Plaintiff Gehri is a jockey who was injured when thrown from a horse during a race on the defendantís racetrack. His injury was magnified when he made contact with a rail that was at the edge of the track.
He contended the defendants were negligent in not providing a special safety breakaway railing at the track. However, the trial court threw the case out of court because it found that the plaintiff had voluntarily assumed the risk of racing at a track without the special safety rails.
The Court of Appeals agreed with this decision and said that the jockey voluntarily assumed the risk of this injury by agreeing to race at this track under these circumstances and that the risk of injury involved in this case was inherent in racing.
This matter is before this court upon the appeal of plaintiff, David Gehri, from a decision of the Franklin County Court of Common Pleas which granted the summary judgment motion of defendants, Capital Racing Club, Inc., and Beulah Park Limited Partnership. On appeal, plaintiff raises a single assignment of error:
"[I]. The trial court erred in granting defendants' motion for summary judgment on the basis that plaintiff's claim is barred by the doctrine of primary assumption of risk."
On November 28, 1993, plaintiff, a jockey, was injured in the fifth race at the Beulah Park Jockey Club ("Beulah Park") when he was thrown from the thoroughbred horse he was racing and impacted the inner racetrack rail. Defendant Beulah Park Limited Partnership was the owner of the premises on which plaintiff was injured. Defendant Capital Racing Club, Inc., was the lessee of the premises and was the entity that conducted the race.
On March 30, 1995, plaintiff filed a complaint against both Capital Racing Club, Inc., and Beulah Park Limited Partnership ("defendants") in which he asserted that defendants were negligent in maintaining a defective and dangerous inner racetrack rail. Defendants filed an answer in which was raised, among other defenses, the affirmative defense of assumption of risk. Thereafter, plaintiff, with leave of court, filed an amended complaint to include additional elements of damages and an additional claim that defendants' actions and/or omissions were willful, wanton and reckless. Defendants' answer to plaintiff's amended complaint again asserted the affirmative defense of assumption of risk.
Defendants subsequently filed a motion for summary judgment, supported by plaintiff's deposition, arguing that defendants were entitled to judgment based on the following grounds: 1) plaintiff had failed to produce evidence in support of his negligence claim; and 2) plaintiff had assumed the risk of his actions by voluntarily engaging in the sport of thoroughbred horse racing.
Plaintiff filed a memorandum in opposition to defendants' motion for summary judgment, arguing that: 1) defendants breached the duty of care owed to plaintiff by failing to provide a safe racing environment and, more specifically, by using and maintaining an inner racetrack rail that was unsafe and posed a significant danger to jockeys, where defendants knew that the rail was unsafe and that a safer rail existed in the racing industry and was available for use, and; 2) defendants breached the duty owed to plaintiff under Section 3769-14-10 of the Ohio State Racing Commission Rules and Regulations.
Defendants' reply to plaintiff's memorandum in opposition to defendants' motion for summary judgment reiterated that plaintiff's voluntary participation in and acceptance of the risks associated with thoroughbred horse racing constituted primary assumption of risk such that defendants were relived of any duty owed to plaintiff.
On August 19, 1996, the trial court granted defendants' motion for summary judgment, finding that under the doctrine of primary assumption of risk, plaintiff voluntarily accepted the ordinary and inherent risks associated with thoroughbred horse racing and thus, defendants were relieved of any duty owed to plaintiff. The trial court's decision was journalized on September 11, 1996. It is from this order that plaintiff now appeals.
As an initial matter, we disagree with plaintiff's contention that defendants did not raise the issue of primary assumption of risk in their summary judgment motion with sufficient particularity to allow plaintiff the opportunity to properly respond. Resolution of this issue necessarily entails a discussion of the development of the two types of assumption of risk recognized by the Ohio Supreme Court in Anderson v. Ceccardi (1983), 6 Ohio St.3d 110, 451 N.E.2d 780. In Anderson, the court announced its merger of implied (or secondary) assumption of risk with contributory negligence in light of the comparative negligence statute, R.C. 2315.19. Id. at paragraph one of the syllabus. However, the court clearly stated that it did not intend to merge "express" (or contractual) assumption of risk or "primary" assumption of risk with contributory or comparative negligence. With respect to primary assumption of risk, the court stated:
" * * * [O]ur merger of the two doctrines is not intended to merge that type of assumption of risk defined as 'primary assumption of risk,' [footnote omitted] which concerns cases where there is a lack of duty owed by the defendant to the plaintiff. * * * "Id. at 114, 451 N.E.2d 780.
In Gallagher v. Cleveland Browns Football Co. (1996), 74 Ohio St.3d 427, 659 N.E.2d 1232, the Ohio Supreme Court noted the distinction between primary and implied assumption of risk:
"Although the Anderson court merged implied assumption of risk with contributory negligence, the court found that two other types of assumption of risk did not merge with contributory negligence--express (e.g., contractual) assumption of risk and primary ('no duty') assumption of risk. Anderson's statement that primary assumption of risk does not merge with contributory negligence is of critical importance to our discussion here because when a plaintiff is found to have made a primary assumption of risk in a particular situation, that plaintiff is totally barred from recovery, as a matter of law, just as he or she would have been before Anderson. The net result of Anderson's differentiation between primary and implied assumption of risk is that now it is of utmost importance which type of assumption of the risk is put forth as a defense. * * * " Id. at 431.
In the instant case, defendants raised a generic claim of assumption of risk as an affirmative defense in their answers to plaintiff's original complaint and amended complaint. The Gallagher court acknowledged that "Civ.R. 8(C) simply requires a party to put forth 'assumption of risk' as an affirmative defense without taking into account the significant distinction between primary and secondary assumption of risk engendered by Anderson's statement that primary assumption of risk does not merge with contributory negligence." Id. at 432-433, fn. 3. Thus, by raising assumption of risk in their answer, defendants met the minimal pleading requirement set forth in Civ.R. 8(C) that " 'a party shall set forth affirmatively * * * assumption of risk * * * and any other matter constituting an avoidance or affirmative defense.' " (Emphasis original.) Id. at 432.
Furthermore, although defendants did not employ the specific phrase "primary assumption of risk" in their motion for summary judgment, defendants asserted that plaintiff was "barred from recovery herein by virtue of his voluntary assumption of the risk of injury from the activity in which he was engaged * * * i.e. [sic ] thoroughbred horse racing." Primary assumption of risk completely bars a plaintiff from recovery as a matter of law. Id. at 431. On the other hand, as a result of the Anderson court's merger of implied assumption of risk with contributory negligence, a plaintiff who impliedly assumes the risk of a particular action is not totally barred from recovery due to that assumption. Id. at 430. Thus, defendants' assertion that plaintiff was "barred from recovery" due to his voluntary participation in the sport of thoroughbred horse racing should have alerted plaintiff that defendants intended to rely on primary assumption of risk as their theory of defense. Accordingly, we find that defendants' motion for summary judgment raised the issue of primary assumption of risk with sufficient particularity to allow plaintiff the opportunity to properly respond.
By his sole assignment of error, plaintiff contends that the trial court erred in granting defendants' motion for summary judgment on the basis that plaintiff's claim is barred by the doctrine of primary assumption of risk.
We first note the standard to be applied when reviewing rulings on summary judgment motions. Under Civ.R. 56, summary judgment is proper when: 1) no genuine issue as to any material fact remains to be litigated; 2) the moving party is entitled to judgment as a matter of law; and 3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377.
Summary judgment is a procedural device designed to terminate litigation at an early stage; thus, it must be awarded with caution, resolving doubts and construing evidence in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138.
An appellate court reviews the lower court's grant of summary judgment de novo. Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153. ("[W]e review the judgment independently and without deference to the trial court's determination"). In reviewing the grant of summary judgment, an appellate court must follow the standards set forth in Civ.R. 56(C). "On appeal, the reviewing court evaluates the record from a summary judgment proceeding in a light most favorable to the nonmoving party. * * * [T]he motion must be overruled if reasonable minds could find for the party opposing the motion." Saunders v. McFaul (1990), 71 Ohio App.3d 46, 50, 593 N.E.2d 24.
Defendants raised primary assumption of risk as a defense to plaintiff's claim of negligence. As noted previously, primary assumption of risk is an absolute bar to recovery in a negligence action. Gallagher, supra, at 431. It is an alternative way of expressing the concept that a defendant either owed no duty of care to the plaintiff or did not breach any duty owed. Mima v. Akron (1986), 31 Ohio App.3d 124, 125, 508 N.E.2d 974. Underlying the doctrine is the idea that certain risks are so inherent in some activities that the risk of injury is unavoidable. Collier v. Northland Swim Club (1987), 35 Ohio App.3d 35, 37, 518 N.E.2d 1226. Stated another way, primary assumption of risk is invoked "where the activity undertaken involves such obvious and unavoidable risks that no duty of care is said to attach." Holmes v. Health & Tennis Corp. of Am. (1995), 103 Ohio App.3d 364, 366, 659 N.E.2d 812.
Primary assumption of risk has nothing whatsoever to do with plaintiff's conduct. Mima, at 125, 508 N.E.2d 974. A plaintiff's conduct is immaterial in establishing primary assumption of risk because the focus must remain on the lack of duty owed by the defendant. Id. at 126, 508 N.E.2d 974. Thus, primary assumption of risk requires an examination of the activity itself and not plaintiff's conduct. If the activity is one that is inherently dangerous and from which the risks cannot be eliminated, then a finding of primary assumption of risk is appropriate.
Plaintiff argues that defendants were negligent in their failure to provide a breakaway inner racetrack rail. In Harris v. Armco Steel Corp. (Aug. 18, 1994), Richland App. No. 94-CA-28-2, unreported, Harris broke his leg while sliding into second base during a softball game. The diamond on which Harris was playing was equipped with stationary bases and not breakaway bases. Harris filed a complaint against both the entity that constructed and operated the diamonds, Mansfield Softball Association ("Mansfield") and the entity that owned the property on which the diamonds were situated, Armco Steel Corporation ("Armco") asserting that Mansfield and Armco were negligent in failing to provide breakaway bases and for failing to warn that the bases were not breakaway.
Mansfield and Armco moved for summary judgment on the grounds that Harris assumed the risk of his injury. The trial court granted the motion for summary judgment, holding that Harris was a licensee and there was no evidence of a breach of duty owed to a licensee. The appellate court found that the trial court correctly entered summary judgment, albeit for the wrong reason. The appellate court went on to analyze the case under the doctrine of primary assumption of risk. In granting the motion for summary judgment, the court reasoned:
"Injury from sliding is clearly a risk common to the sport of softball. Appellant's expert states at Paragraph 10 of his affidavit that seventy-one percent (71%) of all recreational softball injuries occur during sliding. While the expert states that in his opinion, stationary bases create an unreasonable risk of injury, there was no evidence that use of stationary bases is uncommon in the sport. In fact, the evidence is undisputed that two of the four fields at the park in question use stationary bases. Further, the evidence demonstrated that the risk of sliding is reduced, but not eliminated, by the use of breakaway bases. Certainly, it is common knowledge that one can be injured when sliding into a base. As the injury from sliding is a common risk of the sport, and the injury occurred while sliding during a game, appellees owed appellant no duty of care, based on the doctrine of primary assumption of the risk. Appellant's argument, like the argument in Gallagher, is that the risk was enhanced by stationary bases, which does not apply where there is no duty. There was no evidence that the stationary bases on this field created a risk not inherent in the sport of softball. Id.
Similarly, injury from being thrown from a horse and impacting with the inner racetrack rail is clearly a risk associated with the sport of thoroughbred horse racing. Although plaintiff's expert, Richard Fontana, designer and manufacturer of a breakaway inner racetrack rail known as the "Fontana Safety Rail," stated in his affidavit that use of the "Fontana Safety Rail" is "prominent and customary" in the thoroughbred horse racing industry, other evidence in the record, including the deposition testimonies of Richard Wilson, Vice President and General Manager of Beulah Park Limited Partnership and Capital Racing Club, Inc.; Richard Bostic, Superintendent of Beulah Park; Joseph DeLuca, Beulah Park steward; and Michael Weiss, Assistant General Manager and Director of Racing for Beulah Park, established that many other racetracks around the country do not use the "Fontana Safety Rail" or a comparable breakaway rail, but instead use an inner racetrack rail similar to the one used at Beulah Park. Indeed, plaintiff's own deposition testimony demonstrated that, while breakaway inner racetrack rails are used at other racetracks, rails such as the one used at Beulah Park are used in equal number.
Further, the evidence demonstrated that no rules or recommendations have been promulgated by the Ohio State Racing Commission regarding what type of inner racetrack rail is required at racetracks in the state of Ohio, nor have any investigations been conducted or any citations been issued to Beulah Park for failing to use a breakaway inner racetrack rail. The only requirement established by the Ohio State Racing Commission as to inner racetrack rails is that some type of inner racetrack rail must be used. Thus, there was no evidence that defendants' failure to use a breakaway inner racetrack rail created a risk not inherent in the sport of thoroughbred horse racing. Plaintiff's injuries occurred as a result of a commonly known danger ordinary to the sport of thoroughbred horse racing. Thus, defendants owed plaintiff no duty of care, based on the doctrine of primary assumption of risk.
Moreover, "a plaintiff who reasonably chooses to proceed in the face of a known risk is deemed to have relieved defendant of any duty to protect him." Siglow v. Smart (1987), 43 Ohio App.3d 55, 59, 539 N.E.2d 636. In Sugg v. Ottawa Cty. Agricultural Soc. (Apr. 19, 1991), Ottawa App. No. 90-OT- 005, unreported, the court held that the doctrine of primary assumption of risk relieved the defendant of any duty it owed Sugg, a harness horse racer, in a negligence action against the defendant for failure to properly maintain a racetrack. Sugg argued that defendant breached its duty to properly maintain the racetrack under the Ohio State Racing Commission Rules and Regulations. The court, citing Collier, supra, held that under the doctrine of primary assumption of risk, a sports participant assumes the ordinary and inherent risks of that activity, thereby tacitly consenting to those risks and relieving the defendant of any duty owed to him. The court concluded that since Sugg was an experienced jockey who had been involved in and had observed several collisions during his career, was aware of the dangers involved in racing on a dusty racetrack, had observed the dusty conditions of the racetrack on the day of his accident, yet voluntarily participated in the race, Sugg voluntarily accepted the ordinary and inherent risks involved in harness racing; thus, defendant was relieved of any duty it owed Sugg under the doctrine of primary assumption of risk.
As in Sugg, plaintiff's own testimony in the instant case established that he was an experienced jockey who had been riding thoroughbred horses competitively since 1977 and had been involved in several accidents over the course of his career. Plaintiff had raced at Beulah Park since 1980 and was aware that no breakaway inner racetrack rail was used, yet he voluntarily participated in the race. Indeed, plaintiff had participated in an earlier race on the same day. Plaintiff's voluntary participation in two races on the day he was injured despite his knowledge that the racetrack was not equipped with a "Fontana Safety Rail" or comparable breakaway rail leads this court to conclude that plaintiff voluntarily accepted the ordinary and inherent risks associated with thoroughbred horse racing. Thus, defendants were relieved of any duty they owed plaintiff under the doctrine of primary assumption of risk.
Lastly, plaintiff's argument that the doctrine of primary assumption of risk is inapplicable because defendants' conduct was willful, wanton and reckless is not well-taken. Plaintiff relies on language used in Gallagher v. Cleveland Browns Football Co. (1994), 93 Ohio App.3d 449, 463, 638 N.E.2d 1082 (reversed on other grounds (1996), 74 Ohio St.3d 427, 659 N.E.2d 1232), which stated that the defense of primary assumption of risk does not apply when the acts of the defendant are willful, wanton or reckless. However, the Gallagher court further stated that for an act to be reckless, the risk involved must be an unreasonable one under the circumstances. Id. " 'What constitutes an unreasonable risk under the circumstances of a sporting event must be delineated with reference to the way the particular game is played, i.e., the rules and customs that shape the participants' ideas of foreseeable conduct in the course of a game. * * * [A]ny conduct which is characterized by the strong probability of harm that recklessness entails, and which occurs outside the normal conduct and customs of the sport, may give rise to liability.' " Id. quoting Thompson v. McNeil (1990), 53 Ohio St.3d 102, 105, 559 N.E.2d 705.
In the sport of thoroughbred horse racing, the risk of injury due to accident is foreseeable and not unreasonable. The conduct of defendants in utilizing a stationary inner racetrack rail at Beulah Park was consistent with the customs and regulations of thoroughbred horse racing venues throughout Ohio and around the country. Consequently, defendants did not engage in willful, wanton and reckless conduct in failing to use the "Fontana Safety Rail" or a comparable breakaway inner racetrack rail.
Given our conclusion that the doctrine of primary assumption of risk bars plaintiff's recovery as a matter of law, it is not necessary to address plaintiff's duty arguments which are moot. App.R. 12(A)(1)(c). Accordingly, plaintiff's assignment of error is overruled.
Having overruled plaintiff's assignment of error, the judgment of the Franklin County Court of Common Pleas is hereby affirmed.
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