This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS

C3-96-475

Jesaca Boyer,
Appellant,

vs.

Judy VandeKamp, et al.,
Respondents.

Filed July 30, 1996
Affirmed in part and reversed in part.
Toussaint, Chief Judge

Itasca County District Court
File No. C9-94-1113

Susan M. Holden, Sieben, Grose, VonHoltum, McCoy & Carey, Ltd., 900 Midwest Plaza East, Eighth and Marquette, Minneapolis, MN 55402 (for appellant)

Thomas M. Countryman, 755 Curfew Street, St. Paul, MN 55114 (for appellant)

Charles R. Powell, Powell & Powell, 713 Beltrami Avenue, P.O. Box 908, Bemidji, MN 56619-0908 (for respondents)

Considered and decided by Huspeni, Presiding Judge, Toussaint, Chief Judge, and Short, Judge.

U N P U B L I S H E D O P I N I O N

TOUSSAINT, Chief Judge

Appellant Jesaca Boyer challenges the trial court's grant of summary judgment to respondent Juldie Eckstrom on Boyer's negligence claim against Eckstrom and Eckstrom's mother, Judy VandeKamp. VandeKamp filed a notice of review challenging the trial court's denial of summary judgment in her favor. Because we conclude that neither Eckstrom nor VandeKamp owed Boyer a legal duty of care, we affirm as to Eckstrom and reverse as to VandeKamp.

D E C I S I O N

On appeal from summary judgment, this court must determine whether there are any issues of material fact and whether the trial court erred in its application of the law. Niccum v. Hydra Tool Corp., 438 N.W.2d 96, 98 (Minn. 1989). We view the evidence in the light most favorable to the non-movant, resolving all factual inferences in favor of the non-movant. Grondahl v. Bulluck, 318 N.W.2d 240, 242 (Minn. 1982); Wagner v. Schwegmann's Southtown Liquor, Inc., 485 N.W.2d 730, 733-34 (Minn. App. 1992), review denied (Minn. July 16, 1992).

Boyer argues Eckstrom and VandeKamp's, negligence caused her to fall from a horse. A prima facie case of negligence includes the following elements:

(1) duty; (2) breach of that duty; (3) that the breach of the duty be the proximate cause of the injury; and (4) damages.

Minneapolis Employees Retirement Fund v. Allison-Williams Co., 519 N.W.2d 176, 182 (Minn. 1994) (citation omitted). Whether a legal duty exists is generally a question of law. Yunker v. Honeywell, Inc., 496 N.W.2d 419, 421 (Minn. App. 1993), review denied (Minn. Apr. 20, 1993). "Duty" is defined as "an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another." Minneapolis Employees, 519 N.W.2d at 182 (citing Rasmussen v. Prudential Ins. Co., 277 Minn. 266, 268-9, 152 N.W.2d 359, 362 (1967). Generally, a person has no duty to act for the protection of another. Restatement (Second) of Torts ' 314A (1965).

The fact that the actor realizes or should realize that the action on his part is necessary for another's aid or protection does not in itself impose upon him a duty to take such action.

Id. "[A]n affirmative duty to act only arises when a special relationship exists between the parties." Harper v. Herman, 499 N.W.2d 472, 474 (Minn. 1993). Historically, this special relationship has been applied to

common carriers, innkeepers, possessors of land who hold it open to the public, and persons who have custody of another person under circumstances in which that other person is deprived of normal opportunities of self-protection.

Id. (citing Restatement (Second) of Torts ' 314A (1965)); see Erickson v. Curtis Inv. Co., 447 N.W.2d 165, 169 (Minn. 1989) (public policy ultimately controls whether duty exists).

After a thorough review of the record we conclude as a matter of law that neither VandeKamp nor Eckstrom had a special relationship with Boyer that would give rise to the existence of a legal duty. At the time of the accident, Boyer was a 20-year-old adult who had no disabilities and was fully capable of protecting herself. See Harper, 499 N.W.2d at 474. She was a social guest at the VandeKamp property and did not pay to ride the horse. Furthermore, it is undisputed that the horse Boyer rode on August 5 had an "easy-going" personality. On these facts, we conclude VandeKamp and Eckstrom had no duty to protect Boyer from the inherent dangers of horseback riding. Id. at 475 (boat owner had no duty to warn passenger of inherent danger of shallow water). Thus, we affirm the grant of summary judgment to Eckstrom and reverse the denial of summary judgment to VandeKamp.

Boyer relies on several cases from other jurisdictions for the proposition that Eckstrom and VandeKamp owed her a duty of care. See, e.g., Dolezal v. Carbrey, 778 P.2d 1261, 1265 (Ariz. App. 1989), review denied (Ariz. Sept. 19, 1989). The majority view among state courts, however, is that a horse owner is not liable under a theory of negligence for injuries the owner's horse causes to a social guest unless the horse has known dangerous propensities that the owner fails to reveal to the guest. See, e.g., Hale v. O'Neill, 492 P.2d 101, 104 (Alaska 1971) (summary judgment granted in favor of owner where guest rider knew of horse's dangerous proclivities); Ennen v. White, 598 N.E.2d 416, 419 (Ill. Ct. App. 1992) (plaintiff injured in fall from horse must allege horse had injurious predisposition to maintain common law negligence action); Wolfe v. Wilkins, 491 P.2d 595, 596-97 (Colo. Ct. App. 1971) (horse owner not liable as a matter of law for injuries to guest where horse was "good horse"); O'Brien v. Gateway Stables, 231 P.2d 524, 525 (Cal. Ct. App. 1951) (horse owner not liable for injuries to guest rider where horse had previously shown only "kind and docile" disposition). Applying the majority view to this case, Boyer could not claim that respondents failed to warn her of the horse's dangerous propensities because the horse she rode was "easy-going." See Macho v. Mahowald, 374 N.W.2d 312, 314 (Minn. App. 1985) (host has duty to warn guest of horse's known dangerous propensities), review denied (Minn. Nov. 4, 1985).

Finally, we also conclude that under the facts of this case VandeKamp and Eckstrom are relieved from any duty they may have otherwise owed Boyer under the theory of primary assumption of the risk. The elements of primary assumption of the risk include whether the plaintiff had

(a) knowledge of the risk; (b) an appreciation of the risk; and (c) a choice to avoid the risk but voluntarily chose to chance the risk.

Andren v. White-Rodgers Co., 465 N.W.2d 102, 104-05 (Minn. App. 1991), review denied (Minn. Mar. 27, 1991). As an adult, Boyer knew and appreciated the risks inherent in horseback riding, an activity that she had engaged in before. See Baber v. Dill, 531 N.W.2d 493, 496 (Minn. 1995) ("[N]o one needs notice of what he knows or reasonably may be expected to know."). The facts also show that she specifically had the opportunity to avoid the risk but chose not to do so: when Boyer was having problems with her horse continually stopping to eat grass during the ride, Eckstrom asked her whether she wished to terminate the ride, but she chose to continue. In choosing to go horseback riding and in continuing to ride even after she encountered problems, Boyer assumed the risks of that activity.

Affirmed in part and reversed in part.