Lang v. Silva, 1-98-1927.

• Decision Date: 29 July 1999
• Docket Number: No. 1-98-1927.,1-98-1927.
• Citation: 240 Ill.Dec. 21,715 N.E.2d 708,306 Ill. App.3d 960
• Parties: Danny D. LANG and Linda K. Lang, Plaintiffs-Appellants, v. Carlos SILVA, Crown's Way Farm, Inc., a corporation, Ronald A. Dicicilia, and Gene Cilio, Defendants-Appellees (Regal Five, an unincorporated association, Dean Anderson, Jeff Stran, and Steve Villwock, individually and doing business as Regal Five, Defendants).
• Court: United States Appellate Court of Illinois

715 N.E.2d 708

306 Ill. App.3d 960

240 Ill.Dec. 21

Danny D. LANG and Linda K. Lang, Plaintiffs-Appellants, v. Carlos SILVA, Crown's Way Farm, Inc., a corporation, Ronald A. Dicicilia, and Gene Cilio, Defendants-Appellees (Regal Five, an unincorporated association, Dean Anderson, Jeff Stran, and Steve Villwock, individually and doing business as Regal Five, Defendants).

No. 1-98-1927.

Appellate Court of Illinois, First District, Fourth Division.

July 29, 1999.

Robert B. Patterson, of counsel, Chicago, for Appellants.

Arthur E. Engelland & Angela M. Riccio, Chicago, for Carlos Silva.

Hinshaw & Culbertson, Chicago (Bruce Carmen & Steven Bonanno, of counsel), for Crown's Way Farm, Inc.

Wesley Kennedy, Allison, Slutsky & Kennedy, Chicago; Kennedy, Schwartz & Cure, New York City (Lauren Esposito, of counsel), for Jockey's Guild. Justice HOFFMAN delivered the opinion of the court:

The instant litigation revolves around an accident which occurred on February 19, 1992, during the seventh race at Sportsman's Park racetrack. During that race, the number one horse, ridden by jockey Danny Lang (Lang), fell, resulting in internal and external injuries to Lang. Following the race, Carlos Silva, the jockey of the number two horse, was cited for careless riding, disqualified from the race in question, and suspended from racing for five days. On February 18, 1994, Lang and his wife, Linda Lang, filed an amended complaint against Silva, Crown's Way Farm, Inc. (Crown's Way), Ronald Dicicilia, Gene Cilio, and other parties not relevant to this appeal. The plaintiffs alleged that the fall resulting in Lang's injury occurred when Lang's horse came into contact with the horse ridden by Silva, owned by Crown's Way and Dicicilia, and trained by Cilio. The complaint alleged, in relevant part, theories of negligence, willful and wanton conduct, negligent and/or willful and wanton entrustment, and loss of consortium.

On September 6, 1994, Silva filed a motion to dismiss counts I through IV of the plaintiffs' amended complaint pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1996)). The trial court granted the motion in part, dismissing count I (negligence) and count III (willful and wanton conduct), but allowing the plaintiffs leave to replead those counts. On August 7, 1995, the plaintiffs filed their "Second Amended Counts I-IV" (hereinafter referred to as the second amended complaint). Each of the four counts in the second amended complaint were directed against Silva, Crown's Way, Dicicilia, and Cilio. Count I alleged that Silva's negligence had resulted in the collision during the seventh race and that Crown's Way, Dicicilia, and Cilio were vicariously liable for Silva's negligence. Count III alleged that Silva's willful and wanton conduct caused the collision. Count III also sought recovery against Crown's Way, Dicicilia, and Cilio on theories of vicarious liability and negligent and/or willful and wanton entrustment. Counts II and IV mirrored the theories of liability in counts I and III and asserted claims for loss of consortium on behalf of Linda Lang.

Silva filed a section 2-615 motion to dismiss the plaintiffs' second amended complaint. Crown's Way, Dicicilia, and Cilio also filed a joint section 2-615 motion. The two motions contained essentially the same arguments in support of dismissal, namely that: 1) count I should be dismissed because Lang had voluntarily assumed the risk of injury and because, as a voluntary participant in a contact sport, he was unable to recover damages caused by Silva's negligence; 2) count III should be dismissed because, stripped of its conclusory language, it was insufficient to allege a cause of action for willful and wanton misconduct; and 3) counts II and IV, asserting causes of action for loss of consortium, should be dismissed because they were contingent on findings of liability under counts I and III.

On August 28, 1996, the trial court denied both section 2-615 motions to dismiss, apparently suggesting that a motion to dismiss pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 1996)) would be more appropriate as it would allow the parties to submit factual material about the sport of horse racing in order to enable the court to make a determination as to whether it was a contact sport. Thereafter, Silva, Crown's Way, Dicicilia, and Cilio filed a joint section 2-619 motion to dismiss counts I and II of the second amended complaint, repeating the arguments directed toward those counts in their respective section 2-615 motions.

In support of their motion to dismiss, the defendants submitted a number of affidavits and depositions, a report regarding the number of horse racing related injuries reported in 1995, newspaper articles regarding the dangers of horse racing, and videotapes of the race in which Lang was injured as well as of several days worth of races. Among the affidavits were those of John Giovanni and Heriberto Arroyo, who had been jockeys for periods of 20 and 12 years respectively and ridden in 18,000 and 10,000 races respectively. Giovanni and Arroyo each averred that they had viewed tens of thousands of races. Giovanni estimated that contact between horses occurred in about 95% of the races in which he rode and further stated that he saw contact between horses, including the touching, bumping, and brushing of various parts of the horses' bodies and "clipping of the heels and the like", in nearly every race he viewed. Arroyo averred that he had viewed contact between horses in nearly every race.

The defendants also submitted Silva's deposition, in which he testified that, since beginning his career in the United States in 1978, he had participated in approximately 10,000 races. Asked about the frequency of contact that actually occurs during a race, Silva answered: "Oh, I don't want to say every race; but they have contacts a lot." Silva averred that horses clip heels "all the time" and that "[t]here is a lot of contact in the race." The defendants also submitted the depositions of Juvenal Diaz, Curt Bourque, Eddie Baird, Cilio, and Eric Viox. At the time of their depositions, Diaz, Bourque, and Baird had been jockeys for periods of 26, 13, and 12 years, respectively. Diaz and Baird testified that contact occurs during almost every race, and Bourque testified that it is a common occurrence. Cilio, who had been a trainer since 1987, testified that contact between horses occurs in almost every race. Eric Viox testified that he rode as a jockey in 1975-76 and had been a racing steward in Illinois from 1985 to 1993. Viox testified that there is "some bumping or contact" in "just about every race."

The plaintiffs filed a response to the defendants' motion to dismiss, to which they attached Lang's affidavit. Lang averred that, between 1970 and 1992, he had ridden in approximately 10,000 races, quarterhorse or thoroughbred. According to Lang, "physical contact between horses and riders during a race rarely occurs unless the rider fails to control the horse." He estimated that, during his 22 years of racing, he experienced contact during a race no more than 10 to 20 times per year and that "[c]ontact between riders was not inherent or inevitable, but was rare."

On November 5, 1997, the trial court held a hearing on the defendants' section 2-619 motion. It granted the motion and dismissed counts I and II of the second amended complaint as to all defendants, finding that horse racing is a contact sport falling within the contact sport exception to liability for negligence as defined by our courts. On December 12, 1997, the plaintiffs filed a motion requesting that the trial court enter an order finding that no just reason existed to delay enforcement or appeal of its November 5 order.

On January 23, 1998, Crown's Way, Dicicilia, and Cilio filed a motion for summary judgment as to counts III and IV of the second amended complaint. They argued that they were entitled to entry of summary judgment in their favor for two reasons: 1) they could not be held vicariously liable for Silva's conduct because he was an independent contractor; and 2) the plaintiffs claims of negligent or willful and wanton entrustment of the horse to Silva were not supported by Silva's racing record. In support of their motion for summary judgment, these defendants submitted the depositions of Lang, Silva, Dicicilia, Cilio, Diaz, Baird, Bourque, and Viox; the videotapes of several days worth of racing; and a transcript of Silva's racing history.

In his deposition, Silva testified that he was self-employed. The races he rode in were arranged through his agent. At the time of the race in question, about 30% of the races he rode were for Crown's Way. Crown's Way provided the horse and the silks, but Silva was required to provide his own saddle. Silva testified he was paid 10% of the horse's purse for a first place finish, 5% for a second or third place finish, and $50 per race for anything else. The racetrack bookkeeper would deduct the money due him from the horse's guarantee and pay him. Silva testified that, in general, he would meet with a horse's trainer in the paddock prior to the race. The trainer tells him "how they think the horse is going to run better." Silva further testified, though, that when the gates open, the jockey has to "hold [his] own" and that, despite the trainer's suggestions, he exercises his own best judgment as to how to run the race. The only thing he recalled Cilio saying to him prior to the race in question is "You ride the race and try to do the best." Silva testified that he had been cited for riding violations 11 times in the preceding 15 years. Each of the violations was for careless riding. He also testified that a typical jockey would have more than a few racing violations per year.

In his deposition, Dicicilia testified that one of the reasons he chose Silva to ride his horses was that "throughout the industry Carlos...