Joseph v. Ny. Racing Assn.

• Decision Date: 07 February 2006
• Docket Number: 2003-10824.
• Citation: 2006 NY Slip Op 00971,809 N.Y.S.2d 526,28 A.D.3d 105
• Parties: GOBIN JOSEPH et al., Respondents, v. NEW YORK RACING ASSOCIATION, INC., Doing Business as BELMONT RACE TRACK, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

28 A.D.3d 105

809 N.Y.S.2d 526

2006 NY Slip Op 00971

GOBIN JOSEPH et al., Respondents, v.NEW YORK RACING ASSOCIATION, INC., Doing Business as BELMONT RACE TRACK, et al., Appellants.

2003-10824.

Appellate Division of the Supreme Court of the State of New York, Second Department.

February 7, 2006.

APPEAL from an order of the Supreme Court, Queens County(Orin R. Kitzes, J.), entered November 3, 2003.The order denied defendants' motion for summary judgment dismissing the complaint in an action to recover damages for personal injuries.

Bee Ready Fishbein Hatter & Donovan, LLP, Mineola (Joshua M. Jemal of counsel), for appellants.

Neil H. Greenberg & Associates, P.C., Westbury (Justin M. Reilly of counsel), for respondents.

OPINION OF THE COURT

MASTRO, J.

This appeal presents us with an opportunity to discuss the principles underlying the doctrine of primary assumption of risk, and to apply those principles to the facts in the matter before us.Upon doing so, we must conclude that the plaintiffs' action to recover damages for personal injuries, based upon the injured plaintiff's fall from a horse on January 23, 1999, at Belmont Race Track, is barred by that doctrine.

As revealed during his lengthy deposition, the plaintiffGobin Joseph(hereinafter the plaintiff) was a highly skilled and experienced professional horse exercise rider, having worked in that capacity from 1972 to 1999.He previously exercised horses outside in the rain, and had fallen from horses on various occasions, some of those falls being attributable to riding on wet, muddy tracks.Before his accident, the plaintiff exercised the subject horse approximately three times per week for "a couple of months" at the Belmont Race Track facility owned by the defendantNew York Racing Association, Inc., doing business as Belmont Race Track (hereinafter NYRA).On the morning in question, the plaintiff was instructed to take the horse to the "jogging barn" on NYRA's premises in order to exercise it.It had rained the previous day, and the jogging barn generally was used during inclement weather.Upon arriving at the barn, the plaintiff observed several puddles on the ground beneath open windows at the far side of the indoor track.The puddles were "a couple of feet" in size.A fellow rider allegedly warned the plaintiff that the barn was not "maintained."The plaintiff proceeded to take the horse for a slow jog through a complete lap around the indoor track.As he did so, he observed a wet area adjacent to the puddles which covered approximately one half of the 16-foot-wide path.His horse slipped on the wet area, but did not fall.Given these circumstances, the plaintiff determined that the area was not acceptable or was dangerous to ride on.Therefore, he decided to go around the track only once more rather than a total of four times as he previously had been instructed.When pointedly asked at his deposition why he decided to take the horse around for a second lap when he knew it would be dangerous to do so, the plaintiff merely responded that he was "just doing what my trainer told me to do," although the trainer was not present at the jogging barn and the plaintiff had already decided not to follow the trainer's earlier directions by taking the horse around the track twice rather than four times.On the second pass through the same area, the horse once again slipped in the same spot.Both the horse and the plaintiff fell to the ground, with the plaintiff sustaining injuries.

The plaintiffs subsequently commenced this action by filing a summons and complaint dated October 29, 2001, which were amended on or about October 30, 2002, setting forth causes of action to recover damages for personal injuries and loss of services.The amended complaint alleged, inter alia, that NYRA was negligent in permitting the indoor jogging track to be in a condition which was "unkempt, wet, soggy and unsafe for the exercising of horses."Issue was joined by the service of the defendants' answer, which asserted, inter alia, the affirmative defense of assumption of risk.

Following extensive discovery, including the taking of the plaintiff's deposition, the defendants moved for summary judgment dismissing the complaint on several grounds, including primary assumption of risk.The defendants contended that by electing to take the horse around the track for a second lap despite his actual awareness of the wet and muddy conditions, the plaintiff, an experienced rider, voluntarily assumed the risk of injury which those conditions presented.

The plaintiffs opposed the motion, arguing that the condition of the indoor track posed unreasonably increased risks which may not have been assumed by the plaintiff's mere act of engaging in the activity of horseback riding.Moreover, the plaintiff submitted his own affidavit in which he suggested, for the first time in the case, that his ability to exit the jogging barn after the first lap may have been impeded by the presence of other horses around him and by the fact that an NYRA security guard controlled the entry and exit of riders.Nevertheless, he admitted that "[a]fter I passed the areas of standing water I came upon the security guard and decided I would slowly take the horse around for one more lap and then go and tell [the trainer] I did two laps instead of four because the exercise barn was not in the proper condition for exercising horses."

The Supreme Court, Queens County, denied the defendants' motion for summary judgment.While acknowledging that the plaintiff was an experienced rider who voluntarily jogged the horse around the indoor track on the day in question, the court reasoned that the plaintiff may not have been fully aware of, and thus may not have assumed, the risks posed by the existence of the wet and muddy condition on a portion of the track.We reverse.

It is difficult to imagine a more compelling set of facts for the application of the doctrine of primary assumption of risk.That doctrine provides that a voluntary participant in a sporting or recreational activity "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"(Morgan v. State of New York,90 NY2d 471, 484[1997])."This includes those risks associated with the construction of the playing surface and any open and obvious condition on it(seeSykes v. County of Erie,94 NY2d 912;Maddox v. City of New York,66 NY2d 270)"(Welch v. Board of Educ. of City of N.Y.,272 AD2d 469, 469[2000][emphasis supplied]).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"(Maddox v. City of New York,66 NY2d 270, 278[1985]).Of course, awareness of the risk is "to be assessed against the background of the skill and experience of the particular plaintiff"(id.;seeMorgan v State of New York, supra at 486).Additionally, while participants in such an activity are not deemed to have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risk (seeMorgan v. State of New York, supra at 485), "[i]f the risks of the activity are fully comprehended or perfectly obvious, [the]plaintiff has consented to them and [the]defendant has performed its duty" by making the conditions as safe as they appear to be (Turcotte v. Fell,68 NY2d 432, 439[1986];seeMarshall v. City of New Rochelle,15 AD3d 456[2005];Restaino v. Yonkers Bd. of Educ.,13 AD3d 432[2004];Dobert v. State of New York,8 AD3d 873[2004];Vecchione v. Middle Country Cent. School Dist.,300 AD2d 471[2002];Verro v. New York Racing Assn.,142 AD2d 396[1989]).

Applying the foregoing principles to the facts of this case, it is clear that the plaintiff assumed the risk of falling from his horse by consciously electing to proceed around the track a second time despite his conceded awareness of the danger posed by the wet area.Indeed, the plaintiff had some 27 years of experience as an exercise rider, knew the dangers of riding on wet and muddy tracks, and had even fallen in the past due to such adverse track conditions.Moreover, upon entering the jogging barn, he saw puddles at the far side of the track, and a fellow rider allegedly warned him that the track had not been maintained.The plaintiff then jogged his mount around the track, observing at close proximity the puddles and a larger wet area surrounding them.As he jogged his horse through this area, the horse slipped and stumbled, and the plaintiff considered the condition unacceptable and dangerous.In fact, he considered the situation so unsafe that he decided to complete only two laps instead of four as the trainer had directed.The puddles and the wet area, while conditions not common to an indoor track, were certainly open and obvious, and were actually observed by the plaintiff during the first lap.Moreover, the plaintiff candidly admitted that he appreciated the risks associated with the conditions before electing to proceed through a second lap.He even experienced the danger firsthand when his horse slipped while jogging around the track the first time.Under these circumstances, the plaintiff clearly assumed the risks associated with riding through the wet portion of the track a second time, and NYRA discharged its duty of care by making the track as safe as it appeared to be.

The foregoing conclusion is compelled by the decision in Turcotte v. Fell(supra).There, a professional jockey was injured when he fell from his horse during a race.He commenced an action against NYRA and others, alleging that NYRA was negligent in "overwatering"(id. at 443) the main track and causing an unsafe "cupping"(id.) condition whereby the wet track surface tended to adhere to the underside of the...