University of Vermont AAHS

James M. Konan v. Sterling Suffolk Race Course, LLC.
Appeals Court of Massachusetts.
2005 WL 701673
March 28, 2005.

Summary of Opinion

An investigator's affidavit containing witness statements regarding a horse's dangerous propensities is inadequate proof of those propensities because the witnesses not the investigator had personal knowledge. Additionally the witnesses did not assert any knowledge linking the occurrences with the specific place of the accident.

Text of Opinion

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, James Konan, is a self-employed horse trainer who was injured at Suffolk Downs while riding Adriatic King, a horse he was considering buying. The horse was owned by Ernest George, trained by William Crane, and stabled at Sterling Suffolk Race Course, LLC. (Suffolk Downs). Konan filed suit in Worcester Superior Court against all three defendants. On April 2, 2003, after a hearing, a judge allowed Suffolk Downs's motion for summary judgment. After final judgment entered as to defendant Suffolk Downs, pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 821 (1974), Konan appealed. We affirm.

In allowing Suffolk Downs's motion for summary judgment, the judge wrote: "Allowed for the reasons expressed and for the lack of a proper opposition by the plaintiff." (R.A. 6) We assume that "the reasons expressed" refer to the reasons expressed by the judge at the hearing or those expressed by the moving party. However, there is no transcript of the hearing in the record appendix. [FN1]

FN1. The docket contains an entry dated July 22, 2003: "plaintiff's Letter received re: no transcript."

The second reason given by the judge for his decision was "the lack of proper opposition by the plaintiff." We are likewise unable to evaluate whether this reason is correct not only because of the lack of a transcript, but also because Konan's papers in opposition to Suffolk Downs's renewed motion are not in the record appendix either. There are a number of documents in the record appendix; however, it is impossible to determine which ones were before the motion judge. Because Konan failed to provide us with an adequate record, we are unable to conclude that the judge committed an error. Cameron v. Carelli, 39 Mass.App.Ct. 81, 83-84 (1995).

Even if we were to proceed on the available record, this would not affect the result. Suffolk Downs seeks to avoid liability on the ground that G.L. c. 128, 2D(b ), provides immunity for certain individuals involved in equine activities. Konan claims, on the other hand, that Suffolk Downs lost its immunity pursuant to G.L. c. 128, 2D(c )(3), inserted by St.1992, c. 212, 1, which provides, in part, that an equine professional loses his immunity if he "commits an act of omission that constitutes willful or wanton disregard for the safety of the participant, and that act of omission caused the injury." Konan argues that Suffolk Downs's act of omission was its failure to warn him of the horse's dangerous propensities, in particular his dislike of being ridden in the wrong direction on the racetrack.

Suffolk Downs submitted an affidavit of John Morrissey, its racing secretary, where he stated that neither Crane, the trainer, nor George, the owner, were agents, servants, or employees of Suffolk Downs. He further stated that no one employed by Suffolk Downs "was aware of the alleged propensity of the subject horse to react as alleged when going the 'wrong way' on the track, nor was any employee otherwise aware of any dangerous propensity of the subject horse." (R.A. 63) Based on this evidence that it did not know of the horse's particular propensities, Suffolk Downs argued that it did not breach any duty to warn.

Presumably in response to this affidavit, Konan submitted an affidavit from William Trainor, a private investigator. (R.A. 64-66) Trainor stated that he talked about the horse's dangerous propensities with six thoroughbred horsemen and summarized what these people "indicated" to him.

"[R]ule 56(e) provides that affidavits used to support or oppose a summary judgment motion 'shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.'... The requirements of rule 56(e) are mandatory.... Hearsay in an affidavit is unacceptable to defeat summary judgment.... 'All affidavits or portions there of made on information and belief, as opposed to personal knowledge, are to be disregarded in considering a motion for summary judgment." ' Madsen v. Erwin, 395 Mass. 715, 719, 721 (1985) (internal citations omitted, emphasis original).

We agree with Suffolk Downs that Trainor's affidavit was hearsay and not based on personal knowledge. Unlike the horsemen he interviewed, Trainor had no first-hand knowledge of the horse or its reputation and merely summarized what he was told by others. Suffolk Downs correctly moved to strike this affidavit [FN2] and thus the judge did not have to credit it. Madsen v. Erwin, 395 Mass. at 721.

FN2. See Fowles v. Lingos, 30 Mass.App.Ct. 435, 439-440 (1991).

While this affidavit is fatally flawed for the above reasons, it also suffers from a different, but equally fatal weakness. Not only were none of the interviewees employees of Suffolk Downs, but they also failed to assert that any employee of Suffolk Downs knew of the horse's allegedly dangerous propensities. The fact that the interviewees and some other unidentified people knew of the horse's reputation does not begin to show that Suffolk Downs knew about it. Because Konan did not provide any evidence that Suffolk Downs knew of the horse's reputation, Suffolk Downs could not, as matter of law, be held liable for its failure to warn Konan, and the allowance of its motion for summary judgment was proper. [FN3] Ibid.

FN3. Even if we assume that Konan raised his alternative statutory and common law theories of liability below, these theories are unavailing for the same reason.

Judgment affirmed.


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