Bouchard v. State

• Decision Date: 30 June 2022
• Docket Number: 533062
• Citation: 206 A.D.3d 1495,171 N.Y.S.3d 250
• Parties: Stephane BOUCHARD et al., Appellants, v. STATE of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

206 A.D.3d 1495

171 N.Y.S.3d 250

Stephane BOUCHARD et al., Appellants,

v.STATE of New York, Respondent.

533062

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: April 27, 2022

Decided and Entered: June 30, 2022

Martin, Harding & Mazzotti, LLP, Albany (Peter P. Balouskas of counsel), for appellants.

Letitia James, Attorney General, Albany (Jonathan D. Hitsous of counsel), for respondent.

Before: Clark, J.P., Pritzker, Colangelo, Ceresia and McShan, JJ.

MEMORANDUM AND ORDER

McShan, J. Appeal from an order of the Court of Claims (Milano, J.) entered March 9, 2021, which granted defendant's motion for summary judgment dismissing the claim.

Claimant Stephane Bouchard sustained several injuries while competing in a harness horse race at the Saratoga Hotel and Casino racetrack. Bouchard was injured when he was ejected from his sulky after his horse, Sporty Big Boy, collided with another horse, Mister Miami, that had fallen during the race. Bouchard and his spouse, derivatively, thereafter brought this claim against defendant to recover damages for injuries sustained by Bouchard in connection with the accident, alleging that the New York State Gaming Commission (hereinafter the Commission) created a dangerous condition when its officials negligently performed their prerace safety inspections, which would have alerted them to the potential danger in allowing Mister Miami to participate in the race. Defendant moved for summary judgment, asserting that claimants failed to show that the regulations created a special duty to racehorse drivers and, alternatively, that the discretionary decision concerning potential disqualification of Mister Miami is entitled to immunity. Defendant further contended that claimants’ action is barred by the doctrine of primary assumption of risk and, alternatively, that there is no evidence that Commission officials had actual or constructive notice of the dangerous conditions. Ultimately, the Court of Claims granted the motion, determining that the Commission was exercising a governmental function in regulating the harness race in which Bouchard was injured and, accordingly, claimants were required to show that defendant owed a special duty to claimants, which they failed to do. This appeal ensued.

Claimants assert that the Commission's oversight of harness racing was a proprietary function and that defendant must therefore be held to an ordinary negligence standard (see Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 425, 972 N.Y.S.2d 169, 995 N.E.2d 131 [2013] ; Feldman v. Port Auth. of N.Y. & N.J., 194 A.D.3d 137, 140, 144 N.Y.S.3d 701 [2021] ). Although claimants did not specifically oppose defendant's summary judgment motion on this basis, the inquiry as to whether a governmental entity is engaged in a proprietary function as opposed to acting in a governmental capacity is a question of law which must be addressed when a negligence claim is brought against that entity (see Goldman & Assoc., LLP v. Golden, 115 A.D.3d 911, 912–913, 982 N.Y.S.2d 519 [2014] ; Vanship Holdings Ltd. v. Energy Infrastructure Acquisition Corp., 65 A.D.3d 405, 408, 884 N.Y.S.2d 24 [2009] ; see also Moore v. Del–Rich Props., Inc., 151 A.D.3d 1817, 1818–1819, 58 N.Y.S.3d 772 [2017] ). We may therefore reach the merits of claimants’ contention.

"A government[al] entity performs a purely proprietary role when its activities essentially substitute for or supplement traditionally private enterprises" ( Applewhite v. Accuhealth, Inc., 21 N.Y.3d at 425, 972 N.Y.S.2d 169, 995 N.E.2d 131 [internal quotation marks and citation omitted]; see Marks–Barcia v. Village of Sleepy Hollow Ambulance Corps, 183 A.D.3d 883, 884, 125 N.Y.S.3d 116 [2020], lv denied 35 N.Y.3d 915, 2020 WL 6142525 [2020] ). "Conversely, a [governmental entity] will be deemed to have been engaged in a governmental function when its acts are undertaken for the protection and safety of the public pursuant to the general police powers" ( Ferreira v. City of Binghamton, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2022 N.Y. Slip Op. 01953, *3 [2022] [internal quotation marks and citations omitted]; accord Santaiti v. Town of Ramapo, 162 A.D.3d 921, 923, 80 N.Y.S.3d 288 [2018] ). "Classification of a particular municipal activity as governmental depends on several considerations, including whether the activity was historically performed by government, whether it is best executed by government and whether it is undertaken for profit or revenue" ( Matter of Karedes v. Colella, 100 N.Y.2d 45, 50, 760 N.Y.S.2d 84, 790 N.E.2d 257 [2003] [citation omitted]; see Drever v. State of New York, 134 A.D.3d 19, 25, 18 N.Y.S.3d 207 [2015] ).

"When the liability of a governmental entity is at issue, it is the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred which governs liability, not whether the agency involved is engaged generally in proprietary activity or is in control of the location in which the injury occurred" ( Miller v. State of New York, 62 N.Y.2d 506, 513, 478 N.Y.S.2d 829, 467 N.E.2d 493 [1984] [internal quotation marks, brackets and citation omitted]; see Trenholm–Owens v. City of Yonkers, 197 A.D.3d 521, 523, 153 N.Y.S.3d 26 [2021] ). "In other words, ‘the determination of the primary capacity under which a governmental agency was acting turns solely on the acts or omissions claimed to have caused the injury’ " ( Turturro v. City of New York, 28 N.Y.3d 469, 478, 45 N.Y.S.3d 874, 68 N.E.3d 693 [2016], quoting Matter of World Trade Ctr. Bombing Litig., 17 N.Y.3d 428, 447, 933 N.Y.S.2d 164, 957 N.E.2d 733 [2011], cert denied sub nom. Ruiz v. Port Auth. of N.Y. & N.J., 568 U.S. 817, 133 S.Ct. 133, 184 L.Ed.2d 28 [2012] ). To this end, "a governmental entity's conduct may fall along a continuum of responsibility to individuals and society deriving from its governmental and proprietary functions and any issue relating to the safety or security of an individual claimant must be carefully scrutinized to determine the point along the continuum that the governmental entity's alleged negligent action falls into, either a proprietary or governmental category" ( P.R.B. v. State of New York, 201 A.D.3d 1237, 1238, 162 N.Y.S.3d 196 [2022] [internal quotation marks, brackets and citation omitted]; see Doe v. City of New York, 67 A.D.3d 854, 856, 890 N.Y.S.2d 548 [2009] ).

The gravamen of claimants’ claim is that Bouchard suffered injuries as a result of the failure of various Commission employees to inspect, observe, evaluate and scratch Mister Miami from the harness race based upon discoverable equipment defects, as well as Mister Miami exhibiting indications prior to the race that he was "lame." To this end, claimants argue that these omissions altogether created an excessively dangerous condition (see Scozzafava v. State of New York, 174 A.D.3d 1109, 1111, 105 N.Y.S.3d 170 [2019] ; T.T. v. State of New York, 151 A.D.3d 1345, 1346, 58 N.Y.S.3d 187 [2017] ). It is evident that the Commission's principal role in harness racing is one of oversight, representative of the broad legislative aims underlying the creation of the Commission (see Racing, Pari–Mutuel Wagering and Breeding Law § 100 et seq . ; 9 NYCRR 4100 et seq. ). Specifically, Racing, Pari–Mutuel Wagering and Breeding Law § 100 states that the purpose of the regulatory structure governing the gaming industry – and, in turn, the Commission – is to safeguard "public confidence and trust" in the gaming industry by, among other things, "ensur[ing], so far as practicable, the exclusion of unsuitable persons or entities from participating in any legalized gaming activity within this state." Moreover, Racing, Pari–Mutuel Wagering and Breeding Law § 301(1) specifically empowers the Commission to "supervise generally all harness race meetings in this state at which pari-mutuel betting is conducted" (see Matter of Ford v. New York State Racing & Wagering Bd., 24 N.Y.3d 488, 497, 999 N.Y.S.2d 826, 24 N.E.3d 1090 [2014] ).

However, the regulations that govern the conduct of the Commission are indicative of its dual role in the sport of harness racing, with aspects of its duties touching upon both proprietary and governmental functions (see Matter of World Trade Ctr. Bombing Litig., 17 N.Y.3d at 446, 933 N.Y.S.2d 164, 957 N.E.2d 733 ). In this respect, certain regulations necessarily require that the Commission's employees play an integral role in the racing operation itself; particularly, inspections concerning the fitness and safety of the participating horses prior to each and every race. For instance, the presiding judge who oversees each harness race is empowered to "[c]ontrol the horses, drivers, grooms and every person or machine engaged in any portion of the racing program" ( 9 NYCRR 4105.6 [e]). The duties of every judge include, among other things, the duty to "[e]xclude from any race, a horse that is improperly equipped, dangerous, unmanageable, unfit to race, or liable to cause accident or injury to another horse or driver in the race or that has fallen upon the track during the program" ( 9 NYCRR 4105.8 [e]). In the case of the paddock judge, there is a specific duty incumbent on that individual to "[s]upervise the inspection of equipment and shoes; and the head and saddle numbers of each horse during warm ups and before the parade" ( 9 NYCRR 4105.9 [c]). Further, the state veterinarian present at each race must "[s]upervise the inspection and examination of every horse when first entered at the race meeting" ( 9 NYCRR 4105.14 [b][1]). The state veterinarian is also charged with observing the training of each horse set to perform, as well as the horses in the paddock and warming up, and examining those horses that appear ill or infirm in order to report to the presiding judge (see 9 NYCRR 4105.14 [b][4], [5]). The ultimate decision on whether to scratch a horse on race day lies with the presiding...