Nigro v New York Racing Assn., Inc.
Annotate this CaseDecided on November 12, 2010
Supreme Court, Nassau County
Sara Nigro, Plaintiff,
against
New York Racing Association, Inc., Defendant.
15224/06
Joshua M. Jemal, Esq.
170 Old Country Road, Suite 200
Mineola, NY 11501
Sullivan, Papain, Block, McGrath & Cannavo, P.C.
120 Broadway
New York, NY 10271
Anthony L. Parga, J.
Motion by defendant New York Racing Association, Inc. ("NYRA") for an order pursuant to CPLR 3212 granting it summary judgment dismissing the complaint is granted.
Plaintiff commenced this action to recover damages for personal injuries allegedly sustained when she fell from a race horse on February 9, 2006 at Belmont Race Track. The accident occurred on the horse path located on Omaha Road, in front of "Barn 21" within Belmont.
The following facts are taken from pleadings and submitted papers and do not constitute findings of fact by this court.
On February 9, 2006, plaintiff worked at Belmont as an exercise horse rider for her employer, John Herzler, when the horse she exercised that morning lost its footing and fell as it stepped on some loose gravel sitting on an asphalt path intersecting the dirt path on which she [*2]rode. Caputo aff. ¶¶ 6, 8-9. Plaintiff rode the horse while Herzler's assistant trainer, Victor, walked with them and led the horse. Id. ¶ 7.
Prior to this accident, plaintiff observed many other horses having problems and slipping when crossing asphalt covered with gravel. Id. ¶ 8. At Belmont, she observed hundreds of horses having such a problem. Id. She observed horses and riders fall as a result of a horse's stepping on asphalt covered with gravel. Id. Nigro also observed gravel on the asphalt at the very spot where her horse slipped at the moment of her accident on occasion prior to her accident. Id. at 100.
Plaintiff rode the horse involved in the incident approximately 50 times before and was completely familiar with its temperament. Id. at 71-72. On the date of the accident, she exercise-walked the horse with a groom taking the lead. Id. at 77. She completed most of the walk as the groom led her toward the section of asphalt where her accident occurred. See id. at 88. As plaintiff approached the accident location, she spoke to the horse to keep it calm and comfortable. Id. at 104-105. She observed the conditions as she approached, and did not say anything to the groom to warn of the conditions. Id. at 97-98, 103-104. Further, the groom did not make any comments to the plaintiff to warn her regarding the surface conditions of the asphalt. Id. at 104. The ground was a level surface; neither inclined or declined. Id. at 93. Plaintiff carefully observed the ground as she approached the asphalt. Id. at 96. She did not observe any puddles in the area. Id. at 96. The conditions of the dirt path leading to the asphalt were good, according to plaintiff. Id. at 96-97.
Regarding her experience as a horsewoman, Nigro's equestrian career began at five years of age. Id. at 15. She trained extensively and holds bachelor's degrees in equestrian science. Id. at 9-10. She worked continuously in the equestrian industry as a rider, trainer and instructor since college. See id. at 30 passim. Plaintiff also obtained horse training licenses in New York and Delaware. Id. at 24-25. In 2003, she went to work for Herzler as an exercise rider and groom at Belmont. Id. at 61.
NYRA moves for summary judgment dismissing the complaint on the grounds that plaintiff, an experienced professional horse exercise rider, voluntarily assumed the risk of her injuries. In support thereof, defendant relies upon the transcript of testimony of plaintiff's examination-before-trial; photographs of the accident location; transcript of deposition testimony of Scott Ferrante, maintenance supervisor at Belmont; and the transcript of deposition testimony of John Markfelder, the facilities manager at Belmont.
In opposition to the motion, plaintiff asserts, inter alia, that "the evidence proves that plaintiff Nigro was injured as a result of being caused to fall off a horse that slipped on a gravel covered asphalt roadway that intersected a horse path — a condition that posed a risk that was heightened and aggravated as compared to those inherent to exercising a horse." Plaintiff offers, inter alia, an affidavit of Stanley H. Fein, a professional engineer and an affidavit of Jill Cooke, an equine and equestrian expert.
The doctrine of assumption of the risk provides that a voluntary participant in a sporting or recreational activity "consents to those commonly appreciated risks which are inherent in and are out of the nature of the sport generally and flow from such participation" (Morgan v State of New York, 90 NY2d 471, 484 [1997]). Further, it is well settled that "an inherent risk in sporting events involving horses is injury due to the sudden and unintended actions of the animals" [*3](Dalton v Adironack Saddle Tours, Inc., 40 AD3d 1169 [3rd Dept. 2007], quoting Norelco v Scolaro, 267 AD2d 666,667 [3rd Dept. 1999]), including those actions which result in the participant "being thrown or falling" (Tilson v Russo, 30 AD2d 856, 857 [3rd Dept. 2006]; see Turcotte v Fell, 68 NY2d 432, 440-441 [1980]; Joseph v New York Racing Association, 28 AD3d 105, 108-109 [2nd Dept. 2006]. The doctrine also "includes those rules associated with the construction of the playing surface and any open and obvious condition on it" (Joseph v New York Racing Association, supra; see Sykes v County of Erie, 94 NY2d 912 [2000]; Maddox v City of New York, 66 NY2d 270 [1985]). Awareness of the risk is "to be assessed against the background of the skill and experience of the particular plaintiff" (Id; see Morgan v State of New York, supra, at 486). Furthermore, while participants in such an activity are not deemed to have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risk (see Morgan v State of New York, supra at 485), "[i]f the risks of the activity are fully comprehended or perfectly obvious, [the] plaintiff has consented to them and [the] defendant has performed its duty" by making the conditions as safe as they appear to be (Turcotte v Fell, supra; see Marshall v City of New Rochelle, 15 AD3d 456 [2nd Dept. 2005]; Restaino v Yonkers Bd. of Educ., 13 AD3d 432 [2nd Dept. 2004]; Dobert v State of New York, 8 AD3d 873 [3rd Dept. 2004]; Vecchione v Middle Country Cent. School Dist., 300 AD2d 471 [3rd Dept. 2002]; Verro v New York Racing Assn., 142 AD2d 396 [3rd Dept. 1989] app. den. 74 NY2d 611 [1989]).
Applying the foregoing principles to the facts of this case, defendant has made a prima facie showing that it is entitled to judgment dismissing the complaint.
Plaintiff, an experienced exercise rider, assumed the risk of falling from the horse by electing to ride a horse over an asphalt horse path covered with gravel (Joseph v New York Racing Association, supra; Dalton v Adirondack Saddle Tours, Inc., supra). Under the circumstances, plaintiff's injuries were caused by an incident inherent to the activity of horseback riding, rather than by any defect in the horse path.
The burden thus shifts to the opponent, who must produce evidentiary proof in admissible form sufficient to establish the existence of material facts which require a trial (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Mere conclusions, expressions of hope, or unsubstantiated allegations are insufficient (Zuckerman v City of New York, supra).
Plaintiffs have failed to sustain their burden of establishing that issues of fact exist which require a trial (Alvarez v Prospect Hosp., supra).
Plaintiff's contentions that NYRA failed to adequately maintain the accident location by failing to keep it free of gravel at all times, by failing to have constructed the intersection of paths more effectively or by failing to use better materials for the construction of that intersection are insufficient to defeat this motion. In so holding, the Court considered the affidavits of plaintiff's experts, Mr. Fein and Ms. Cooke.
In his affidavit, Mr. Fein asserts, inter alia, that "an asphalt roadway" was "not suitable for horses traversing over the roadway . . . because it was made of compacted asphalt which does not provide any cushion for the horses and very limited friction and stability for horses traversing upon it which results in a loss of footing."
In her affidavit, Ms. Cooke concludes, inter alia, that "plaintiff was caused to be injured as a result of riding a horse that violently and without warning slipped on the asphalt roadway. . [*4]." Next, Ms. Cooke claims that when a horse steps on asphalt covered in loose gravel, "it is foreseeable that . . . they will be presented with an increased loss of footing."
Overall, the conclusory assertions offered by plaintiff's experts are insufficient to defeat defendant's motion based on the doctrine of primary assumption of risk (Brady v Bisognot Myerson, 32 AD3d 410 [2nd Dept. 2006]; see Jones v City of New York, 32 AD3d 706 [1st Dept. 2006]; see also Joseph v New York Racing Association, supra;).
In view of the foregoing, the motion is granted and the complaint is dismissed.
This constitutes the order and judgment of this Court.
November 12, 2010
_____________________________
Anthony L. Parga, J.S.C.
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