University of Vermont AAHS

Hommel v. Benshoff


New York Supreme Court, Appellate Division
178 Misc.2d 1038, 682 N.Y.S.2d 546
October 21, 1998


Summary of Opinion

Plaintiff Hommell was employed as a “horse identifier” at Aqueduct Racetrack in New York City.  Her job was to lift the legs of race horses so that identifying marks could be photographed by another person, thereby confirming that the horse being raced is the same horse as the one listed in the program.  While doing so on one occasion, plaintiff was kicked by a horse and was injured.  She sued the employer (Benshoff) of the groom who was holding the horse on the theory that the groom failed in his duty to control the horse.  The groom’s employer moved for a summary judgment in his favor on the ground that the plaintiff assumed the risk of injury by her participation in this activity.

The Supreme Court of New York (which, despite its name, is a trial court) concluded that the doctrine of primary assumption of risk, which under New York law applies to participants in risky sports, applied to the plaintiff in this case.  She was experienced and knew the risks of the activities in which she was participating.  Therefore, defendant Benshoff could not be held responsible for her injuries.

Since the defendant Benshoff was not liable, the plaintiff’s employer, Wachenhut Security, was not liable to the defendant and the case against Wackenhut was also dismissed.

Text of Opinion

The motion by defendant Ronald Benshoff for summary judgment dismissing the complaint, and cross motion by third party defendant Wackenhut Security Corp. for summary judgment dismissing the third party complaint are decided as follows:

Plaintiff is employed by third party defendant Wackenhut Security Corp.  (hereinafter "Wackenhut") as a "horse identifier," a job whose apparent purpose is to insure that a racehorse that runs a race is in fact the one listed on the program. This is accomplished by examining the "night eyes," a distinctive marking/tattoo found on the hooves or legs. This requires that the animal's legs be lifted so that the identification can be made. The markings are then photographed by another person.

It is undisputed that the plaintiff had been employed as a horse identifier for approximately six years prior to the date of the incident that led to this suit. At her examination before trial plaintiff testified to the fact that she was aware that horses may and had kicked while the identification is conducted, and that this could be caused by any one of a number of factors  the click and/or flash of the camera used in the identification process, the way in which a leg is held, or even the mere presence of unfamiliar people behind the animal.

On January 1, 1993, the plaintiff was injured in a stall at Aqueduct Racetrack in Queens County, New York, while attempting to identify a horse named Wanna Be Alive. At the EBT the plaintiff acknowledged that she had noticed that the horse was excited when it had been unloaded from its transporting van, and was still excited when she saw it in the stall. The horse also had kicked a few times in the stall prior to the incident. Nevertheless, plaintiff remained in the stall and attempted to do the identification.

The front right leg had been photographed by another of Wackenhut's employees, an individual named James Zito, described as plaintiff's supervisor. The plaintiff held the horse's left hind leg while she and her supervisor told a groom, employed by defendant Ronald Benshoff, to better control the horse to stop the horse from kicking. This is often done by "shanking" the horse   pulling on a strap that is fitted over the horse's nose to distract the animal  or by covering the eyes. Plaintiff claims that the groom did not do either, or take any other effective step to calm the horse. In any event, it is apparent that the horse did not settle down. It kicked the plaintiff, causing injury.

On this motion defendant Benshoff moves for summary judgment. It should be noted at this juncture that the answer of codefendant Prentiss Hallenbeck, Wanna Be Alive's owner, was previously stricken by order of this Court dated August 1, 1997 for failure to attend pretrial conferences. The Benshoff motion asserts several grounds for this motion, but key is its reliance on the doctrine of assumption of risk.

Assumption of risk acts as a bar to recovery as a matter of law in two cases: where there had been an express assumption of risk by the plaintiff (Abergast v. Board of Educ., 65 N.Y.2d 161, 490 N.Y.S.2d 751, 480 N.E.2d 365), or where the nature of the activity is such that the law imposes no duty on the defendants to safeguard knowledgeable, voluntary participants from those risks (Maddox v. City of New York, 66 N.Y.2d 726). The latter circumstance is sometimes referred to as "primary" assumption of risk. Turcotte v. Fell, 68 N.Y.2d 432, 438, 510 N.Y.S.2d 49, 502 N.E.2d 964. There has been a great deal of case law on the subject, most recently (and importantly) from the Court of Appeals in several cases consolidated for purposes of appeal. Morgan v. State of New York, 90 N.Y.2d 471, 662 N.Y.S.2d 421, 685 N.E.2d 202. In Morgan the Court reviewed prior decisions, including those cited above, and summarized the law as follows:

As there is no express assumption of risk present in this case, movant must demonstrate that the action is barred under the so called "primary" assumption of risk. A threshold question that first must be answered is whether the doctrine applies to this case at all, as the plaintiff was not injured during the course of the sport of horse racing itself, but rather during the course of her employment in a related but separate activity.

The Appellate Division, Third Department has made the flat statement that the doctrine of primary assumption of risk "is limited to plaintiffs injured while voluntarily participating in a sporting or entertainment activity." Stirpe v. T.J. Maloney & Sons,     A.D.2d     , 675 N.Y.S.2d 709, quoting Comeau v. Wray, 241 A.D.2d 602, 659 N.Y.S.2d 347. However, the Second Department has not been so clear, stating only that the question of assumption of risk "typically" (but, by clear implication, not exclusively) is applied in the case of sporting and entertainment events and activities. Cohen v. Heritage Motor Tours, 205 A.D.2d 105, 618 N.Y.S.2d 387.

The Court finds that the activity in which plaintiff was engaged is one to which the doctrine may apply. It is a matter of common knowledge that one of the central dangers to all participants in sporting activities involving horses is the strength and unpredictability of the animals themselves. See, Harrington v. Colvin, 237 A.D.2d 992, 656 N.Y.S.2d 1017; Rubenstein v. Woodstock Riding Club, 208 A.D.2d 1160, 617 N.Y.S.2d 603. Thus, for all who work closely with horses  even if not direct participants in the sport itself   there is an elevated risk of injury that is key to the application of the doctrine. Cf., Cohen v Heritage Motor Tours, supra.

Applying the foregoing to the circumstances present in this case, the Court concludes that the plaintiff may not pursue the movant because she assumed the risk of the injury she suffered. She was experienced and well acquainted with the propensities and inherent danger of horses. Moreover, she elected to remain in the stall even though she was aware that this particular horse was agitated and had been difficult to control.

These dispositive facts are unaffected by the plaintiff's affidavit submitted on this motion, and the testimony of James Zito, that the identifiers rely on grooms to control the animal during the identification process, and that the defendant's employee failed to do so in this case. Even assuming for purposes of this motion that the groom did not control the horse after being asked to do so, the Court cannot find that this created a "unique and ... dangerous condition over and above the usual dangers that are inherent in the sport." Morgan v. State of New York, supra. As indicated above, there is no dispute that a horse is a powerful and sometimes unpredictable animal, and the failure of a groom to control a horse therefore cannot be seen as so unusual that it comes within the ambit of this exception. In addition, the plaintiff continued in her attempt to complete the identification notwithstanding the excited condition of the horse. Accordingly, summary judgment is granted to movant Benshoff, and the complaint and any cross claims asserted against him are dismissed.

In view of the foregoing determination, the cross motion to dismiss the third  party complaint is also granted, as Benshoff had sought judgment over against Wackenhut in the event the plaintiff prevailed. So much of the cross motion that seeks dismissal of the second third party action brought by Hallenbeck is granted as unopposed, as well as in view of Hallenbeck's default at the pretrial conference and the resultant order, noted above.

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