Levinson v. Owens

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Filed 9/25/09 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Tehama) ---- ELLYN LEVINSON et al., C057565 Plaintiffs and Appellants, (Super.Ct.No. CI56965) v. BERT OWENS et al., Defendants and Respondents. ORDER MODIFYING OPINION AND DENYING REHEARING; NO CHANGE IN JUDGMENT THE COURT: It is ordered that the opinion filed in this case on August 26, 2009, be modified as follows: On page 27, line 17, after the sentence in the paragraph under subheading F, add the following: Contrary to plaintiffs claim, we are not required to credit the opinion of their expert as creating a triable issue of material fact as to whether defendants recklessly increased the risk of harm inherent in horseback riding. In plaintiffs words, their expert 1 opined that when [defendants] put an inexperienced rider . . . on Pistol they recklessly increased riding s inherent risks. However, their expert s opinion is based on the false premise that defendants had a duty to inquire about Levinson s horseback riding experience and to warn and instruct her accordingly. explained, defendants had no such duty. As we have That plaintiffs expert feels otherwise does not create a triable issue of material fact. (See Knight, supra, 3 Cal.4th at p. 313 [ the question of the existence and scope of a defendant s duty of care is a legal question . . . and is an issue to be decided by the court, rather than the jury ]; Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 884 [ experts may not give opinions on matters which are essentially within the province of the court to decide ].) This modification does not change the judgment. The petition for rehearing is denied. FOR THE COURT: SCOTLAND , P. J. NICHOLSON , J. CANTIL-SAKAUYE , J. 2

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