Richoux v. Hebert

• Decision Date: 14 December 1983
• Docket Number: No. 83-192,83-192
• Citation: 449 So.2d 491
• Parties: Dennis John RICHOUX, et al., Plaintiffs-Appellants, v. Clement HEBERT, et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 491

449 So.2d 491

Dennis John RICHOUX, et al., Plaintiffs-Appellants, v. Clement HEBERT, et al., Defendants-Appellees.

No. 83-192.

Court of Appeal of Louisiana Third Circuit.

Dec. 14, 1983.

Rehearing Denied Jan. 13, 1984.

Writ Denied March 16, 1984.

Richard C. Broussard of Domengeaux & Wright, Lafayette, for plaintiffs-appellants.

Ronald J. Bertrand, Rayne, Albert L. Boudreau, Jr., Gordon P. Sandoz, II, Jan F. Rowe, Abbeville, for defendants-appellees.

Before DOUCET, LABORDE and KNOLL, JJ.

KNOLL, Judge.

In this personal injury action, Dennis Richoux brought suit on behalf of his minor son, Brandon, then age three, who was injured when a horse, racing at Cajun Downs Racetrack, came over the rail and fell on him, resulting in serious injury. The trial judge found negligence on the part of Onil Boudreaux, as operator of the track, and Virgil Vice, owner of the horse, and these two defendants were held liable in solido to the plaintiff in the sum of $100,000 plus medical expenses. The trial judge also found the following defendants free from fault: Clement Hebert, owner of the racetrack; and Larry Begnaud, puller of the starting gates.

From the aforementioned judgment, the plaintiff has perfected the present devolutive appeal alleging the following specifications of error: (1) The trial court erred in finding Clement Hebert was not the operator of the track; (2) The trial court erred in finding Clement Hebert was not vicariously liable for the torts of Onil Boudreaux and Larry Begnaud; (3) The trial court erred in finding that Larry Begnaud was not negligent in opening the starting gates in view of the position of the horse ("Speedy Bar Jack") and his jockey; (4) The trial court erred in finding that the race track was not vested with vices in its original construction and furthermore, the court erred in not finding Clement Hebert liable as designer, builder, owner and maintainer of the track; and (5) The trial court erred in awarding general damages of only $100,000.

The procedural history of the case is as follows: Plaintiff filed suit wherein named defendant was Clement Hebert, owner of Cajun Downs, who was alleged to be negligent in the operation of a dangerously constructed track, releasing the horses before they were ready, failing to keep spectators from entering a dangerous area, and in entrusting the gate opening operation to an inexperienced employee. Hebert third partied Virgil Vice, the owner of the horse which struck the child, alleging that as owner of an animal he is liable for any damages caused by that animal. Vice made plaintiff Dennis Richoux a third party defendant, alleging that he was negligent in failing to adequately supervise his minor son. Vice also alleged plaintiff assumed the risk of injury to his son. Plaintiff thereafter amended his petition to name Vice a defendant, claiming he was negligent in starting his horse in the fashion he did. Vice, in turn, made Hebert a third party defendant, making the same allegations originally made by Richoux. Hebert made plaintiff a third party defendant on the basis of the same negligence alleged by Vice in his third party petition against plaintiff. Vice then amended his petition to name Onil Boudreaux, as operator of the track, and Larry Begnaud, the puller of the gates, third party defendants. In answer Boudreaux claimed the accident was caused by either the sole or concurring negligence of Richoux, Vice, Hebert, and/or Begnaud. In a separate action, Richoux filed suit against Boudreaux and Begnaud, claiming that their negligence in operating the track in a hazardous fashion, opening the gates before the horses were prepared, operating the starting gates in a hazardous fashion, and in otherwise operating the track to allow horses to run into the spectator area caused the damages complained of. Not named as defendant was, inter-alia, the jockey involved, Shane Sellers. The cases were consolidated for trial.

Cajun Downs is what is commonly known as a "country" race track, or "bush" track. It is a straight track approximately one-half mile in length. It can accommodate six horses although at the time of the accident only four horses were racing. The railing is made of 2 1/2 inch drill pipe with a gap between the starting gates and railing used to get the horses onto the track and into the starting gates. This gap is closed before a race by means of a flexible pipe approximately 1 1/2 inches in diameter.

Halfway down the track is a concession stand operated by Hebert.

On Sunday, March 8, 1981, Dennis Richoux took a number of his children to Hebert's "Cajun Downs" racetrack. Many children attend the races with their parents, and they generally play in an area to the side of the track near Hebert's house, although they are not restricted to this area. Richoux left his children to play with the others, and began watching the races. Some time later, he left the track for 5-10 minutes, and then returned. He walked toward the house, saw his children, and then returned to his truck, which was parked near the starting gates, for cigarettes. Brandon and another of Richoux's children apparently followed him.

Meanwhile, a race was about to start. Four horses had entered the starting gates, including Vice's "Speedy Bar Jack", and the sliding pipe gate had been closed. Something was apparently wrong, for the horses were taken out and reloaded into the gates a second time. The race was apparently delayed when one of the assistant starters was injured. Richoux stopped to watch from a position near the back of the starting gates, while the two children continued to walk back towards the house. The race started, and the horse in the gate nearest the left rail ("Speedy Bar Jack") immediately veered to the left, went over the sliding pipe, and landed on Brandon, who was some five or six feet behind the rail, away from the track. Brandon had been struck in the head by the hooves of the horse. When his father picked him up, he was motionless, his eyes rolled back and portions of his brain protruded through the shattered skull.

Brandon was rushed to the hospital where his neurosurgeon diagnosed a compound depressed skull fracture with cortical lacerations. Treatment followed. He experienced temporary blindness, a possible seizure, impairment of the hands and legs and a distended abdomen. Subsequently, Brandon was released from the hospital with instructions to take anticonvulsant medication. A cranioplasty later became necessary and was eventually performed at a charitable hospital in Texas. Dr. Rivet, Brandon's neurosurgeon, diagnosed permanent brain damage, however, due to the child's age, he was unable to predict the degree of any learning disability.

In addition, Brandon was placed in traction for fracture of the left femur and was later placed in a body cast. He has also seen a pediatric psychiatrist, due to emotional problems related to confinement, and another physician specializing in physical medicine and rehabilitation. As a result of his brain injury, his doctors recommend he wear protective head gear when engaged in potentially traumatic activity and he continues to take Phenobarbital to prevent seizures. Other physical disabilities continue, including walking with a limp.

As aforementioned, all defendants alleged that Dennis Richoux was negligent in allowing his son Brandon to wander into the spectator area unsupervised, and that this negligence caused the accident. The trial court rejected this defense, noting that the child was within a normal spectator area, several feet from the rail. Operator Onil Boudreaux contends that, as host, he is not liable to an invitee for the injury because the peril was apparent and the plaintiff, in the exercise of reasonable care, should have observed the danger and saved his child from it. However, the trial judge found otherwise, there appears to be no clear error in his decision, and moreover, none of the defendants have appealed or answered plaintiff's appeal. Nevertheless, we believe the plaintiff assumed only those risks ancillary to viewing horse racing in a manner consistent with the track's policy and, furthermore, the danger posed by the operation and maintenance of the track was not foreseeable.

Concerning the responsibility of Virgil Vice as the owner of the horse that injured the child, the trial judge applied the law as set forth in Holland v. Buckley, 305 So.2d 113 (La.1974). In that case it was held that owners are strictly liable for harm caused by their animals and liability may only be escaped by a showing that the harm resulted from some independent cause not imputable to the owner such as fault of the victim, fault of a third person, or a fortuitous event. La.C.C. Art. 2321. To exonerate the animal owner from liability, independent cause must be the sole cause of the damages. Olsen v. Shell Oil Co., 365 So.2d 1285 (La.1978). The record indicates Vice knew of the dangerous propensity of "Speedy Bar Jack" to veer to the left. cf: Tamburello v. Jaeger, 249 La. 25, 184 So.2d 544 (1966); Winant v. Rogers, 256 F.Supp. 1020 (La.D.C.1966); Liner v. McEnery, 176 So.2d 786 (La.App.2nd Cir.1965); Roberts v. Hartford Acc. & Indem. Co., 394 So.2d 696 (La.App.3rd Cir.1981). The trial court concluded there was no independent cause in this incident which could be deemed to be the "sole cause" of the damages, and accordingly, Virgil Vice was held liable. This ruling is also final.

Another issue presented at the trial court was whether Vice's horse was in a position to start the race when the gates were opened or whether Larry Begnaud, as gate opener was negligent in opening the gate before all the horses and their jockeys were in a proper position to start the race. The trial court was of the opinion that it is ultimately the gate puller's responsibility to ascertain that the horses are indeed in a position to safely start the race and found as fact that "Speedy Bar Jack" was in a...