Mercurio v. Burrillville Racing Ass'n
| Decision Date | 28 January 1963 |
| Docket Number | No. 10311,10311 |
| Citation | 187 A.2d 665,95 R.I. 417 |
| Parties | John MERCURIO v. BURRILLVILLE RACING ASSOCIATION. Ex. |
| Court | Rhode Island Supreme Court |
Edward I. Friedman, Howard I. Lipsey, Providence, for plaintiff.
Boss, Conlan, Keenan, Bulman & Rice, James C. Bulman, James M. Shannahan, Providence, for defendant.
This is an action of trespass on the case for negligence which was tried to a jury in the superior court. The case is here on the plaintiff's exception to the trial justice's decision directing a verdict for the defendant. Certain other exceptions are set out in the bill of exceptions but since the plaintiff has not briefed and argued them they are deemed to be waived. Williamson v. Williamson, 90 R.I. 233, 157 A.2d 110.
According to the pre-trial order plaintiff was a paying patron at defendant's Lincoln Downs Race Track on March 17, 1959 and it was agreed therein by the parties that he was a business invitee on defendant's premises. Moreover it appears from the undisputed evidence that he was injured there on that date by an automobile operated by an agent or servant of Precision Photo Patrol, Inc., an independent contractor retained by defendant to take pictures of each race from several vantage points around the track. It is also undisputed that defendant had no control over such contractor or the operator of the automobile.
On the view which we take of the issue raised by plaintiff's exception it is not necessary to describe in detail the place at the track where the accident occurred. Suffice it to say that while he was walking across an area between the grandstand and the walking ring plaintiff collided with the automobile. Whether he walked into or was struck by it is in dispute. In any event insofar as defendant is concerned it is of no consequence how such dispute is resolved. Since it had no control over Precision Photo Patrol, Inc. or the operator of the automobile defendant could not be charged with the operator's negligence, if any, under the principle of respondeat superior.
Apparently the theory of plaintiff's case was founded upon his view that the operation of an automobile in the area across which patrons were invited to walk from the grandstand to the walking ring to see the horses before each race rendered the area unsafe for such purpose. Accordingly he framed his declaration in two counts.
The first count alleges in substance that it was defendant's duty to provide its patrons with a safe place for observing the horses in the walking ring; that it breached such duty in allowing a motor vehicle to be operated in the vicinity of the ring; and that it knew or should have known the operation thereof rendered the area around the ring unsafe. There is no evidence in the record tending to prove this count. The mere fact that an automobile was being operated in this area did not make the place unsafe, although the manner of its operation might well do so. Unless defendant knew or reasonably should have known that automobiles were being operated there in a careless manner to the imminent danger of its invitees rightfully walking across the area to or from the ring, it could not be charged with a breach of the duty as alleged by plaintiff in this count.
The defendant owed a duty...
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