Turcotte v. Fell

• Decision Date: 25 November 1986
• Citation: 510 N.Y.S.2d 49,502 N.E.2d 964,68 N.Y.2d 432
• Parties: , 502 N.E.2d 964 Ronald J. TURCOTTE et al., Respondents-Appellants, v. Jeffrey FELL et al., Respondents, and New York Racing Association, Inc., Appellant-Respondent, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

Page 49

510 N.Y.S.2d 49 68 N.Y.2d 432, 502 N.E.2d 964 Ronald J. TURCOTTE et al., Respondents-Appellants,
v.
Jeffrey FELL et al., Respondents,
and
New York Racing Association, Inc., Appellant-Respondent, et
al., Defendants. Court of Appeals of New York. Nov. 25, 1986.

[68 N.Y.2d 434]

Page 51

[502 N.E.2d 966] Thomas F. Curnin, Marshall Cox, Eric Hellerman and Ellen Perle, New York City, for appellant-respondent.

Sheldon M. Rosen, Commack, Edward M. Cooperman, Garden City, and Barney T. Levantino, Commack, for respondents-appellants.

[68 N.Y.2d 435] Jeffrey Barist, George O. Richardson, III, New York City, and Robert C. Napier, Rochester, for respondents.

OPINION OF THE COURT

SIMONS, Judge.

The issue raised in this appeal is the scope of the duty of care owed to a professional athlete injured during a sporting event. The defendants are a coparticipant and his employer and the owner and operator of the sports facility in which the event took place.

Plaintiff Ronald J. Turcotte is a former jockey. Before his injury he had ridden over 22,000 races in his 17-year career and achieved international fame as the jockey aboard "Secretariat" when that horse won the "Triple Crown" races in 1973. On July 13, 1978 plaintiff was injured while riding in the eighth race at Belmont Park, a racetrack owned and operated by defendant New York Racing Association (NYRA). Plaintiff had been assigned the third pole position for the race on a horse named "Flag of Leyte Gulf". Defendant jockey [68 N.Y.2d 436] Jeffrey Fell was in the second pole position riding "Small Raja", a horse owned by defendant David P. Reynolds. On the other side of plaintiff, in the fourth position, was the horse "Walter Malone". Seconds after the race began, Turcotte's horse clipped the heels of "Walter Malone" and then tripped and fell, propelling plaintiff to the ground and causing him severe personal injuries which left him a paraplegic.

Plaintiffs, husband and wife, commenced this action against Jeffrey Fell, David P. Reynolds, NYRA and others no longer before the court. In their supplemental complaint, they charge that Fell is liable to them because guilty of common-law negligence and of violating the rules of the New York Racing and Wagering Board regulating "foul riding", ¹ that Reynolds is liable for Fell's negligence under the doctrine of respondent superior, and that defendant NYRA is liable because it "negligently failed to water and groom that portion of the racetrack near the starting gate or watered and groomed the same in an improper and careless manner" causing it to be unsafe.

Special Term granted the motions of Fell and Reynolds for summary judgment, holding that Turcotte, by engaging in the sport of horseracing, relieved other participants of any duty of reasonable care with respect to known dangers or risks which inhere in that activity. Finding no allegations of Fell's wanton, reckless, or intentional conduct, it dismissed the complaint as to Fell and Reynolds with leave to replead. NYRA subsequently moved for summary judgment and Special Term denied its motion because it found there were questions of fact concerning NYRA's negligent maintenance of the track. On separate appeals,

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[502 N.E.2d 967] the Appellate Division affirmed, with one Justice dissenting from the order denying NYRA's motion for summary judgment, and the [68 N.Y.2d 437] matters are before us as cross appeals by its leave. The order should be affirmed as to defendants Fell and Reynolds and reversed as to defendant NYRA, and NYRA's motion for summary judgment should be granted. The complaint should be dismissed as to all defendants because by participating in the race, plaintiff consented that the duty of care owed him by defendants was no more than a duty to avoid reckless or intentionally harmful conduct. Although a sport's safety rules are an important consideration in determining the scope of plaintiff's consent, the alleged violation of the rule in this case did not constitute reckless or intentional conduct and the complaint against defendants Fell and Reynolds was properly dismissed. NYRA's duty is similarly measured by plaintiff's consent to accept the risk of injuries that are known, apparent or reasonably foreseeable consequences of his participation in the race. Inasmuch as there are no factual issues concerning its liability, its motion for summary judgment should have been granted also. I

It is fundamental that to recover in a negligence action a plaintiff must establish that the defendant owed him a duty to use reasonable care, and that it breached that duty Akins v. Glens Falls City School Dist., 53 N.Y.2d 325, 333, 441 N.Y.S.2d 644, 424 N.E.2d 531; Pulka v. Edelman, 40 N.Y.2d 781, 782, 390 N.Y.S.2d 393, 358 N.E.2d 1019; Kimbar v. Estis, 1 N.Y.2d 399, 405, 153 N.Y.S.2d 197, 135 N.E.2d 708; Vogel v. West Mountain Corp., 97 A.D.2d 46, 48, 470 N.Y.S.2d 475. The statement that there is or is not a duty, however, "begs the essential question--whether the plaintiff's interests are entitled to legal protection against the defendant's conduct" (Prosser and Keeton, Torts § 53, at 357 [5th ed]; see also, De Angelis v. Lutheran Med. Center, 58 N.Y.2d 1053, 1055, 462 N.Y.S.2d 626, 449 N.E.2d 406). Thus, while the determination of the existence of a duty and the concomitant scope of that duty involve a consideration not only of the wrongfulness of the defendant's action or inaction, they also necessitate an examination of plaintiff's reasonable expectations of the care owed him by others. This is particularly true in professional sporting contests, which by their nature involve an elevated degree of danger. If a participant makes an informed estimate of the risks involved in the activity and willingly undertakes them, then there can be no liability if he is injured as a result of those risks.

Traditionally, the participant's conduct was conveniently analyzed in terms of the defensive doctrine of assumption of [68 N.Y.2d 438] risk. With the enactment of the comparative negligence statute, however, assumption of risk is no longer an absolute defense (see, CPLR 1411, eff Sept. 1, 1975). Thus, it has become necessary, and quite proper, when measuring a defendant's duty to a plaintiff to consider the risks assumed...