A New York state court has dismissed the claim of the owner of a thoroughbred, whose horse was injured during a race and subsequently sued for negligence. In so ruling, the court found that the plaintiff assumed the risk of injury.
Phone Home, a thoroughbred race horse owned by plaintiff Zayat Stables, suffered a career-ending injury while participating in the 5th race at Saratoga Springs Thoroughbred Racing Track on August 6, 2007. The track is owned and operated by the defendant New York Racing Association.
Phone Home was assigned to the start race gate with John Velazquez aboard as the jockey. According to the plaintiff, the assistant starter straightened the horse’s head so that the colt’s head was pointed down the track, which the plaintiff claims is the custom and common signal to the head starter that the horse and jockey are ready for the start of the race.
The plaintiff further claims that the head starter wrongly opened the start gate before Velazquez was “tied on” and ready, causing the jockey to be dislodged, thrown and fall from the horse. The horse then took off into a gallop without a rider, and thereafter injured his right knee when he attempted to jump the outer rail of the race track.
The plaintiff sued, alleging that the “starting gate crew,” employed by NYRA, was negligent, causing the starting gate to open when the rider of the plaintiff’s horse was not ready for the start of the race. Furthermore, the plaintiff claimed that the “Assistant Starter” and “Head Starter” failed to follow proper protocols by not waiting until the rider of Phone Home was ready for the start of the race before opening the starting gate.
The NYRA moved for summary judgment, relying on the court of appeals holding in Turcotte v. Fell (68 NY2d 432, 502 N.E.2d 964, 510 N.Y.S.2d 49 [1986]). It specifically argued that the complaint must be dismissed “because the undisputed record conclusively establishes that any hazardous conditions claimed by Zayat to have caused injury to Zayat’s horse were obvious and apparent, which Zayat knew of or should have known of as an experienced professional thoroughbred race horse owner. Therefore, by participating in the thoroughbred horse racing activity leading to the accident with such knowledge, Zayat voluntarily assumed the risk of injuries from those dangers and implicitly gave its informed consent that NYRA owed it no duty of ordinary care with respect thereto, as a matter of law.”
In its analysis, the court noted that “in determining whether a defendant has violated a duty of care to a plaintiff engaged in a sporting activity, the applicable standard should include whether the conditions caused by defendant’s negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport (Morgan v. State, 90 NY2d 471, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997]; Owen v. R.J.S. Safety Equipment, Inc., 79 NY2d 967, 591 N.E.2d 1184, 582 N.Y.S.2d 998 [1992]. Thus, there must be a showing of some negligent act or inaction, referenced to the applicable duty of care owed to the participant by the defendant, which may be said to constitute a substantial cause of the events which produced the injury (Morgan v. State, supra ).”
After examining the arguments, the court concluded that while the “defendant’s negligent conduct may have caused the jockey to fall from the horse at the start gate, it was the horse acting in a sudden and unintended manner when the colt took off into a gallop without a rider and thereafter, unsuccessfully attempted to jump the outer rail of the racetrack that ultimately caused the colt to sustain injury.
“Being thrown from a horse in a horse race, a horse taking off riderless and a horse acting in an unintended manner are all dangers inherent in the professional sport of thoroughbred horse racing. Any injury-causing condition or risks created by defendant’s negligence was neither unique nor created a dangerous condition over and above the usual dangers that are inherent in the sport of horse racing.
Further, it held that the plaintiff’s claim that the defendant’s employees “failed to follow proper protocols by not waiting until the jockey was ready for the start of the race before opening the starting gate is insufficient to raise a triable issue of fact. In order to constitute conduct outside the doctrine of primary assumption of the risk, the conduct must be a flagrant infraction unrelated to the normal method of playing the game and done without a competitive purpose (Turcotte v. Fell, supra ; Barton by Barton v. Hapeman, supra). In this case plaintiff makes no claim that the defendant’s conduct was flagrant, reckless, done without a competitive purpose or intention, and only makes claims of ordinary negligence.
“Furthermore, while it is true that a plaintiff who consents to voluntarily participate in the inherently dangerous sport of thoroughbred horse racing does not waive all rules, infractions and violations of protocol, … a professional participant in a sporting activity is deemed to fully appreciate and understand the usual incidents of competition resulting from the errors in human judgment of officials of the sport, such as referees, stewards, race track employees and personnel, umpires, judges, etc., who are otherwise charged with the responsibility of officiating, controlling, supervising and managing the sporting event, and accepts them.
“Such conduct and actions, including errors in human judgment, by such officials is within the known apparent and foreseeable dangers of the sport, or commonly appreciated risks that ‘flow from participation.’ (Turcotte v. Fell, 68 NY2d 432, 502 N.E.2d 964, 510 N.Y.S.2d 49; Joseph v. NYRA, 28 A.D.3d 105, 809 N.Y.S.2d 526 [2d Dept 2006]).”
Zayat Stables, LLC v. NYRA, Inc.; S. Ct. N.Y., Queens Co.; 26215/08, 2009 NY Slip Op 52353U, 2009 N.Y. Misc. LEXIS 3158; 11/18/09
