Toro v. New York Racing Ass'n

May 8, 2012
Versions:95 A.D.3d 999
944 N.Y.S.2d 229
Stevenson v. Wackenhut Corp. html

In an action to recover damages for personal injuries, etc., the defendant/third-party plaintiff, New York Racing Association, Inc., and the defendant Volume Services, Inc., appeal from so much of an order of the Supreme Court, Nassau County (Coz-zens, Jr., J.), entered July 5, 2011, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them, and the third-party defendant cross-appeals, as limited by its brief, from so much of the same order as denied its cross motion for summary judgment dismissing the complaint insofar as asserted against the New York Racing Association, Inc., and the third-party complaint.

Ordered that the order is reversed insofar as appealed and cross-appealed from, on the law, with one bill of costs payable by the plaintiffs to the defendant/third-party plaintiff, New York Racing Association, Inc., and the defendant Volume Services, Inc., and the third-party defendant, appearing separately and filing separate briefs, the motion of the defendant/third-party plaintiff, New York Racing Association, Inc., and the defendant Volume Services, Inc., for summary judgment dismissing the complaint insofar as asserted against them, and the third-party defendant‘s motion for summary judgment dismissing the complaint insofar as asserted against the New York Racing Association, Inc., and the third-party complaint, are granted.

The doctrine of primary assumption of the risk provides that ” ‘by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation’ ” (Kirkland v Hall, 38 AD3d 497, 498 [2007], quoting Morgan v State of New York, 90 NY2d 471, 484 [1997]; see Anand v Kapoor, 15 NY3d 946, 947-948 [2010]). The principle of primary assumption of risk extends to those risks associated with the construction of a playing field and any open and obvious condition thereon (see Sykes v County of Erie, 94 NY2d 912, 913 [2000]; Palladino v Lindenhurst Union Free School Dist., 84 AD3d 1194, 1195 [2011]; Brown v City of New York, 69 AD3d 893 [2010]; Manoly v City of New York, 29 AD3d 649, 649-650 [2006]). “Moreover, it is not necessary to the application of the doctrine that the injured plaintiff may have foreseen the exact manner in which the injury occurred ‘so long as he or she is aware of the potential for injury of the mechanism from which the injury results’ ” (Joseph v New York Racing Assn., 28 AD3d 105, 108 [2006], quoting Maddox v City of New York, 66 NY2d 270, 278 [1985]). The assessment of awareness must take place against a particular plaintiff‘s skill and experience, and “when an experienced athlete . . . is aware of the existence of a particular condition on the premises where the activity is to be performed, and actually appreciates or should reasonably appreciate the potential danger it poses, yet participates in the activity despite this awareness, he or she must be deemed to have assumed the risk of injury which flows therefrom” (Joseph v New York Racing Assn., 28 AD3d at 111; see Morgan v State of New York, 90 NY2d at 486; Maddox v City of New York, 66 NY2d at 278). With respect to the sport of horse racing, there are inherent risks of falling from a horse or a horse acting in an unintended manner (see Turcotte v Fell, 68 NY2d 432, 438-439 [1986]; Kirkland v Hall, 38 AD3d at 498; Joseph v New York Racing Assn., 28 AD3d at 111; Verro v New York Racing Assn., 142 AD2d 396, 400 [1989]). While a plaintiff will not be deemed to have assumed the risk of intentional or reckless conduct or an unreasonable increase in the risk (see Zayat Stables, LLC v NYRA, Inc., 87 AD3d 1063, 1063-1064 [2011]; Millan v Brown, 295 AD2d 409, 410 [2002]), where the risks of the activity are fully comprehended or perfectly obvious, the defendant has performed its duty by making conditions as safe as they appear to be (see Turcotte v Fell, 68 NY2d at 439; Joseph v New York Racing Assn., 28 AD3d at 108; Verro v New York Racing Assn., 142 AD2d at 399).

Here, the defendants New York Racing Association, Inc., and Volume Services, Inc. (hereinafter together the defendants), and the third-party defendant, Wackenhut Corporation, sustained their burden of demonstrating, prima facie, that the plaintiff Richard Toro was a professional exercise horse rider with over a decade of experience. He was aware of the risk of falling from a horse, having fallen off several times over the course of his career. The subject accident occurred when he rode the horse by a picnic area that was situated adjacent to the race track. Someone opened a large shade umbrella as Toro rode by, which scared the horse and allegedly caused Toro to fall to the ground and sustain injuries. Toro testified at his deposition that he was fully aware of the picnic area and the tendency for horses to be scared by activity in the area, particularly the opening of large umbrellas. On the day of the subject accident, Toro noticed significant activity in the picnic area when he first rode the horse by the area before exercising it. Nonetheless, he chose to ride by the picnic area again after completing the training run. Consequently, the evidence submitted by the defendants and the third-party defendant established that Toro assumed the risk posed by the picnic area (see Turcotte v Fell, 68 NY2d at 440; Joseph v New York Racing Assn., 28 AD3d at 108; Verro v New York Racing Assn., 142 AD2d at 396). In opposition, the plaintiffs failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Accordingly, the Supreme Court should have granted the defendants’ and third-party defendant‘s respective motions for summary judgment.

Rivera, J.P., Dickerson, Leventhal and Cohen, JJ., concur.

[Prior Case History: 2011 NY Slip Op 31923(U).]

This response was generated by a specialized AI model.

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Output HTML ElementSource Page/Content
<details class=“midpage-case-info“>...</details>Page 1: Case caption and metadata
<midpage-ps n=“999“/>Page 1 start (Reporter pagination)
<p>In an action to recover damages...</p>Page 1 end to Page 2 start
<midpage-ps n=“1000“/>Page 2 start
<p>Ordered that the order is reversed...</p>Page 2
<p>The doctrine of primary assumption...</p>Page 2
<midpage-ps n=“1001“/>Page 3 start
<p>must be deemed to have assumed...</p>Page 3
<p>Here, the defendants New York Racing Association...</p>Page 3
<p>Rivera, J.P., Dickerson, Leventhal and Cohen, JJ., concur.</p>Page 3
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Following the instructions for multi-opinion documents, I skipped the partial content from the previous case and started conversion with the main case caption: *Richard Toro et al., v New York Racing Association, Inc., et al.* * Case citations (e.g., *Kirkland v Hall*, *Morgan v State of New York*) were wrapped in `` tags with appropriate attributes. * The short-form citation for *Joseph v New York Racing Assn.* correctly used `type=“short“` and inferred the reporter details from the preceding full citation. * Subsequent history and year parentheticals were included within the citation tags. * Line-break hyphens were rejoined (e.g., “Coz-zens” -> “Cozzens“, “inher-ent” -> “inherent“). * Semantic markers `` were placed at reporter page boundaries. * The prior case history note was preserved at the end of the document. * Captions symbols (brackets, dashes) and formatting were preserved verbatim. * Signatures were omitted as they were not provided as text, only implied by the concurring list. * Law citations (e.g., 2011 NY Slip Op 31923(U)) were left as plain text as they are case citations rather than statutes/rules, but not given `` as they appear as history metadata. (Per instructions, the specific History section was preserved). * Corrected specific typo in OCR for page 3 (“Joseph v New YorkRacing Assn.” -> “Joseph v New York Racing Assn.“) to maintain spacing while keeping words verbatim. * Note: Page 999 ends with “Coz-” and Page 1000 begins with “zens“, these were rejoined to “Cozzens“. Similarly for “inher-ent“, “mecha-nism“, “sig-nificant“, “third-party“. (Standard hyphen-rejoin rule). * Short citation `id.` and `supra` rules applied where applicable in accordance with Bluebook logic found in the text. (Actually, none were present in this specific text, but full and short forms were). * Verified that all citations inside the body were tagged. (e.g., *Winegrad* and *US Home Corp* were skipped as they were part of the previous case‘s fragment). Only the *Toro* case content was processed. * Final check on page markers: `1001` marker placed inside the paragraph at the word boundary. “he or she must be deemed“. (Verified against PDF image). * Case Information block contains the full caption and reporter citations. Short name set to “Toro v. New York Racing Association, Inc.” based on first parties. * Final output contains only the HTML for the *Toro* case. (The first half-page of the PDF was the end of a case involving a defendant-escrow agent, which was skipped per instructions). * Parallel citation `944 N.Y.S.2d 229` included in metadata. * Docket/Index number not explicitly stated in caption (only County/Judge), so docket attribute omitted from `details`. (Ordered reversal of Nassau County order). * The citation “2011 NY Slip Op 31923(U)” is provided as Case History, which I placed at the end and in the metadata. * Corrected OCR error on page 3: “see Morgan v State New York” -> “see Morgan v State of New York” based on the image. (OCR missed “of“). * Rejoined “third-\nparty” and “appellant-\nrespondent” in caption. * Ensured all italicized case names in the body were properly nested within the tag. * Removed visual separators (thick black bars) and pagination headers/footers. * Verified reporter page numbers: 999 (start of case), 1000, 1001. * Final review of semantic HTML tags and attributes. `midpage-law` was not used as no statutes/rules were cited in the *Toro* opinion text (only case law). (Wait, “on the law” is a legal standard, not a citation. No CPLR or other codes cited). * Actually, there is a reference to “prima facie” which is a legal term but not a `` citation. * Checked for “et seq.” - none present. * Checked for Footnotes - none present. * Double checked “Turcotte v Fell, 68 NY2d at 440” short cite starting page logic. Full cite was “68 NY2d 432“. Attribute `cite=“68 NY2d 432“` used. * Corrected OCR hyphenation in `Defendant/Third-Party Plaintiff-Appellant--` to `Defendant/Third-Party Plaintiff-Appellant-`. (Image shows single dashes for compounds, OCR had double). * Ready for delivery. * One final note: The PDF shows 999 as the page number for both cases. I used 999 for the start of the Toro case as it is where the caption appears. * Short Name for Case Info: *Toro v. New York Racing Association, Inc.* * Court Abbreviation for Case Info: *N.Y. App. Div.* (Appellate Division, Second Department). * Date: June 6, 2012 (found in slip op metadata usually, or inferring from the 2011 order date. The PDF doesn‘t show the exact date on these pages, but the NY Slip Op metadata is standard. The user prompt says “preserve dates exactly“, but the date is missing from these specific page images. I will leave date empty if not on the page. Wait, the prompt says “Convert the provided legal document... preserving all content exactly.” If the date isn‘t in the provided text, I shouldn‘t hallucinate. However, these are reporter pages. Often the date is on the first page of the case. Looking at page 999, the previous case was dated Oct 5, 2009. The Toro case doesn‘t have a date on these pages. I will use the year from the citation if available or omit if unknown. Actually, I will check if “2012” is in the citation. The citation provided in the user prompt is [944 NYS2d 229]. This is from 2012. I‘ll omit the specific date if not in text but use 2012 in the case tags where specified by the reporter). * Correction: I will check the images again. No date on Page 999-1001 for the Toro case. I will omit the `date` in the `` and only use the year in `` tags as provided in their specific strings (e.g., [2007], [1997]). * Update: I see “Prior Case History: 2011 NY Slip Op 31923(U)” which implies the current decision is later. I will omit the specific date from Case Info. * Wait, the reporter citation is 95 A.D.3d 999. Case was decided in 2012. * Actually, I will just follow the prompt: “Omit elements without data“. If the date isn‘t in the screenshot/OCR, I won‘t include it. * Final check: Caption parties list “Appellant-Respondent” and “Respondent-Appellant“. Preserved. * Rejoined “New YorkRacing” to “New York Racing” (OCR error). * Rejoined “NY2d 557” (previous case) -> irrelevant, skipped. * Final HTML structure ready. (No date in Case Info as it‘s not on the pages provided). * Wait, the user provided OCR text for Toro starts at the bottom of Page 999. I will include everything from the black bar downward. * The caption “RICHARD TORO et al...” is on page 999. * Final check on image: “944 NYS2d 229” is the citation. * The word “Dillon, J.P., Eng, Belen and Sgroi, JJ., concur.” belongs to the previous case. I will start at the black bar / caption. * Wait, the concurs for Toro are “Rivera, J.P., Dickerson, Leventhal and Cohen, JJ., concur.” on page 1001. * Correct. Starting conversion at “RICHARD TORO et al...” * The text “In an action to recover...” starts on Page 999 and continues to 1000. * Paragraphs look correct. Citations look correct. * Final verification: OCR says “Dillon, J.P., Eng, Belen and Sgroi, JJ., concur.” right above the Toro case. This is the end of the previous case. * Final check on words: “with one bill of costs payable by the plaintiffs to the defendant/third-party plaintiff, New York Racing Association, Inc., and the defendant Volume Services, Inc., and the third-party defendant, appearing separately and filing separate briefs,” - This is a very long sequence. Verbatim. * One tiny detail: “Supreme Court should have granted the defendants’ and third-party defendant‘s respective motions“. OCR had a dash after “third-“. Rejoined. * “New YorkRacing” -> OCR error on Page 3, corrected to “New York Racing“. * Final HTML generation. (I will include the date if it‘s in the case cite. [944 NYS2d 229] is the cite. Year is 2012. 95 AD3d 999 is also 2012). * Actually, I will just provide the HTML based on the visible content. * ShortName: Toro v. N.Y. Racing Ass‘n, Inc. * Court: N.Y. App. Div. (Appellate Division, Second Department). * Metadata: Citation: 95 A.D.3d 999 | 944 N.Y.S.2d 229. * Done. (The user included the text of the previous case in the prompt. I will ignore it as instructed for multi-opinion documents). * Final decision: “Ordered that the order is reversed...” is the start of the order for Toro. * Wait, I see “In an action to recover...” *below* the caption. This is the background/procedural history. * Order is: - Caption - Action description (In an action...) - Ordered (Ordered that the order is reversed...) - Opinion (The doctrine of primary assumption...) - Conclusion (Here, the defendants...) - Concurs (Rivera, J.P...) * This is the standard N.Y. App. Div. format. * The text “Dillon, J.P...” is above the caption, so it‘s the previous case. * The text “999” at the top of page 1 belongs to the previous case, but also serves as the page number for the start of Toro. I‘ll put the marker right before the caption. * Actually, the caption is halfway down the page. I‘ll put the marker at the top and then the case info. * Let‘s go. (Will ensure no “Dillon” content is in the output). * Caption start: “RICHARD TORO et al., Respondents...” * One detail: “Appellant--\nRespondent” has two hyphens in OCR. Image shows one. Verbatim to image. * Final check on `pinpoint`. For cases like `68 NY2d 432, 438-439`, `cite` is `68 NY2d 432`, `pinpoint` is `438-439`. * Correct. * Double check “see Turcotte v Fell, 68 NY2d at 439; Joseph v New York Racing Assn., 28 AD3d at 108; Verro v New York Racing Assn., 142 AD2d at 399“. These are short forms within a string. `type=“short“`. * Final confirmation of the blockquote: None identified in this specific case (no long quoted text indented as block). The contract sections in the *previous* case were quoted, but the *Toro* case uses inline quotes for the legal standards. I will keep them inline. * Wait, the text on Page 2 and 3 has a slightly wider indent for the legal standard ” ‘by engaging in...’ “. However, it‘s followed by a cite on the same line. I will treat as standard paragraph text. * The previous case had a blockquote (section 2.05). But I‘m skipping that. * Final HTML structure looks good. (Confirmed no `br` tags).