Ashcroft v. Calder Race Course, Inc.

• Decision Date: 10 July 1986
• Docket Number: No. 66934,66934
• Citation: 11 Fla. L. Weekly 307,492 So.2d 1309
• Parties: 11 Fla. L. Weekly 307, 11 Fla. L. Weekly 322 David Carl ASHCROFT, Petitioner, v. CALDER RACE COURSE, INC., Respondent.
• Court: Florida Supreme Court

Page 1309

492 So.2d 1309

11 Fla. L. Weekly 307, 11 Fla. L. Weekly 322

David Carl ASHCROFT, Petitioner, v. CALDER RACE COURSE, INC., Respondent.

No. 66934.

Supreme Court of Florida.

July 10, 1986.

Rehearing Denied Sept. 12, 1986.

Barry Richard of Roberts, Baggett, LaFace & Richard, Tallahassee, for petitioner.

Diane H. Tutt of Blackwell, Walker, Fascell & Hoehl and James C. Blecke, Miami, for respondent.

SHAW, Justice.

We have for review Ashcroft v. Calder Race Course, Inc., 464 So.2d 1250 (Fla. 3d DCA 1985), because of conflict with the decisions of this Court in Kuehner v. Green, 436 So.2d 78 (Fla.1983), and Blackburn v. Dorta, 348 So.2d 287 (Fla.1977). We have jurisdiction under article V, section 3(b)(3), Florida Constitution, and quash the decision under review.

Petitioner Ashcroft, a jockey racing at Calder Race Course, was injured when his horse veered across the race course and toward an exit gap. He lost control, fell to the ground, and was run over by another horse, rendering him a quadriplegic. He sued respondent Calder Race Course, Inc. for damages, alleging that Calder's negligent placement of the exit gap caused the accident and his resultant injury. The trial court, over Ashcroft's objection, instructed the jury on assumption of risk. The jury rendered a verdict finding Calder negligent and Ashcroft not negligent, but finding that Ashcroft had assumed the risk of the danger of which he complained. Damages of $10,000,000 were assessed. The trial court denied Calder's motion for judgment on the verdict in its favor and found Calder liable, but upon motion deemed the verdict excessive and granted Calder's motion for remittitur or, in the alternative, a new trial. The award reduced to $5,000,000 was declined by Ashcroft, and the cause was therefore subject to a new trial. On appeal, the district court found abundant evidence supporting the jury's finding that Ashcroft assumed the risk and reversed the trial court's order in failing to enter judgment for Calder.

This Court rejected the doctrine of contributory negligence as a complete bar to a plaintiff's recovery from a defendant whose negligence contributed to his injury in Hoffman v. Jones, 280 So.2d 431 (Fla.1973). We rejected the doctrine of implied assumption of risk as a complete bar to a plaintiff's otherwise meritorious claim for recovery in Blackburn. Blackburn expressly had no effect, however, on the doctrine of express assumption of risk, including "express contracts not to sue for injury or loss which may thereafter be occasioned by the covenantee's negligence as well as situations in which actual consent exists such as where one voluntarily participates in a contact sport." 348 So.2d at 290.

We had occasion to affirm the viability of the doctrine of express assumption of risk in the contact sport setting in Kuehner. We pointed out, however, that

a participant in a contact sport does not automatically assume all risks except those resulting from deliberate attempts to injure. Express assumption of risk, as it applies in the context of contact sports, rests upon the plaintiff's voluntary consent to take certain chances. This principle may be better expressed in terms of waiver. When a participant volunteers to take certain chances he waives his right to be free from those bodily contacts inherent in the chances taken. Our judicial system must protect those who rely on such a waiver and engage in otherwise prohibited bodily contacts.

436 So.2d at 80 (emphasis in original, citation omitted). Assuming that express assumption of risk applies to horse racing, it is clear from the above quotation that express assumption of risk waives only risks inherent in the sport itself. Riding on a track with a negligently placed exit gap is not an inherent risk in the sport of horse racing. We therefore find as a matter of law that there was no express assumption of risk with respect to the negligent placement of the exit gap and it was error for the judge to instruct the jury on assumption of risk.

The owner or occupier of land has a duty to exercise reasonable care for the protection of invitees. Prosser and Keaton, Law of Torts § 61 (5th ed. 1984):

[I]n the usual case, there is no obligation to protect the invitee against dangers which are known to him, or which are so obvious and apparent that he may reasonably be expected to discover them. Against such conditions it may normally be expected that the visitor will protect himself. It is for this reason that it is sometimes held that reasonable care requires nothing more than a warning of the danger. But this is certainly not a fixed rule, and all of the circumstances must be taken into account. In any case where the occupier as a reasonable person should anticipate an unreasonable risk of harm to the invitee notwithstanding his knowledge, warning, or the obvious nature of the condition, something more in the way of precautions may be required. This is true, for example, where there is reason to expect that the invitee's attention will be distracted, as by goods on display, or that after a lapse of time he may forget the existence of the condition, even though he has discovered it or been warned; or where the condition is one which would not reasonably be expected, and for some reason, such as an arm full of bundles, it may be anticipated that the visitor will not be looking for it. In some jurisdictions, it is also true where the condition is one, such as icy steps, which cannot be negotiated with reasonable safety even though the invitee is fully aware of it, when, because the premises are held open to him for his use, it is to be expected that he will nevertheless proceed to encounter it. The jury in such cases may be permitted to find that obviousness, warning or even knowledge is not enough.

Id. (footnotes omitted). Accord Restatement (Second) of Torts § 343A (1965):

Known or Obvious Dangers

(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.

Id. (emphasis supplied).

A landowner who assumes the task of providing the physical facility upon which a sport is to be played has a duty to exercise reasonable care to prevent foreseeable injury to the participants that includes foreseeing that they may risk a known danger in order to participate. If injury occurs due to negligent maintenance of the facility, the landowner may be held liable.

The trial court granted a motion of remittitur reducing the jury award by half to $5,000,000 and ordered a new trial on both liability and damages when petitioner declined the reduced award. ¹ After hearing argument on whether to grant the remittitur, the judge commented

Actually I have taken all of that into consideration, and I take into consideration that Mr. Highsmith's conclusionary argument to the jury was to the effect that he wanted Mr. David Ashcroft to be adequately compensated.

What I am going to do--and I have considered this case day in and day out and many sleepless nights, because I do have a conscience, too, just like you all, and I know your positions in this particular matter.

I also have to consider the defendant, Calder Race Track, as well, and when I consider their degree of negligence and Mr. Ashcroft's negligence, I am of the opinion that I think that an adequate compensatory award would probably be, and I am going to designate the figure of, five million dollars.

I also look at the fact that if he does receive this award, that this sum certainly would adequately compensate him, knowing that his attorneys will probably get 40 percent of that particular figure.

If he wisely invests the remainder of his net, I think that would probably adequately compensate him for the rest of his life.

Therefore, I am going to reduce the figure to $5,000,000.

Later, in the order of remittitur, the court found as follows:

The Court find that the damages awarded by the jury are excessive in the amount of $5,000,000.00. The Court finds that the motion for remittitur filed by the Defendant, "Calder...