Turcotte v. Fell

• Decision Date: 05 January 1984
• Citation: 123 Misc.2d 877,474 N.Y.S.2d 893
• Parties: Ronald J. TURCOTTE and Gaetane Turcotte, Plaintiffs, v. Jeffrey FELL, David P. Reynolds, the N.Y. Racing Assoc., et al., Defendants.
• Court: New York Supreme Court

Page 893

474 N.Y.S.2d 893

123 Misc.2d 877

Ronald J. TURCOTTE and Gaetane Turcotte, Plaintiffs, v. Jeffrey FELL, David P. Reynolds, the N.Y. Racing Assoc., et al., Defendants.

Supreme Court, Nassau County.

Jan. 5, 1984.

Edward Cooperman, Garden City, for plaintiffs.

White & Case, New York City, Robert Napier, Rochester, for defendants.

MEMORANDUM

JOHN S. LOCKMAN, Justice.

FACTUAL SETTING

In 1978 Plaintiff Ronald J. Turcotte was a professional free lance jockey who had achieved a certain renown by riding the horse "Secretariat" to victories in all three "Triple Crown" races in 1975. On July 13, 1978 he was aboard "Flag of Leyte Gulf" which started from the third pole position in the Eighth Race at Belmont Park located in Elmont, Nassau County, New York. Entered in the same race was a horse named "Small Raja" ridden by Defendant Jeffrey Fell and owned by Defendant David P. Reynolds of the Reynolds Metal Company. "Small Raja" started from the second pole position and a horse named "Walter Malone" was in the fourth gate. Some fifty yards from the start Defendant Fell is alleged to have so ridden;

"his said horse as to cross and weave his said horse into the path of the horse ridden by plaintiff, impeding plaintiff in his path, and further defendant, Jeffrey Fell, caused his horse to jostle and strike the horse ridden by plaintiff without any fault on the part of plaintiff or his horse and without the fault of some other horse or jockey." (Complaint, p 9).

Plaintiff contends that Defendant Fell's conduct proximately caused "Flag of Leyte Gulf" to move from the third lane to the fourth where it clipped the heels of "Walter Malone", stumbled and propelled Plaintiff to the ground where he sustained serious physical injuries including paraplegia.

MOTIONS

By separate motions Defendants Fell and Reynolds seek summary judgment dismissing the complaint. Defendant Fell contends that while the complaint may be subject to different interpretations the evidence viewed most favorably to Plaintiff would support recovery only on a negligence theory. Specifically, he quotes the following from Plaintiff's pretrial deposition:

"Q. So as you sit here today, it is your belief that Jeffrey Fell did not intend to have Small Rajah (sic) make contact with your horse, ... and that the contact was an accident, unintentional, is that correct?

A. Well, I don't know how you want to term it. I would term it careless."

Defendant Fell argues that since professional horse racing is inherently dangerous a jockey's duty with respect to other jockeys is discharged if he refrains from intentionally causing injury.

BACKGROUND: ASSUMPTION OF THE RISK

Traditionally injuries sustained by competitors in sporting events have been analyzed in terms of assumption of the risk (Weistart & Lowell, The Law of Sports, § 8.02; Comment, 1980 Duke L.Rev. 742) and Justice Cardozo's classic rendering of the policy underlying that "doctrine" is much quoted:

"One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball (citations omitted). The antics of the clown are not the paces of the cloistered cleric.... The Plaintiff was not seeking a retreat for meditation. Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damage to his body might ensue from such a fall. The timorous may stay at home." (Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 482-3, 166 N.E. 173).

In 1975, however, the New York Legislature enacted CPLR 1411 which provides in pertinent part:

"In any action to recover damages for personal injury, ... the culpable conduct attributable to the claimant ..., including contributory negligence or assumption of the risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages."

In commenting on this legislation, then Professor, now Judge, Joseph McLaughlin, said:

"It is interesting (and edifying) that the new statute treats contributory negligence and assumption of the risk interchangeably. The writer has never clearly understood the difference between the two doctrines, and it is well that the statute handles both defenses identically." (McKinney's Cons.L. of NY, Book 7B, Vol. 4, p. 386).

The lack of precision or clearly defined meaning in referring to the "Assumption of the Risk Doctrine" has been criticized through the years. (James, "Assumption of the Risk: Unhappy Reincarnation", 78 Yale L.Rev. 185; Wade, "The Place of Assumption of Risk in the Law of Negligence", 22 La.L.Rev. 5). Unfortunately by using this criticized term in the statute its ambiguity was also incorporated.

ASSUMPTION OF THE RISK AFTER CPLR 1411

As illustrative of assumption of the risk, Justice Cardozo cited the fencer's acceptance of the risk of injury from his opponent's thrust and the spectator's acceptance of the risk of injury from being struck by a batted ball. A possible effect of CPLR 1411 might have been that both the plaintiff fencer and the plaintiff spectator would be entitled to have a jury assess the reasonableness of their conduct should they be injured by the thrust or the batted ball. (See, Akins v. Glens Falls City School Dist., 53 N.Y.2d 325, 333, 424 N.E.2d 531 [dissenting opinion by Cooke, C.J.] ). However, in Akins v. Glens Falls City School Dist., supra, the Court of Appeals ruled that CPLR 1411 had no application because: "This case does not involve the 'culpable conduct' (CPLR 1411)--be it assumption of the risk or contributory negligence--of a spectator injured in the course of a baseball game." (id. at 327, 424 N.E.2d 531). Rather, the Court found that by addressing first the nature of the duty owed the plaintiff by the defendant and next whether such duty was breached (id. at 333, 424 N.E.2d 531; Prosser on Torts [4th Ed.] § 30, p. 143), it could be determined as a matter of law that the defendant had discharged its duty by fencing the section behind home plate where foul balls were most likely to occur.

In drawing the distinction between the issue of the duty of care owed by the defendant to the plaintiff and the issue of the plaintiff's own culpable conduct the Court of Appeals echoed many authorities in the field of tort law.

"... [T]he doctrine [of assumption of the risk] deserved no separate existence (except for express assumption of the risk) and is simply a confusing way of stating certain no-duty rules, or, where there has been a breach of duty toward plaintiff, simply one kind of contributory negligence." (James, "Assumption of Risk: Unhappy Reincarnation", supra at 78 Yale L Rev 187-188; Wade, "The Place of Assumption of Risk in the Law of Negligence", supra at 22 La L Rev 10).

While the authorities differ in the degree of precision with which the subcategories of assumption of risk may be distinguished, they appear unanimous in differentiating between the risk which the plaintiff reasonably encounters because the benefits to be derived outweigh the danger and the risk which the plaintiff unreasonably encounters because the reward is of insufficient magnitude. (See, 1 Harper & James, The Law of Torts, p. 1162; Prosser, Law of Torts [4th Ed.], 440-441; 2 Restatement of Torts Second, §§ 496A-496D). The former plaintiff relieves the defendant of his duty of care toward the plaintiff with respect to the perceived risk which the plaintiff reasonably encounters because of the benefit to be derived. As to the latter plaintiff, the defendant may have breached his duty of care, but the common law relieved defendant of the consequences of that breach because of the plaintiff's own negligence in unreasonably encountering a risk because the benefit to be derived was not of sufficient magnitude.

Akins v. Glens Falls City School Dist., supra, appears to hold that CPLR 1411 applies only to the latter plaintiff who has been guilty of "culpable conduct" in encountering the risk. The baseball spectator who chooses to sit in an unprotected section acts reasonably in exposing himself to the risk of being struck by a batted ball because the risk is sufficiently slight that it is outweighed by the advantage of an unobstructed view. The legal effect of the spectator's choice is to relieve the ball park proprietor of the duty of protecting the spectator from foul balls except for those seated behind home plate where the risk is so great that it is not outweighed.

APPLICATION OF AKINS

ANALYSIS

Having observed the Court of Appeals' handling of the spectator struck by the batted ball in the post CPLR 1411 context, this court must now apply the same principles to the fencer injured by his adversary's thrust or, in our case, the injured professional jockey. No reported case has yet applied Akins v. Glens Falls City School Dist., supra, to an injury to a sports participant, but the treatment of such injuries under the assumption of risk analysis is somewhat helpful.

In McGee v. Board of Education, 16 A.D.2d 99, 226 N.Y.S.2d 329, the First Department confronted a plaintiff injured by an errant throw while coaching a student baseball team. While dismissing the complaint it said:

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