Ashcroft v. Calder Race Course, Inc.

• Decision Date: 19 February 1985
• Docket Number: No. 82-2629,82-2629
• Citation: 10 Fla. L. Weekly 466,464 So.2d 1250
• Parties: 10 Fla. L. Weekly 466 David Carl ASHCROFT, Appellant/Cross-Appellee, v. CALDER RACE COURSE, INC., a Florida corporation, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 1250

464 So.2d 1250

10 Fla. L. Weekly 466

David Carl ASHCROFT, Appellant/Cross-Appellee, v. CALDER RACE COURSE, INC., a Florida corporation, Appellee/Cross-Appellant.

No. 82-2629.

District Court of Appeal of Florida Third District.

Feb. 19, 1985.

Rehearing Denied March 27, 1985.

Horton, Perse & Ginsberg and Arnold Ginsberg, Miami, Colodny & Fass, North Miami, Highsmith & Strauss, Miami, for appellant/cross-appellee.

Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for appellee/cross-appellant.

Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.

JORGENSON, Judge.

This appeal requires us to determine whether the defense of express assumption of risk is available within the context of professional horse racing activity within the scope of Blackburn v. Dorta, 348 So.2d 287 (Fla.1977). We conclude that such a defense is available and, for the reasons which follow, reverse the order of the trial judge declining to enter judgment for the defendant. ¹

David Ashcroft, a jockey, suffered catastrophic injuries when his horse, Kentucky Edd, veered across the race course through the seven-furlong exit gap. Ashcroft lost control of the horse and fell to the ground where he was run over by another horse, rendering him a quadriplegic. Ashcroft brought suit against Calder Race Course, Inc. (Calder) for damages alleging that the accident resulted from the negligent placement of the exit gap which he alleged resulted in Kentucky Edd's behavior. The case was tried to a jury which rendered an interrogatory verdict finding Calder negligent, Ashcroft not negligent; finding that Ashcroft had assumed the risk of the danger complained of, and assessing damages. The special interrogatory verdict included the following question regarding assumption of risk:

Question # 4 Did David Ashcroft know of the existence of the danger complained of, realize and appreciate the possibility of injury as a result of such danger; and, having a reasonable opportunity to avoid it, voluntarily and deliberately exposed himself to the danger complained of? X Yes No

The form of the interrogatory verdict was expressly approved by the court in Kuehner v. Green, 436 So.2d 78 (Fla.1983). In addition to the interrogatory verdict, the trial court charged the jury on express assumption of risk pursuant to Florida Standard Jury Instruction 3.8. ² There is abundant evidence in this record supporting the jury's conclusion that Ashcroft expressly assumed the risk.

Ashcroft argues that the court's language in Blackburn limits the defense of express assumption of risk to contractual agreements or contact sports. That view, in our judgment, is too narrow. The Blackburn court clearly contemplated other professional sporting activity when it used the term "such as" when defining those cases in which actual consent exists and the express-assumption-of-risk defense is available. Blackburn, 348 So.2d at 290. The record reflects that, prior to the race which led to Ashcroft's tragic injuries, several meetings occurred between the jockeys racing at Calder and the Calder management. Ashcroft attended one of these meetings following an incident of a substantially similar nature. In fact, Ashcroft was riding Kentucky Edd on the date of that incident. Ashcroft personally asked about the location of the exit gap and inquired whether it was to be changed. He received advices that the gap would be moved at the end of the 1981 racing season. Additionally, there was evidence that That horse racing is a dangerous activity hardly requires citation. Track operators, owners, and jockeys all take certain calculated risks when engaging in the sport of kings. See, e.g., Gulf Stream Park Racing Ass'n v. Miller, 119 So.2d 749 (Fla. 2d DCA), cert. denied, 125 So.2d 872 (Fla.1960). See generally Annot., 87 A.L.R.2d 1179 (1963); Annot., 13 A.L.R.4th 623 (1982), and cases cited therein. The location of the exit gap was open and obvious, well known to Ashcroft. It could hardly be characterized as a latent defect. Ashcroft's reliance on Cole v. New York Racing Ass'n, 24 A.D.2d 933, 266 N.Y.S.2d 267 (App.Div.1965), aff'd, 17 N.Y.2d 761, 270 N.Y.S.2d 421, 217 N.E.2d 144 (1966), is misplaced. The Cole court held that a construction deviation from general custom observed in the building of race track courses for economic reasons established the race track's negligence. No such evidence was adduced in the case below.

Ashcroft knew of the tendency of horses to bolt through exit gaps. Cf. Baker v. Stolley, 155 So.2d 809 (Fla. 1st DCA 1963) (skilled horseman is charged with knowledge of propensities of a spirited horse). Ashcroft, an experienced jockey, admitted his familiarity with the particular horse, the track, and the location of the exit gap.

Calder has met the standard established in Kuehner and properly laid before the jury the question of assumption of risk. The jury having answered that question in the affirmative, Calder is absolved from liability. The trial court, therefore, erred when it failed to enter judgment for Calder. We accordingly reverse and remand with directions that it do so.

Reversed and remanded with directions.

BASKIN, Judge (dissenting).

I disagree with the majority's analysis of the doctrine of assumption of risk, and respectfully dissent.

This appeal and cross-appeal arise from an order granting a remittitur of $5,000,000, or, in the alternative, a new trial on all issues in appellant David Ashcroft's action to recover damages for personal injuries sustained during a horse race at Calder Race Course (Calder). Ashcroft rejected the trial court's reduction of the jury verdict in his favor, triggering the grant of a new trial. On appeal, Ashcroft seeks reinstatement of the $10,000,000 jury verdict, and Calder seeks the entry of a judgment in its favor. I would hold that the giving of an erroneous jury instruction mandates a new trial and would affirm the trial court's decision for reasons other than those advanced by the trial judge. My decision would make it unnecessary to consider the arguments concerning the propriety of the remittitur and the requested judgment in favor of Calder.

David Ashcroft was a jockey. He met tragedy while riding a horse named Kentucky Edd in a seven-furlong race at Calder. Kentucky Edd left the starting gate from the seven-furlong chute and was proceeding toward the inside rail. As the horse passed the end of the extension rail, he swerved or "ducked in" to the left, leaving the racing course and heading back to the barn. Ashcroft lost control of the horse, fell to the ground, and was trampled by another horse. His spine broken, David Ashcroft became a quadriplegic.

Ashcroft sued Calder, alleging that the incident resulted from its negligent placement of the exit gap. The exit gap is an opening in the rail surrounding the race course. Horses are conditioned to use the gap to return to the barn and stable areas following training sessions. Aware that the exit gap signals the route home, horses tend to react to its presence by heading back toward the barn rather than proceeding along the race course. Ashcroft contended that Calder was negligent in placing the exit gap behind the six-furlong pole instead of at the end of the seven-furlong chute. He asserted that the negligent placement caused Kentucky Edd to make a sudden and erratic turn away from the racing path, resulting in Ashcroft's fall and devastating personal injuries.

This cause is fraught with substantive and procedural questions in connection The trial court denied Calder's motion and ruled that assumption of risk was a question for jury determination. The proposed instruction on the defense of assumption of risk was the subject of much dispute at the trial court's charge conference. Calder requested that the jury receive both an instruction and a special verdict interrogatory on assumption of risk. Ashcroft objected to both requests. He argued that implied assumption of risk was no longer a separate defense in Florida, and that express assumption of risk did not apply because he had not participated in a contact sport. Overruling Ashcroft's objections, the trial court gave the challenged instruction on express assumption of risk pursuant to Florida Standard Jury Instruction 3.8, ¹ followed by an instruction that "If the greater weight of the evidence shows that David Ashcroft assumed the risk, then your verdict should be for the defendant, Calder Racecourse, Incorporated."

with the affirmative defense of assumption of risk. At trial Calder asserted that Ashcroft had assumed the risk; Ashcroft contested the validity and application of the defense of assumption of risk under Blackburn v. Dorta, 348 So.2d 287 (Fla.1977). Calder moved for a directed verdict, arguing that Ashcroft's express assumption of the risk of racing from the seven-furlong chute constituted a complete defense which precluded the jury from finding Calder liable.

Lengthy argument ensued over the form of the special verdict interrogatory. Despite Ashcroft's objection, the court approved a verdict form asking the jury to decide whether Ashcroft had assumed the risk. The court then considered the sequence in which the questions pertaining to liability and to assumption of risk would appear on the verdict. The parties ultimately reached a compromise: the first questions related to the negligence of the parties; the next question asked whether Ashcroft assumed the risk; the final question called for a determination of the amount of damages to be awarded.

The jury found ² that Calder was negligent, that Ashcroft was not negligent, that In Blackburn, the Supreme Court of Florida abolished implied assumption of risk as a separate defense and incorporated it into the doctrine of comparative negligence. Implied assumption of risk now merges with the defense of contributory negligence in the determination of relative fault. According to Blackburn, however, express assumption of...