123 Misc. 2d 877 | N.Y. Sup. Ct. | 1984
OPINION OF THE COURT
FACTUAL SETTING
In 1978 plaintiff Ronald J. Turcotte was a professional free-lance jockey who had achieved a certain renown by riding the horse “Secretariat” to victories in all three “Triple Crown” races in 1975. On July 13, 1978 he was aboard “Flag of Leyte Gulf” which started from the third pole position in the eighth race at Belmont Park located in Elmont, Nassau County, New York. Entered in the same race was a horse named “Small Raja” ridden by defendant Jeffrey Fell and owned by defendant David P. Reynolds of the Reynolds Metal Company. “Small Raja” started from the second pole position and a horse named “Walter Malone” was in the fourth gate. Some 50 yards from the start defendant Fell is alleged to have so ridden; “his said horse as to cross and weave his said horse into the path of the horse ridden by plaintiff, impeding plaintiff in his path, and further defendant, Jeffrey Fell, caused his horse to jostle and strike the horse ridden by plaintiff without any fault on the part of plaintiff or his horse and without the
MOTIONS
By separate motions defendants Fell and Reynolds seek summary judgment dismissing the complaint. Defendant Fell contends that while the complaint may be subject to different interpretations the evidence viewed most favorably to plaintiff would support recovery only on a negligence theory. Specifically, he quotes the following from plaintiff’s pretrial deposition:
“Q. So as you sit here today, it is your belief that Jeffrey Fell did not intend to have Small Rajah [sic] make contact with your horse * * * and that the contact was an accident, unintentional, is that correct?
“A. Well, I don’t know how you want to term it. I would term it careless.”
Defendant Fell argues that since professional horse racing is inherently dangerous a jockey’s duty with respect to other jockeys is discharged if he refrains from intentionally causing injury.
background: assumption of the risk
Traditionally injuries sustained by competitors in sporting events have been analyzed in terms of assumption of the risk (Weistart & Lowell, Law of Sports, § 8.02; Comment, 1980 Duke L J 742) and Justice Cardozo’s classic rendering of the policy underlying that “doctrine” is much quoted: “One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball [citations omitted]. The antics of the clown are not the paces of the cloistered cleric * * * The plaintiff was not seeking a retreat for meditation. Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damage to his body
ASSUMPTION OF THE RISK AFTER CPLR 1411
As illustrative of assumption of the risk, Justice Cardozo cited the fencer’s acceptance of risk of injury from his opponent’s thrust and the spectator’s acceptance of the risk of injury from being struck by a batted ball. A possible effect of CPLR 1411 might have been that both the plaintiff fencer and the plaintiff spectator would be entitled to have a jury assess the reasonableness of their conduct should they be injured by the thrust or the batted ball. (See Akins v Glens Falls City School Dist., 53 NY2d 325, 333 [dissenting opn by Cooke, Ch. J.].) However, in Akins v Glens Falls City School Dist. (supra, p 327), the Court of Appeals ruled that CPLR 1411 had no application because: “This case does not involve the ‘culpable conduct’ (CPLR 1411) — be it
In drawing the distinction between the issue of the duty of care owed by the defendant to the plaintiff and the issue of the plaintiff’s own culpable conduct the Court of Appeals echoed many authorities in the field of tort law. “[T]he doctrine [of assumption of the risk] deserves no separate existence (except for express assumption of risk) and is simply a confusing way of stating certain no-duty rules or, where there has been a breach of duty toward plaintiff, simply one kind of contributory negligence.” (James, Assumption of Risk: Unhappy Reincarnation, 78 Yale L J 185, 187-188; Wade, The Place of Assumption of Risk in the Law of Negligence, 22 La L Rev 10.) While the authorities differ in the degree of precision with which the subcategories of assumption of risk may be distinguished, they appear unanimous in differentiating between the risk which the plaintiff reasonably encounters because the benefits to be derived outweigh the danger and the risk which the plaintiff unreasonably encounters because the reward is of insufficient magnitude. (See 2 Harper & James, Torts, p 1162; Prosser, Torts [4th ed], § 68, pp 440-441; Restatement, Torts 2d, §§ 496A-496D.) The former plaintiff relieves the defendant of his duty of care toward the plaintiff with respect to the perceived risk which the plaintiff reasonably encounters because of the benefit to be derived. As to the latter plaintiff, the defendant may have breached his duty of care, but the common law relieved defendant of the consequences of that breach because of the plaintiff’s own negligence in unreasonably encountering a risk because the benefit to be derived was not of sufficient magnitude.
Akins v Glens Falls City School Dist. (supra), appears to hold that CPLR 1411 applies only to the latter plaintiff who has been guilty of “culpable conduct” in encountering
APPLICATION OF AKINS ANALYSIS
Having observed the Court of Appeals handling of the spectator struck by the batted ball in the post-CPLR 1411 context, this court must now apply the same principles to the fencer injured by his adversary’s thrust or, in our case, the injured professional jockey. No reported case has yet applied Akins v Glens Falls City School Dist. (supra) to an injury to a sports participant, but the treatment of such injuries under the assumption of risk analysis is somewhat helpful.
In McGee v Board of Educ. (16 AD2d 99) the First Department confronted a plaintiff injured by an errant throw while coaching a student baseball team. While dismissing the complaint it said: “Generally, the participants in an athletic event are held to have assumed the risks of injury normally associated with the sport [citations omitted]. Players, coaches, managers, referees and others who, in one way or another, voluntarily participate must accept the risks to which their roles expose them. Of course, this is not to say that actionable negligence can never be committed on a playing field. Considering the skill of the players, the rules and nature of the particular game, and risks which normally attend it, a participant’s conduct may amount to such careless disregard for the safety of others as to create risks not fairly assumed. But it is nevertheless true that what the scorekeeper may record as an ‘error’ is not the equivalent, in law, of negligence.” (Supra, at pp 101-102.) The court accepted without question the reasonableness of the participant’s decision to engage in the sport implicitly determining that such decision was in no way negligent or culpable. Certainly, it would be hard to justify a finding that a person who engages in well-known sports
In Santiago v Clark (444 F Supp 1077) the facts were quite similar to those before this court. Plaintiff, a professional jockey, alleged that he was caused to sustain injury by the negligence of the defendant Clark, also a professional jockey, whose horse cut off plaintiff’s horse during a race. In finding that plaintiff had assumed the risk, the court said (p 1079): “Thoroughbred horse racing, by its own nature, is a sport posing great peril to its participants. Up to a dozen horses, each weighing 1000 to 1200 pounds break from a starting point and attempt to gain a preferred position on the rail as the first turn is approached. Astride these horses moving at full speed are persons weighing in the neighborhood of 100 pounds who jockey their mounts for position. In this dash for position, due to both jockey error and to the difficulties in controlling a Thoroughbred
Plaintiff was an experienced, professional jockey, who in 1978 was certainly aware of the inherent dangers of his sport. By participating in it he relieved his fellow participants of their duty of care at least with respect to those dangers normally associated with the sport. He did not, however, relieve them of the duty to refrain from reckless, wanton or intentionally injurious conduct.
CONCLUSION
Under the Akins v Glens Falls City School Dist. (53 NY2d 325, supra) approach the first issue which must be addressed is the nature of the duty owed by defendant Fell to plaintiff. It is not alleged, nor can it be said, that plaintiff himself was negligent, careless or in any way culpable for engaging in his chosen profession. Thus, CPLR 1411 is no more applicable here than with regard to the spectator sitting in an unprotected seat at a baseball game.
However, by engaging in a professional sport with certain known and inherent risks of injury plaintiff implicitly consents to relieve others from any duty to protect him from such risks. Given the never precise meaning of “Assumption of Risk”, theoretically at one time this relieving others of their duty of care might have been called “Assumption of Risk”. However, insofar as a plaintiff acts
Here, by engaging in the activities of a professional thoroughbred jockey, plaintiff reasonably consented to expose himself to certain risks in return for potential and substantial rewards. In so doing he relieved the other jockeys, including defendant Fell, of any duty of care with respect to the known and apparent risks of horse racing, but he did not relieve them of their duty to refrain from reckless, wanton or intentional infliction of injury.
The complaint does not allege, and there is no evidence before this court of wantonness, recklessness or intentional infliction of injury on the part of defendant Fell. Of course, plaintiff had no reason to necessarily anticipate this court’s application of Akins (supra). Accordingly, while the court finds itself constrained to grant defendant Fell’s motion for summary judgment, plaintiff may serve an amended complaint.
Having found that the complaint must be dismissed against defendant Fell, the complaint against defendant Reynolds which rests upon a respondeat superior theory must also fall.
