MORRISSEY v. ARLINGTON PARK RACECOURSE LLC.

• Decision Date: 10 September 2010
• Docket Number: No. 1-09-3460.,1-09-3460.
• Citation: 343 Ill.Dec. 636,404 Ill.App.3d 711,935 N.E.2d 644
• Parties: Quentin MORRISSEY, Plaintiff-Appellant, v. ARLINGTON PARK RACECOURSE, LLC, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

404 Ill.App.3d 711

935 N.E.2d 644

343 Ill.Dec. 636

Quentin MORRISSEY, Plaintiff-Appellant,

v.ARLINGTON PARK RACECOURSE, LLC, Defendant-Appellee.

No. 1-09-3460.

Appellate Court of Illinois,First District, Sixth Division.

Sept. 10, 2010.

COPYRIGHT MATERIAL OMITTED.

Mark C. Murnane, O'Connor & Nakos, Ltd., Chicago, IL, for Appellant.

P. Shawn Wood, Brian P. Roche, Josh Jubelirer, Seyfarth Sahw LLP, Chicago, IL, for Appellee.

Justice JOSEPH GORDON delivered the opinion of the court:

This is an appeal from an order by the circuit court entering summary judgment in favor of the defendant, Arlington Park Racecourse, LLC, in an action for premises liability. On June 13, 2004, the plaintiff, Quentin Morrissey, sustained injuries when the horse he was riding fell while exiting a training track on defendant's premises. As a result of this incident, the plaintiff filed a complaint against the defendant, alleging that defendant's negligent maintenance of the premises, namely, permitting standing water and soap to accumulate on the asphalt next to a training track exit, caused the plaintiff's horse to fall as the horse was exiting the training track and resulted in the plaintiff's injuries. The defendant moved for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1005 (West 2002)), contending that the ground conditions, which the plaintiff complained of, namely, the water and soap on the asphalt, were open and obvious, so that the defendant could not reasonably be expected to anticipate that the plaintiff would fail to protect himself against the danger posed by such an open and obvious condition. The defendant also contended that since riding a horse poses an inherent risk of danger, the plaintiff, a professional rider, had assumed the risks attendant to riding the horse on defendant's premises and that defendant therefore owed no duty to the plaintiff.

In arguing against the grant of the defendant's summary judgment motion, the plaintiff conceded that the hazardous condition was open and obvious, but contended that the deliberate encounter exception to the open and obvious rule applied to the facts of his case, so as to permit him to proceed with his cause of action. The circuit court disagreed with the plaintiff and granted defendant's motion for summary judgment. The plaintiff filed a motion for reconsideration but that motion was denied by the circuit court.

The plaintiff now appeals, contending that the trial court erred when it found that the plaintiff had failed to present a cause of action for premises liability. The plaintiff contends that the trial court erroneously concluded that as a professional rider, the plaintiff had assumed the inherent risk of riding a horse, thereby releasing the defendant from any duty to protect him from injuries sustained while riding a horse. The plaintiff also contends that the trial court erred when it refused to apply the deliberate encounter exception to the open and obvious rule to the facts of his case. Specifically, the plaintiff contends that if the court construes the evidence in the pleadings and depositions in the light most favorable to him, there remains an issue of fact as to whether the defendant could have anticipated that the plaintiff would proceed to encounter the known and obvious danger, i.e., the wet and soapy asphalt exit, where, to a reasonable man in the plaintiff's position, the advantages of doing so would outweigh the apparent risk. For the reasons that follow, we reverse.

I. BACKGROUND

The undisputed relevant facts are as follows. The defendant owns, operates and maintains the Arlington racetrack park in the city of Arlington Heights in Illinois. The racetrack park contains two tracks, the main running track, used for races, as well as for training horses, and a smaller track used only for training horses. The smaller training track is a dirt track, with two exits, an east and a west exit. The west exit is a paved path that runs around the entire training track and through the stables, requiring much more time for a rider to take the horse to the stable and back. The east exit, on the other hand, is located immediately adjacent to the dirt training track and next to several horse stables where trainers keep their horses. The path leading from the training track to the east exit is composed of asphalt, so that a horse coming from a training track will immediately step off the dirt and onto the asphalt at the exit. In addition, because trainers wash the horses immediately after their training exercises, using hoses and faucets located on the stables about 50 feet away from the east exit, water runs from those stables, across the asphalt exit path. The water mixes with dirt accumulated on the asphalt from horses exiting the training track before it drains into a ditch next to the training track. On June 14, 2004, the plaintiff was injured when his horse fell on top of him while at this exit.

As a result of this injury, on June 12, 2006, the plaintiff, filed a complaint against the defendant, and several other parties associated with the defendant, who were subsequently voluntarily dismissed from this action and are therefore not party to this appeal. In that complaint, the plaintiff alleged that despite its duty to keep the east training track exit safe, the defendant “carelessly and negligently” caused and permitted this exit to remain in a dangerous condition, by: (1) permitting an “unnatural amount of water to accumulate at the said exit”; (2) failing to remove the water; (3) failing to make a reasonable inspection of the aforesaid premises to prevent the accumulation of water; and (4) failing to warn the plaintiff of the dangerous condition of the said exit. The plaintiff contended that as a direct and proximate result of the defendant's negligent maintenance of the premises, on June 14, 2004, he was injured when the horse he was riding through this exit “slipped and fell.”

On August 17, 2006, the defendant filed its answer and affirmative defenses to the plaintiff's complaint, denying all the allegations therein. The defendant also raised four affirmative defenses, including (1) that the plaintiff had contributed to his own injuries; (2) that the plaintiff had assumed the risk of his injuries; (3) that the injuries were caused by an intervening/superceding cause and not by the defendant's negligence; and (4) that the action was barred by the statute of limitations.

During discovery, the defendant first produced an investigation report detailing the June 12, 2004, incident, completed by racetrack security guard Mike Rolsky, immediately after the incident. According to that report, at about 8:26 a.m., on June 12, 2004, Tony Haynes, the training track outrider ¹ , called 911 to seek assistance for “a rider down near a barn.” Rolsky noted that soon thereafter medical services arrived at the scene and examined the rider, who was identified as the plaintiff. It was determined that the plaintiff sustained a broken femur and he was transported in an ambulance for treatment. According to Rolsky's report, in describing what he had seen, the witness, Haynes, told Rolsky that “the horse reared up and the rider went down, and the horse fell on him.” Rolsky also noted that the conditions were “wet” on the day of the incident and that the plaintiff is “a former jockey” and that he has “broken his femur numerous times before.”

Subsequently, the parties made their mandatory witness disclosures pursuant to Rule 213(f) (210 Ill.2d 213(f)), and the following six witnesses were deposed: (1) the plaintiff; (2) Javier Barajas; (3) Janice Ely; (4) Anthony Petrillo; (5) Dr. Eugene Lopez; and (6) Tim Koertegen.

A. The Plaintiff

The deposition of the plaintiff was taken on September 12, 2007. The plaintiff, 35, is a rider who exercises horses, but not a jockey. He stated that he is originally from Ireland, but that he moved to the United States in 1992 in order to ride horses. Although the plaintiff has never been directly employed by the defendant, he has worked as a horse rider for different trainers and companies that use the Arlington racetrack since 1992. In the past 10 years, he has trained horses at the Arlington racetrack “thousands of times.”

On June 14, 2004, the plaintiff was employed by two trainers, Mike Reavis and Tim Koertegen. ² Reavis trained horses at the Arlington racetrack, while Koertegen trained them at Horizon Farms in Barrington, Illinois. The plaintiff's job was to exercise and train horses by riding them daily according to the instructions he received from the trainers. The plaintiff only rode Thoroughbreds, but the horses he rode for Reavis were generally older.

The plaintiff stated that his day consisted of two shifts. He would spend his morning, at the Arlington racetrack riding Reavis's horses. The plaintiff would typically ride up to 15 horses each morning. He explained that because the Arlington racetrack opened at 5:30 a.m. and closed at 10:30 a.m., he had about a five-hour span to exercise all 15 horses. After finishing his shift at the Arlington racetrack, the plaintiff would head over to Barrington, where from about 11 a.m. to 3 p.m., he would train five or six of Koertegen's horses.

The plaintiff acknowledged that the Arlington racetrack park contained two tracks, but stated that although he had used both, on June 14, 2004, he mostly used the smaller training track. He also stated that although he was aware there were two exits to this smaller training track, he generally used the east exit. With the help of several photographs, the plaintiff described the east exit as being closed in by the stables on one side and by a fence post, dividing the training track from the path, on the other. According to the plaintiff, the stables were large buildings that could accommodate approximately 30 to 70 horses. There was a bathing area right in front of the stables and...