Rini v. Oaklawn Jockey Club

Decision Date18 November 1988
Docket NumberNo. 87-1779,87-1779
Citation861 F.2d 502
PartiesAnthony RINI, Appellant, v. OAKLAWN JOCKEY CLUB, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

James B. McMath, Little Rock, Ark., for appellant.

Glenn W. Jones, Little Rock, Ark., for appellee.

Before McMILLIAN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and HANSON, * Senior District Judge.

McMILLIAN, Circuit Judge.

Anthony Rini appeals from a final judgment entered upon a jury verdict in favor of appellee Oaklawn Jockey Club (Oaklawn) in his personal injuries suit. Rini v. Oaklawn Jockey Club, 662 F.Supp. 569 (W.D.Ark.1987). For reversal, Rini argues that the district court erred in instructing the jury on assumption of risk because that defense has been abolished in Arkansas through the adoption of comparative fault. For the reasons discussed below, we reverse.

Rini, a professional jockey with approximately twenty-three years experience, was injured while training a horse during a morning starting practice at Oaklawn Race Track in Hot Springs, Arkansas. Morning starting practice occurs at most horse racing tracks and is a process of qualifying a young horse making its first appearance at the track to start in a race. During the practice, the horse and jockey are started from the starting gate as if in an actual race.

On the morning of the accident, Rini's horse left the starting gate, spooked and attempted to duck or turn and run the wrong way around the race track. Rini attempted to restrain the horse, which then saddled sideways and struck the inside rail of the track. Rini was thrown off the horse into the rail and fell to the infield. He sustained serious and permanently disabling injuries to his spine, shoulder, and ribs, resulting in paralysis of his left arm.

Rini brought suit against Oaklawn claiming that they had been negligent in creating and maintaining two hazards--a dangerous traffic pattern near the starting gate and a dangerous rail. Rini claimed that the design of the track caused a hazardous traffic pattern near the starting gate because the track has only one starting gate whereas most tracks have two, and the principal entrances to and exits from the track are near the gate so that many horses go the wrong way around the track in front of the gate in order to back track to the exit location. Additionally, horses may enter the track through a ramp immediately in front of the starting area but out of sight of the gate. Rini asserted that these design defects caused a high level of traffic in the starting gate area so that there was a great potential for horses entering or exiting the track to "spook" horses coming out of the starting gate. Several experts testified that the design of the track was hazardous, and other witnesses testified that many persons in the racing industry, including Oaklawn itself, recognized the defect in the design. Rini also alleged that Oaklawn had been negligent in failing to install a "Fontana Safety Rail," a special type of rail designed to render the inside rail less hazardous to jockeys who are thrown from their mounts.

Oaklawn responded with evidence that Rini had never complained about the traffic pattern at Oaklawn, that any design defects in the track were not the proximate cause of Rini's injury, and that Oaklawn's rail was as safe or safer than the "Fontana Safety Rail."

At the close of the evidence, the district court proposed to instruct the jury on comparative fault under the Arkansas comparative fault statute, Ark.Code Ann. Sec. 16-64-122 (1987). The district court also proposed an additional instruction on assumption of the risk as follows:

The plaintiff claims in this case that defendant's negligence created and maintained two hazards which proximately caused his injury: one, unsafe congestion around the schooling gate; and two, an unsafe rail. If you find that the defendant was in fact negligent in either of these two respects, then it will be necessary for you to inquire whether the plaintiff assumed the risk of these hazards. In order for him to have done so, he must have known of these specific hazards and resolved that the defendant owed him no duty of due care with respect to them. In other words, in order to assume the risk of another's negligence, a person must consent to it and not merely acquiesce in it. You will have to decide this issue on the basis of all the evidence, both direct and circumstantial, and your own common knowledge.

Rini objected to this instruction on the ground that implied assumption of the risk is no longer a defense to an action for negligence in Arkansas due to the adoption of comparative fault. The district court overruled this objection and gave the instruction. The jury returned a verdict finding that Rini had been 65 percent negligent, that Oaklawn had been 35 percent negligent, and that Rini had assumed the risk. The district court denied Rini's post-trial motion for JNOV or a new trial and this appeal followed.

The sole issue on appeal is the extent to which the defense of assumption of risk survives the adoption of comparative fault in Arkansas.

The general principle of assumption of risk is that "[a] plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm." Restatement (Second) of Torts Sec. 496A (1965). The origins of the doctrine may be traced to the industrial revolution in the context of the master-servant relationship. As Justice Black explained:

Assumption of risk is a judicially created rule which was developed in response to the general impulse of common law courts at the beginning of this period [the industrial revolution] to insulate the employer as much as possible from bearing the "human overhead" which is an inevitable part of the cost--to someone--of the doing of industrialized business. The general purpose behind this development in the common law seems to have been to give maximum freedom to expanding industry.

Tiller v. Atlantic Coast Line R.R., 318 U.S. 54, 58-59, 63 S.Ct. 444, 447, 87 L.Ed. 610 (1943) (Tiller ) (footnotes omitted). Over the years the doctrine spread to nearly every area of negligence law and "reflects the individualism of the common law." Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 437 A.2d 1198, 1206 (1981) (plurality).

At least two things are commonly said about the doctrine of assumption of risk. The first is that it is a frequent cause of confusion. See, e.g., Tiller, 318 U.S. at 68, 63 S.Ct. at 452 (Frankfurter, J., concurring) ("The phrase 'assumption of risk' is an excellent illustration of the extent to which uncritical use of words bedevils the law. A phrase begins life as a literary expression; its felicity leads to its lazy repetition; and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory ideas."); W.P. Keeton, D. Dobbs, R.E. Keeton, & D. Owen, Prosser & Keeton on Torts Sec. 68, at 480 (5th ed. 1984) (hereinafter Prosser & Keeton on Torts) (assumption of risk "has been surrounded by much confusion"); Mansfield, Informed Choice in the Law of Torts, 22 La.L.Rev. 17, 17 (1961) (assumption of risk "more difficult to understand and apply than almost any other [doctrine] in the law of torts"). The second thing that is said of assumption of risk is that it is not well liked, particularly in recent times. See, e.g., Blackburn v. Dorta, 348 So.2d 287, 289 (Fla.1977) (Blackburn ) ("assumption of risk is not a favored defense"); ITT Rayonier, Inc. v. Puget Sound Freight Lines, 44 Wash.App. 368, 722 P.2d 1310, 1314 (1986) (ITT Rayonier ) ("Assumption of the risk has experienced a slow but steady fall from grace."). A number of commentators have advocated the abolition of the defense, 1 and a majority of the states have curtailed the doctrine to some extent. 2 A great deal of the confusion and distaste surrounding the doctrine stems from the fact that the term "assumption of risk" has several different meanings and is often applied without recognizing these different meanings.

In its original meaning, assumption of risk was not a separate defense. Rather, the term was simply a way of expressing the rule that an employer owed a duty to provide a reasonably safe place to work, but that if the employer discharged that duty he or she was not liable; the employee "assumed the risk" of any damages caused by the inherent risks of the job. Accordingly, if the employee were able to show that the injury was "caused by a risk created by the master's breach of duty to furnish a reasonably safe place to work, assumption of the risk in the primary sense necessarily was negated." Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44, 155 A.2d 90, 93 (1959) (discussing historical development of assumption of risk).

Later, however, the legal concept arose that the employer should nonetheless prevail because the employee voluntarily exposed himself or herself to a risk negligently created by the employer. This doctrine was also labeled assumption of the risk, and in this way "two utterly distinct thoughts bore the same label with inevitable confusion." Id. Thus, assumption of risk in its primary sense was nothing more than a means of describing the absence of a duty on the employer to protect the employee from inherent risks, while assumption of risk in its secondary sense represented an affirmative defense that the employee should not be able to recover where he or she voluntarily proceeded with full awareness of the risk which caused the injury.

Next, a distinction arose within the category of secondary assumption of risk between "reasonable" and "unreasonable" assumption of risk. This distinction focused on the plaintiff's conduct in assuming the risk, characterizing it as either reasonable under the circumstances or...

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    ...of risk' has several different meanings and is often applied without recognizing these different meanings." (Rini v. Oaklawn Jockey Club (8th Cir.1988) 861 F.2d 502, 504-505) Courts vainly attempt to analyze conduct in such esoteric terms as primary assumption of risk, secondary assumption ......
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