Rini v. Oaklawn Jockey Club

• Decision Date: 29 May 1987
• Docket Number: No. 86-6010.,86-6010.
• Citation: 662 F. Supp. 569
• Parties: Anthony RINI, Plaintiff, v. OAKLAWN JOCKEY CLUB, Defendant.
• Court: U.S. District Court — Western District of Arkansas

662 F. Supp. 569

Anthony RINI, Plaintiff, v. OAKLAWN JOCKEY CLUB, Defendant.

No. 86-6010.

United States District Court, W.D. Arkansas, Hot Springs Division.

May 29, 1987.

James Bruce McMath, The McMath Law Firm, P.A., Little Rock, Ark., for plaintiff.

James M. Simpson, Friday, Eldredge & Clark, Little Rock, Ark., for defendant.

MEMORANDUM OPINION

MORRIS SHEPPARD ARNOLD, District Judge.

This is an action against the owners and operators of a racetrack for negligently creating and maintaining two hazards that resulted in serious and permanent injuries to plaintiff, who was a jockey until the accident complained of. Plaintiff claimed, and he adduced evidence to show, that while he was schooling a young horse he was injured due to a hazardous traffic pattern near the starting gate and a dangerous rail in which he became entangled when he fell. Plaintiff testified that his horse wheeled into the rail because it was spooked by a horse entering the track as plaintiff left the gate, and he asserts that this would not have occurred if defendant's track had not been designed so as to allow for this kind of traffic pattern during schooling hours. Plaintiff also testified, and there was corroborating evidence, that his injury would not have occurred if the Fontana safety rail had been employed, that is, if the racetrack rail had been covered with a flat expanse of flexible surface that would have prevented his contact with the posts of the rail when he fell. Defendant, for its part, introduced evidence tending to show that horses spook and wheel for reasons sometimes impossible to know; that, at any rate, plaintiff's horse wheeled for a reason wholly unrelated to the traffic pattern at its track; that its racetrack was in no manner negligently arranged; and that the Fontana safety rail would not have prevented the relevant accident and was, in any case, more generally dangerous than the rail that was in place. Defendant also presented evidence tending to show that plaintiff knew of the hazards of which he complained and that he had lost his stirrups while riding.

There was a great deal of evidence in the case produced over a period of three and a half days, but its main features, so far as it bears on the material issues involved, are summarized above. After both sides rested, the court was of the view that a submissible case had been made on the negligence, if any, of both the plaintiff and defendant. The court also believed that, on the evidence presented, reasonable people could find that the plaintiff had assumed the risks created by defendant's negligence, if any, and therefore proposed to instruct the jury as follows:

The plaintiff claims in this case that defendant's negligence created and maintained two hazards that proximately caused his injury: one, unsafe congestion around the schooling gate; and two, an unsafe rail. If you find that 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.

To this instruction plaintiff excepted, on the ground that assumption of the risk, unless it is express, is no longer a defense to an action for negligence under the law of Arkansas.

I.

In support of its assertion that the defense of assumption of the risk has disappeared in Arkansas, plaintiff relies heavily on Ark.Stat.Ann. § 27-1763 (1979), which is Arkansas's comparative fault statute. That statute defines fault as "any act, omission, conduct, risk assumed, breach of warranty or breach of any legal duty which is a proximate cause of any damages sustained ..." (emphasis supplied). Plaintiff maintains that this statute has absorbed the idea of assumption of the risk into the general idea of fault, and that that defense therefore no longer continues to have a separate and distinct existence.

This analysis has more than a little to recommend it; but the court believes, on reflection, and with great respect for plaintiff's able and energetic counsel, that that interpretation is too facile. What it ignores is the plain fact that an assumption of a risk is not by any means always a matter of fault. For an assumption of the risk to be merged into fault, it must, as a logical matter, itself be faulty. The logic of this is irresistible. Many risks, however, are obviously assumed without fault; otherwise all capitalists, entrepreneurs, indeed all creditors, would have to be regarded as acting in a faulty manner, for they all assume the risk that their investments will fail or that their debtors will become insolvent.

The statute therefore, of necessity, means something other than what the plaintiff asserts. The court believes that its true construction can be sought in the experience that Arkansas courts had had with the idea of assumption of the risk before the passage, in 1975, of the relevant portion of the statute. Before then, Arkansas courts had employed Arkansas Model Instruction (AMI) 612, which provided that a plaintiff was barred if he voluntarily and knowingly exposed himself to a dangerous situation of which he knew and which proximately caused his injury. This was a correct statement of the law of Arkansas as it had developed prior to the promulgation of this instruction. See generally, on this development, Dobbs, Act 191, Comparative Negligence, 9 Ark.L.Rev. 357, 373-78 (1955). The Arkansas cases had made no essential distinction between contributory negligence and assumption of the risk, but this had caused little difficulty because both had been, before 1955, a complete bar to the plaintiff's recovery.

What the statutory provision was aimed at, then, was eliminating assumption of the risk as a complete defense when that phrase was used as no more than another name for contributory negligence. This was in keeping with the legislative decision to abolish the bar to recovery which the doctrine of contributory negligence had previously provided. But this statute in no way reaches that version of the doctrine of assumption of the risk which teaches that a complete bar to a plaintiff's recovery is available to a defendant who can show that the plaintiff consented to defendant's negligence in the fullest sense, that is, that he waived the duty that the defendant would otherwise have to behave towards him in a non-negligent way. This idea, sometimes called primary assumption of the risk, is not radical or remarkable, and has found expression through the centuries in the maxim volenti non fit injuria: A wrong cannot be done to one who consents. It surely cannot be argued that the Arkansas legislature intended to reject the notion that one can expressly waive a known right; and, if that is so, it seems wrong to assume that the legislature intended to eliminate implied consent as a defense. Of course, as a sovereign power, the legislature may certainly do such a thing. But it needs to speak more clearly on this subject than it has before this court will hold that it has abandoned consent as a fundamental principle of social ordering. Implied consent, like implied contract, is an idea by which all of us govern our daily lives, and its abandonment will require the plainest and most express words. The Supreme Court of Arkansas has many times indicated its approval of the principle of implied waiver and the analogous idea of implied contract. See, e.g., National Investors Life Ins. Co. v. Tudor, 264 Ark. 361, 571 S.W.2d 585 (1978) (in banc) (implied waiver). Quite recently, in fact, the court wrote that an implied contract is one "inferred from the acts of the parties," and it indicated its acceptance of the entirely orthodox view that "a contract implied in fact ... derives from the `presumed' intention of the parties as indicated by their conduct." Steed v. Busby, 268 Ark. 1, 7, 593 S.W.2d 34, 38 (1980). It is no great...