An Illinois state appeals court has reversed a trial court and ruled that a plaintiff’s claim that a horse racing track was negligent when it permitted “standing water and soap to accumulate on the asphalt next to a training track exit,” causing plaintiff’s injury, should survive the race track’s motion for summary judgment.
The incident in question occurred on June 13, 2004, when plaintiff Quentin Morrissey sustained injuries when the horse he was riding fell while exiting a training track at the Arlington Park Racecourse.
The plaintiff alleged that the defendant was negligent in its “maintenance of the premises, namely, permitting standing water and soap to accumulate on the asphalt next to a training track exit, caus(ing) the plaintiff’s horse to fall as the horse was exiting the training track.”
The defendant moved for summary judgment, “contending that the ground conditions, which the plaintiff complained of … were open and obvious, so that the defendant could not reasonably be expected to anticipate that the plaintiff would fail to protect himself against the danger posed by such an open and obvious condition. The defendant also contended that since riding a horse poses an inherent risk of danger, the plaintiff, a professional rider, had assumed the risks attendant to riding the horse on defendant’s premises and that defendant therefore owed no duty to the plaintiff.”
The plaintiff countered that while “the hazardous condition was open and obvious … the deliberate encounter exception” should have applied.
The court granted summary judgment, finding that the “exception” was not applicable and that the plaintiff as a professional rider assumed the risk.
The plaintiff appealed.
The appeals court noted that “it is impossible to conclude, as a matter of law, that the defendant, which was clearly aware that on a daily basis riders used the east exit because of its proximity to the training track, … could not have anticipated that the plaintiff would elect to choose the east exit, despite the dangerous condition there.”
Thus, it found that the circuit court’s decision “to grant summary judgment on the basis of the inapplicability of the deliberate encounter exception was improper.”
The appeals court then turned to the interplay of the “exception” and the primary assumption or risk doctrine, i.e. is “the deliberate encounter exception inapplicable where primary assumption of risk applies?”
The court continued that it could “not find sufficient support to conclude that the primary assumption or risks associated with horse riding would necessarily abrogate the deliberate encounter exception.
“… Moreover, arguably even if the assumption of inherent risks associated with horsemanship would apply to bar the application of the deliberate encounter exception, it would not be applicable to those dangers attributable solely to the defendant’s negligence. See Duffy, 135 Ill. App. 3d at 433 (noting that the risks assumed under the primary assumption of risk doctrine ‘are not those created by [the] defendant’s negligence but rather those created by the nature of the activity itself’); see also Herendeen v. Hamilton, 317 Ill. App. 644, 648, 47 N.E.2d 335 (1943) (holding that the doctrine of assumption of risk did not apply to bar the plaintiff from recovering damages in a negligence action by a racecourse owner, where the horse was injured at the start of the race because a safety pad was not attached to the horse; noting that ‘the plaintiff did not have control of the property nor of the danger to which his horse was exposed. Both of these instrumentalities were entirely under the control of defendant and it was his negligence which resulted in the injuries sustained’); see also Gray, 341 Ill. App. at 532 (noting that although the plaintiff who was a ‘professional jockey,’ ‘assumed the inherent risks of his profession,’ when he fell off an allegedly blind horse that plunged through the outside rail of a fence on the racetrack during a race, the assumption of risk doctrine could have been averted if the plaintiff had presented evidence that the defendant was aware of the horse’s blindness and his failure proximately contributed to the injuries sustained by the plaintiff).
“We disagree with the circuit court’s basis for granting summary judgment in favor of the defendant, since there is no reason to conclude that the risks associated with a puddle of water could proscribe the application of the deliberate encounter exception, where there was at least an issue of fact as to whether the risk was created by the defendant’s negligent maintenance of the premises.”
Quentin Morrissey v. Arlington Park Racecourse, LLC; App. Ct. Ill., 1st Dist., 6th Div.; No. 1-09-3460, 2010 Ill. App. LEXIS 1008. 9/10/2010
Attorneys of Record: (for appellant) Mark C. Murnane, O’Connor & Nakos, Ltd., Chicago IL. ( for appellee) P. Shawn Wood, Brian P. Roche, Josh Jubelirer, Seyfarth Sahw LLP, Chicago IL.
