Richoux v. HebertRichoux v. Hebert
In this personal injury action, Dennis Richoux brought suit on behalf of his minor son, Brandon, then age three, who was injured when a horse, racing at Cajun Downs Racetrack, came over the rail and fell on him, resulting in serious injury. The trial judge found negligence on the part of Onil Boudreaux, as operator of the track, and Virgil Vice, owner of the horse, and these two defendants were held liable in solido to the plaintiff in the sum of $100,000 plus medical expenses. The trial judge also found the following defendants free from fault: Clement Hebert, owner of the racetrack; and Larry Begnaud, puller of the starting gates.
From the aforementioned judgment, the plaintiff has perfected the present devolutive appeal alleging the following specifications of error: (1) The trial court erred in finding Clement Hebert was not the operator of the track; (2) The trial court erred in finding Clement Hebert was not vicariously liable for the torts of Onil Boudreaux and Larry Begnaud; (3) The trial court erred in finding that Larry Begnaud was not negligent in opening the starting gates in view of the position of the horse (“Speedy Bar Jack“) and his jockey; (4) The trial court erred in finding that the race track was nоt vested with vices in its original construction and furthermore, the court erred in not finding Clement Hebert liable as designer, builder, owner and maintainer of the track; and (5) The trial court erred in awarding general damages of only $100,000.
The procedural history of the case is as follows: Plaintiff filed suit wherein named defendant was Clement Hebert, owner of Cajun Downs, who was alleged to be negligent in the operation of a dangerously constructed track, releasing the horses before they were ready, failing to keep spectators from entering a dangerous area, and in entrusting the gate opening operation to an inexperienced employee. Hebert third partied Virgil Vice, the owner of the horse which struck the child, alleging that as owner of an animal he is liable for any damages caused by that animal. Vice made plaintiff Dennis Richoux a third party defendant, alleging that he was nеgligent in failing to adequately supervise his minor son. Vice also alleged plaintiff assumed the risk of injury to his son. Plaintiff thereafter amended his petition to name Vice a defendant, claiming he was negligent in starting his horse in the fashion he did. Vice, in turn, made Hebert a third party defendant, making the same allegations originally made by Richoux. Hebert made plaintiff a third party defendant on the basis of the same negligence alleged by Vice in his third party petition
Cajun Downs is what is commonly knоwn as a “country” race track, or “bush” track. It is a straight track approximately one-half mile in length. It can accommodate six horses although at the time of the accident only four horses were racing. The railing is made of 2½ inch drill pipe with a gap between the starting gates and railing used to get the horses onto the track and into the starting gates. This gap is closed before a race by means of a flexible pipe approximately 1½ inches in diameter.
Halfway down the track is a concession stand operated by Hebert.
On Sunday, March 8, 1981, Dennis Richoux took a number of his children to Hebert‘s “Cajun Downs” racetrack. Many children attend the races with their parents, and they generally play in an area to the side of the track near Hebert‘s house, although they are not restricted to this area. Richoux left his children to play with the others, and began watching the races. Some time later, he left the track for 5-10 minutes, and then returned. He walked toward the house, saw his children, and then returned to his truck, which was parked near the starting gates, for cigarettes. Brandon and another of Richoux‘s children apparently followed him.
Meanwhile, a race was about to start. Four horses had entered the starting gates, including Vice‘s “Speedy Bar Jack“, and the sliding pipe gate had been closed. Something was appаrently wrong, for the horses were taken out and reloaded into the gates a second time. The race was apparently delayed when one of the assistant starters was injured. Richoux stopped to watch from a position near the back of the starting gates, while the two children continued to walk back towards the house. The race started, and the horse in the gate nearest the left rail (“Speedy Bar Jack“) immediately veered to the left, went over the sliding pipe, and landed on Brandon, who was some five or six feet behind the rail, away from the track. Brandon had been struck in the head by the hooves of the horse. When his father picked him up, he was motionless, his eyes rolled back and portions of his brain protruded through the shattered skull.
Brandon was rushed to the hospital where his neurosurgeon diagnosed a compound depressed skull fracture with cortical lacerations. Treatment followed. He experienced temporary blindness, a possible seizure, impairment of the hands and legs and a distended abdomen. Subsequently, Brandon was released from the hospital with instructions to take anticonvulsant medication. A cranioplasty later became necessary and was eventually performed at a charitable hospital in Texas. Dr. Rivet, Brandon‘s neurosurgeon, diagnosed permanent brain damаge, however, due to the child‘s age, he was unable to predict the degree of any learning disability.
In addition, Brandon was placed in traction for fracture of the left femur and was later placed in a body cast. He has also seen a pediatric psychiatrist, due to emotional problems related to confinement, and another physician specializing in physical medicine and rehabilitation. As a result of his brain injury, his doctors rеcommend he wear protective head gear when engaged in potentially traumatic activity and he continues to take Phenobarbital to prevent seizures. Other physical disabilities continue, including walking with a limp.
Concerning the responsibility of Virgil Vice as the owner of the horse that injured the child, the trial judge applied the law as set forth in Holland v. Buckley, 305 So.2d 113 (La.1974). In that case it was held that owners are strictly liable for harm caused by their animals and liability may only be escaped by a showing that the harm resulted from some independent cause not imputable to the owner such as fault of the victim, fault of a third person, or a fortuitous event.
Another issue presented at the trial court was whether Vice‘s horse was in a positiоn to start the race when the gates were opened or whether Larry Begnaud, as gate opener was negligent in opening the gate before all the horses and their jockeys were in a proper position to start the race. The trial court was of the opinion that it is ultimately the gate puller‘s responsibility to ascertain that the horses are indeed in a position to safely start the race and found as fact that “Spеedy Bar Jack” was in a reasonable starting position. In reaching this result the trial judge noted that the evidence on the point of whether the horse was ready to start was at best conflicting and contradictory, however, the preponderance of evidence was that Vice‘s horse was in a reasonable starting position when the gates were opened by Begnaud. From this ruling, plaintiff has appealed alleging the trial court erred in finding Begnaud free from fault in starting the race when he did. However, both Boudreaux and Begnaud testified the horses were in starting position when the gate was opened. When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court‘s finding, a reviewing court will not disturb the factual finding on appeal in the absence of manifest error. The trial judge herein was in a better position to evaluate the conflicting testimony and the witnesses’ credibility and we detect no clear error in this ruling. Canter v. Koehring Co., 283 So.2d 716 (La.1973).
Concerning the liability of Onil Boudreaux, this defendant testified he is in charge of operating Cajun Downs racetrack. Although operators are not the insurers of the safety of their patrons, they must conduct their operations in such a way as to not expose the patron to an unreasonable risk of harm, сonsidering the nature of the facilities provided. Dorry v. Lafleur, 387 So.2d 690 (3rd Cir.1980), reversed on other grounds, 399 So.2d 559
Regarding plaintiff‘s contention that Hebert is vicariously liable for Onil Boudreaux‘s negligence, the trial judge found the latter was an independent contractor and, therefore, Hebert was not liable for his acts. The trial judge noted that Boudreaux collected the gate receipts from which he paid his employees and kept 10% for himself. The remainder was distributed to the various horse owners competing on that day. Hebert took no percentage as owner. Furthermore, Hebert did not pay Boudreaux anything for his work in operating the track. The record indicates that certain favors were exchanged between the two men, such as occasional feeding and caring for each other‘s horses. Plaintiff counters by noting that Hebert designed, built and maintains the track which is known as “Clement Hebert‘s Race Track” and it is his only source of income. By deposition prior to trial, Hebert testified “Yes. It‘s me that runs the track ...” Hebert also stated that if a friend wanted to run a race he would allow a race. Also, Hebert sells food and drinks at his concession stand and cleans up the track area. He personally requests that people stand away from the rail when he observes them on the rail. Hebert uses his own tractor to prepare the track surface for the weekend‘s races, owns the stablеs that are used for paddocks, and he has no leases to anyone nor any concession contracts. He pastures and feeds Boudreaux‘s horses at no expense as well as providing stud services for his mares at no charge.
At best, the evidence is conflicting as to the status between Hebert and Boudreaux. It appears their duties and responsibilities were distinct in this “joint venture“. Hebert had only limited control over the work of Boudrеaux and vice-versa. Where, as here, there is conflicting evidence we will not disturb the factual findings of the trial court. Canter v. Koehring, Co., supra.
Plaintiff advanced three theories under which Clement Hebert could be held liable: 1) strict liability under Civil Code Article 2322; 2) basic negligence in the design and operation of the track; and 3) vicarious liability for the negligence of Onil Boudreaux.
The trial judge opined that the strict liability imposed by
“The general rule with regard to places of public amusement is that the proprietor of such a place, to which the public is invited and admission is charged, is under the obligation to use ordinary оr reasonable care or diligence to put and maintain his premises and appliances in a reasonably safe condition for which they are intended and designed.” 4 AM JUR 2d Amusements and Exhibitions, § 53. Liability may be predicated upon his failure to observe and fulfill a duty to inspect and discover the defect and he may be found liable for failure to warn spectators of dangers not known to them. id. at § 54.
“Anyone who invites the public to avail themselves of the use, for аmusement or sport, of property owned or controlled by the invitor or in which he has a financial interest, has a duty to use reasonable care to see that the property is kept in a reasonably safe condition for the use of such invitees. Thus each joint adventurer is liable for the negligence of the other, and for the negligence of persons and agencies employed to accomplish the common purpose.” id. at § 62.
“Horse races are of necessity attended with some risks and danger to spectators, and those who conduct races must take reasonable care to protect spectators from injury. A fair association may be held negligent in failing to properly inclose the track, or in failing to provide a fence of sufficient height to prevent a horse from jumping over it.” id. at § 78.
An owner owes his invitee the duty of reasonаble care which means the obligation of maintaining his premises in a condition reasonably safe for use consistent with the purpose of the invitation including the discovery of reasonably foreseeable conditions which may be dangerous and result in injury, especially where there is time to correct the perilous condition or give warning to the invitee of the danger. Kennedy v. Columbia Gas Co., 174 So.2d 869 (La. App. 1st Cir.1965) and cases cited therein. See also: Archote v. Travelers Ins. Co., 179 So.2d 658, 7 A.L.R.2d 704 (La.App. 4th Cir.1965). In Rosenberger v. Central Louisiana District Livestock Show, Inc., 312 So.2d 300 (La.1975) the Louisianа Supreme Court found that a rodeo supervisor and boss and their corporate employer were negligent in failing to check whether the gate of the rodeo facility was closed and that breach of duty was the proximate cause of injuries to a bareback bronco rider. While recognizing that bareback bronco riding is an extremely dangerous activity and the rider assumes the natural and ordinary risks of the type contest involvеd, the court found that he did not assume the risk of injury from negligent operations or maintenance of rodeo premises. The court further stated that the “occupier of premises used for athletic events or amusements must maintain the premises in a reasonably safe condition and furnish such equipment or services as is necessary to minimize or prevent injury to others from conditions which probably, or forseeably, may cause damage.” 312 So.2d at 305. See also: Dorry v. Lafleur, supra; and Anno., 13 A.L.R. 4th 623.
Compare: Gulf Stream Park Racing Assoc. v. Miller, 119 So.2d 749 (Fla.App.1960); Windeler v. Rush County Fair Assoc., 27 Ind.App. 92, 97, 60 N.E. 954 (1901); Martino v. Park Jefferson Racing Assoc., 315 N.W.2d 309 (S.D.1982).
Having found liability on the basis of negligence, we need not address whether the scope of Article 2322 and accompanying jurisprudence should be extended to a vice in the construction of a racetrack railing.
Persons whose concurring fault has caused injury to another are answerable in solido.
The last remaining issue is whether the plaintiff is entitled to an increase in his award, set by the trial judge at $100,000 plus medical and incidental expenses. In quantum issues, as in other issues, there must necessarily be a degree of uncertainty in predicting the ultimate result in a given case. Accordingly trial judges are vested with much discretion. Our review of the record indicates no manifest abuse of the trial court‘s great discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977).
For the reasons assigned hereinabove, the judgment appealed is reversed in part and amended to cast Clement Hebert liable in solido with Onil Boudreaux and Virgil Vice for plaintiff‘s damages. In all other respects, the judgment appealed is affirmed. Costs of this appeal are to be divided between Richoux, Hebert, Boudreaux, and Vice.
AFFIRMED IN PART, REVERSED AND RENDERED IN PART.