligent act at issue was her alleged failure to pass on to Reizner an alleged warning from the Lancasters about the danger of the ram. Avakian contended the negligence claim failed because (1) she had no duty to warn Reizner based on the "no duty to aid rule," (2) she had no knowledge of any alleged dangerous condition, and (3) if there was a duty to warn, that duty did not extend to warning about an obvious danger. With respect to the premises liability claim, Avakian contended it failed because (1) she had no knowledge of any alleged dangerous condition, as the Lancasters never advised her the ram was dangerous, and (2) the condition's danger was, or should have been, obvious to Reizner, thereby obviating any duty to warn.
In support, Avakian relied on the deposition testimony of herself and Don Lancaster (Lancaster), as well as the complaint's allegations.
Lancaster testified that when he first retained Avakian he told her "[a]ny and all gates we specified that we wish they would not [go through them] because it would scare the animals and they would run into the fences and hurt themselves and we requested that no clients be brought in there unless we were with them, and it was only to protect the animals." He did not tell Avakian at that time that he felt the animals were dangerous to people going into the pastures, and did not feel the animals were dangerous; instead he was concerned about their safety. In his experience, he had not found sheep to be more aggressive with people than pet dogs. Moreover, Lancaster did not consider his ram, named Boy, to be more aggressive than other rams. He had never seen Boy attack or butt anyone.
Based on this evidence, Avakian argued she was entitled to judgment as a matter of law because Reizner could not establish Avakian owed her a duty. Avakian's separate statement is comprised of the following five facts: (1) "[t]he owners of the rams never warned Avakian that the rams were dangerous"; (2) "[Reizner] was not an employee of [Avakian] on the date of this incident"; (3) "`Rams can be very aggressive and have been known to cause serious injury, even death, to people. Rams have an unusual general tendency to attack others, primarily by head butting. Head butting is a natural behavior for sheep.' Based on that claim in her Complaint, it is clear that any danger posed by rams is part of their `general tendency and natural behavior. . .'"; (4) "Co-defendant Lancaster did not believe that his rams were dangerous"; and (5) "Co-defendant Lancaster had never seen the subject ram attack or butt anyone."
In her opposition to the motion, Reizner recounted her theories of Avakian's liability: (1) in the negligence claim, Avakian had a duty to use reasonable care with respect to the ram located on property she maintained or controlled; and (2) in the premises liability claim, Avakian was negligent in the maintenance, management or operation of the property and in failing to warn Reizner because Avakian knew Reizner would be required to go onto the property without the Lancasters present and the ram posed a dangerous condition. Reizner asserted that Avakian's defense to both causes of action was the same, i.e. that she had no duty to warn because she had no knowledge of any dangerous condition, and argued the defense ignored Avakian's duties as the person in control of the property and the person in charge of restricting access through the gate to the pasture where the ram attacked her.
Reizner contended the sole issue raised by the motion was whether Avakian had a duty to warn her not to enter the pasture. Reizner argued Avakian had such a duty because (1) the management agreement authorized her to control the property, (2) Avakian promised the Lancasters she would not allow anyone into the pasture unless they were present, (3) in the exercise of reasonable care, Avakian should have determined it was not safe for Reizner to go into the pasture where the ram was kept, and (4) while it was obvious to Avakian that it was dangerous to be in close proximity to confined farm animals, the danger was not obvious to her. She also argued there were triable issues of fact that precluded summary judgment, such as whether Avakian warned Reizner not to enter the pasture and whether Avakian told the Lancasters that Reizner was a ranch specialist.
Reizner disputed two of the facts submitted with Avakian's motion, namely that the ram's owners never warned Avakian that the ram was dangerous and that Lancaster did not believe the ram was dangerous, argued it was immaterial whether she was an employee of Avakian and whether Lancaster had seen the ram attack anyone, and stated it was undisputed that rams can be very aggressive, have been known to cause serious injury and death, and have an unusual general tendency to attack others primarily by head butting, which is a natural behavior for sheep.
She also submitted her own facts she claimed were additional material facts in dispute based on the property management agreement and the deposition testimony of herself and Lancaster, along with objections to some of Avakian's evidence. In October 2006, Avakian entered into a Property Management Agreement with the Lancasters which gave her the exclusive right to rent, lease, operate and manage the Lancasters' property located in Merced (the property) from October 27, 2006 to December 27, 2008. The management agreement also gave Avakian the right to make repairs to the property and maintain it, with the Lancasters' prior approval for all expenditures, and to make emergency expenditures without their prior approval if needed to protect the property from damage or prevent injury to persons.
Lancaster testified that a three-year-old ram named Boy, which they kept for breeding, was present on the property along with four or five ewes. In November 2006, the Lancasters moved to Arizona, where they lived until October 2008, when they moved back to the property. When they moved, Lancaster did not put a keyed lock on the back pasture and did not have any type of warning sign at the back gate advising people not to go into the pasture. Lancaster knew rams might become aggressive if they were in rutting season, which occurs mostly in the spring but could be at different times according to their own clocks. He was sure rams might become aggressive if they were protecting females in the flock or were approached by strangers.
According to Lancaster, when they first retained Avakian, she told Lancaster people would be brought out to look at the property. In response, Lancaster told her not to go through the gate into the pasture where Boy was kept, specifically requesting that clients not be brought into the pastures unless the Lancasters were with them as the animals might hurt themselves. Avakian responded that he should not worry because she was "scared of the animal myself," so she would not allow anyone in there. Lancaster said that would be okay "[i]f need be," but he would be happy to go inside with them. While the Lancasters were still living on the property, Avakian brought about four potential buyers to the property. Only one of the potential buyers went into the pastures; Lancaster led the person into the pastures.
Lancaster further testified that in February 2007, Avakian called and told him she was "turning this over to one of my associates in another office that specializes in farm and ranch properties," naming Reizner as that individual. At some point, a decision was made to just lease the property; at that time, the listing stayed with Avakian.
On March 6, 2007, Avakian and Reizner went to the property to take pictures so the property could be marketed for sale or lease. The ram was in the back pasture with other sheep. Lancaster knew they were going to the property, but did not advise them not to go inside the gate. Lancaster testified that in his opinion, Reizner should not have gone inside the gate because "she's a ranch specialist" and no one goes inside someone else's pastures or fields where animals are present because one cannot tell what an animal will do. Lancaster, who was not present on the property, was not positive the ram and sheep were being mated, although he thought they might have been put together to breed.
Reizner testified that she was only a loan officer in Avakian's business, "Real Investments," and was helping set up the business's property management division. The first time she had set foot on the property was March 6, 2007. Avakian went with her to show her around. Reizner petted the horse and sheep that were in the pasture. They rubbed their faces against, and nuzzled, her hand; it appeared to Reizner they enjoyed being petted. Reizner then went inside the pasture so she could get a better picture of the horse barn. Less than a minute later, the ram hit her. According to Reizner, Avakian did not say anything to her about not going into the pasture, such as "not to do that" or "I wouldn't do that."
In reply, Avakian argued she did not owe a duty to Reizner because even if Lancaster knew the ram was dangerous during mating season, he never passed that knowledge along to her or warned her the ram was dangerous, and she was not imputed with the knowledge of the propensities of the farm animals merely because she was the property broker. Avakian also submitted supplemental undisputed material facts for the court's consideration, to which Reizner objected.
At the hearing on the motion, the trial court first gave a tentative ruling, explaining that at issue in the motion was whether Avakian was an agent of the Lancasters by virtue of the management agreement, whether she had a duty to warn of the ram's dangerousness, and under a premises liability theory, whether she should have known of the ram's dangerousness. Based on the evidence, the court believed Avakian was clearly the Lancasters' agent and she did not know the ram was dangerous. Reizner's attorney argued triable issues of fact precluded summary judgment, including whether the ram was dangerous, whether Avakian should have known the ram was dangerous, and whether the danger was so obvious that there was no duty to warn. He further argued that there was a triable issue whether Avakian's false statement to Lancaster that Reizner was a ranch specialist contributed to her injury, since the Lancasters might have warned Reizner had they known she was not a ranch specialist. Avakian's attorney responded that it was undisputed that the Lancasters never told Avakian the ram was dangerous; therefore she had no reason to believe the ram posed any more danger than other farm animals and no duty to warn.
After hearing argument of counsel, the trial court ruled on Reizner's evidentiary objections, sustaining some and overruling others. The trial court also refused to consider the supplemental separate statement Avakian submitted with her reply. The trial court ruled that even considering the fact that Avakian had a duty to use reasonable care as a property manager, there was no evidence she knew the ram was dangerous. The court noted that Avakian did not invite Reizner into the pasture; instead, Reizner decided to go into the pasture on her own, therefore it was speculation to say that because Avakian misrepresented that Reizner was a ranch specialist things would have turned out differently. The court granted summary judgment based upon the fact that even though Avakian had a duty as the property manager, there was no showing she had knowledge of the danger and therefore she did not have a duty to warn Reizner of something of which she had no knowledge.
In its written ruling on the motion, the court stated it had determined there was no triable issue of material fact and Avakian was entitled to judgment as a matter of law because (1) Avakian proferred evidence in support her motion that as a matter of law she had no duty to warn Reizner of the ram's alleged danger, thereby refuting a necessary element of Reizner's causes of action, and (2) Reizner failed to produce evidence in her opposition to establish that a duty did, in fact, exist and failed to raise a triable issue of fact.
A defendant "may move for summary judgment . . . if it is contended that the action has no merit." (Code Civ. Proc., § 437c, subd. (a).)
As the moving party, Avakian "bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact[.]" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) "A burden of production entails only the presentation of `evidence.'" (Ibid.; Evid. Code, § 110.) If Avakian meets this burden, the burden of production shifts to Reizner "to make a prima facie showing of the existence of a triable issue of material fact." (Aguilar, supra, 25 Cal.4th at p. 850.) "[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he [or she] is entitled to judgment as a matter of law." (Ibid.)
"A responding plaintiff has no evidentiary burden unless the moving defendant has first met its initial burden." (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840, italics added.) A moving defendant is not entitled to summary judgment if the undisputed material facts set out in the separate statement are not dispositive of all the claims included in the complaint. (Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1117.)
We review a summary judgment de novo. (Buss v. Superior Court (1997) 16 Cal.4th 35, 60.) We assume the role of the trial court and redetermine the merits of the motion. In doing so, we strictly scrutinize the moving party's papers so that all doubts as to whether any material triable issues of fact exist are resolved in favor of the opposing party. (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562.) Because summary judgment is a drastic procedure which denies the adversary party a trial, "[a motion] should be granted with caution." (Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1305.)
Reizner alleged two causes of action against Avakian: negligence and premises liability. To recover for negligence, a plaintiff must demonstrate the defendant owed the plaintiff a legal duty, breached that duty, and that the breach was a cause in fact of the plaintiff's injuries. (Gordon v. Havasu Palms, Inc. (2001) 93 Cal.App.4th 244, 252.) Premises liability is a form of negligence, in which an owner has a duty to exercise ordinary care in managing his or her property to avoid exposing persons to unreasonable risk of harm. Failure to fulfill this duty is negligence. (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.)
As Reizner admits, both causes of action are premised on Avakian's breach of her duty to warn Reizner not to enter the pasture. A possessor of land has a duty to warn an invitee not only of conditions known by her to be dangerous but also conditions which might have been found dangerous by the exercise of ordinary care. (Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20, 27 (Beauchamp).)
In moving for summary judgment, Avakian claimed it was undisputed that she did not know the ram was dangerous because the Lancasters never warned her the ram was dangerous. In support of this assertion, she only offered Lancaster's deposition testimony that: (1) when he retained Avakian in September 2006, he requested she not bring any clients into the pastures to protect the animals; (2) he did not tell her at that time that he felt the animals were dangerous to people who went into the pastures and his concern was for the animals' safety; (3) in his experience he did not find sheep to be more aggressive with people than pet dogs; and (4) he did not consider his ram to be more aggressive than other rams and he had never seen the ram attack or butt anyone.
This testimony is insufficient to show that Lancaster never told her the ram was dangerous. Avakian did not submit her own declaration or deposition testimony stating that she was never told the ram was dangerous. At best, Lancaster's testimony establishes that he did not tell her the ram was dangerous during the conversation in which he advised her not to bring clients into the pasture so the animals would not hurt themselves, that sheep are no more aggressive than pet dogs, and his ram, who had never attacked or butted anyone, was not more aggressive than other rams.
Avakian argues that because Lancaster did not know or have reason to believe the ram was dangerous, there was no way she could have known the ram was dangerous. Avakian's evidence, however, does not establish that Lancaster did not know or have reason to believe the ram was dangerous. While he testified that he never saw the ram attack or butt anyone, and he did not think the ram was unusually aggressive, he also testified that in his experience rams can become aggressive during rutting season, which sometimes occurs in the spring, and they might become aggressive if they are protecting ewes or are approached by strangers. According to the Restatement Second of Torts, section 518, one who harbors a domestic animal that he does not know or have reason to know to be abnormally dangerous is subject to liability for harm done by the animal if he is negligent in failing to prevent the harm. As explained in the comments to this section, one who keeps the animal is required to know the animal's normal characteristics and therefore is required to "realize that even ordinarily gentle animals are likely to be dangerous under particular circumstances and to exercise reasonable care to prevent foreseeable harm." (Rest.2d Torts, § 518, coms. g and h, pp. 31-32.) Arguably Lancaster, as the owner of the ram, should have known of the ram's characteristics, including that it might become aggressive when approached by strangers or while around ewes. That the ram may not have been abnormally dangerous does not mean that Lancaster was not aware the ram could be dangerous under certain circumstances.
In sum, absent evidence that shows Avakian was never told the ram was dangerous, she did not satisfy her burden of producing evidence to negate an essential element of Reizner's claims, namely that she did not know, and could not have known, that the ram was dangerous.
Avakian contends her knowledge of the ram's propensities is relevant only if she had a duty to warn, and there was no duty to warn here because the ram's dangerousness was open and obvious. Although this issue was raised in her motion for summary judgment, the trial court never reached the issue as it based its ruling solely on Avakian's lack of knowledge of the danger. An appellate court may affirm an order granting summary judgment on a ground not relied upon by the trial court, provided that the parties are first afforded an opportunity to submit supplemental briefing. (§ 437c, subd. (m)(2).) We did not request supplemental briefing here because Avakian did not satisfy her burden of producing evidence to show that the ram's dangerousness was open and obvious.
Under premises liability law, a property owner generally has a duty to keep his or her premises in a reasonably safe condition and to warn those coming onto the property of latent or concealed perils. (Lucas v. George T.R. Murai Farms, Inc. (1993) 15 Cal.App.4th 1578, 1590.) Where, however, a "danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning" and the property owner has no duty to warn of the condition. (Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393.)
The manner by which the obviousness of a danger relates to a property owner's duty of care under California law is unsettled. (Compare Donohue v. San Francisco Housing Authority (1993) 16 Cal.App.4th 658, 665 [stating that the "obvious danger" exception to a landowner's ordinary duty of care has been merged into the doctrine of comparative negligence] with Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 126 ["As a general rule, an owner or possessor of land owes no duty to warn of obvious dangers on the property"].) However, even assuming that a defendant is entitled to summary judgment on a premises liability claim if he presents evidence demonstrating, as a matter of law, that the plaintiff was injured by "a danger . . . so obvious that a person could reasonably be expected to see it" (Krongos, supra, 7 Cal.App.4th at p. 393), Avakian failed to present any such evidence in this case.
Specifically, Avakian did not present evidence that described the pasture in which the ram was kept or the ram itself (such as whether it could easily be identified as a ram). She presented no evidence to show whether the ram clearly was visible given the presence of four or five ewes in the pasture. Even if the ram was visible, she presented no evidence to demonstrate that its dangerousness was apparent. In fact, Avakian testified at her deposition that her refusal to go into the pasture was due to the smell, the horse's large size, and the fact that they were not dressed to go into the pasture. She did not testify that her reluctance to go into the pasture was because of the ram's presence or any dangerous-looking behavior on its part; instead, it had to do with her being uncomfortable around farm animals. This testimony is fully consistent with a latent, rather than an obvious, danger.
Finally, Avakian contends that summary judgment was proper because Reizner assumed the risk of injury when she entered the pasture, as she should have known it could be dangerous to enter a gated pasture in which farm animals were kept. Citing cases that applied the traditional version of the assumption of the risk doctrine, which depended on the plaintiff's subjective knowledge and provided an absolute defense to liability for injuries incurred when a plaintiff voluntarily exposes himself to a known risk, such as Popejoy v. Hannon (1951) 37 Cal.2d 159, 170, Prescott v. Ralph's Grocery Co. (1954) 42 Cal.2d 158, 161-162, and Shahinian v. McCormick (1963) 59 Cal.2d 554, 567, she asserts that Reizner cannot recover unless she proves herself to be free from negligence in failing to discover the danger.
The assumption of risk doctrine, however, is no longer based on the plaintiff's voluntary exposure to a known risk. Rather, under comparative negligence principles adopted in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, the plaintiff's voluntary exposure to a known risk goes to the plaintiff's negligence and is not a complete defense. (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 537, 541 (Neighbarger ); Knight v. Jewett (1992) 3 Cal.4th 296, 308-311 (Knight).) A plaintiff is held to assume the risk of an activity only when a court can decide as a matter of public policy that the defendant did not owe a duty to protect the plaintiff from a particular risk of harm. (Neighbarger, at pp. 537, 541; Knight, at pp. 315-317.)
Here, the trial court found that Avakian did owe Reizner a duty to use reasonable care by virtue of being the property manager. Even if Reizner was negligent in entering the pasture, her negligence is not necessarily a bar to her claims against Avakian. Moreover, as we discussed with respect to the obvious danger defense, Avakian has not presented any evidence to show the danger was so obvious that Reizner was negligent in entering the pasture.
Because Avakian failed to meet her burden of showing that Reizner could not produce evidence to establish that Avakian had a duty to warn Reizner about the ram, the burden never shifted to Reizner to come forward with such evidence and summary judgment should not have been granted because of any failure on her part to do so. Our decision should not be read as an expression of the ultimate merit of any of Reizner's claims. We hold only that Avakian failed to produce affirmative evidence that Reizner will be unable to prove that she had a duty to warn Reizner of the ram's dangerousness.
The judgment in Avakian's favor is reversed. Costs on appeal are awarded to Reizner.
Dawson, J. and Kane, J., concurs.
