University of Vermont AAHS

Berry v. Delaware Racing Assoc.


Delaware Superior Court
UNPUBLISHED, 1998 WL 473006
March 17, 1998


Summary of Opinion

Plaintiff was a race track trainer.  She was seriously injured when the horse she was riding spooked and ran for the exit.  A track outrider attempted unsuccessfully to stop the runaway horse but plaintiff was thrown from the horse.  The jury found that the track was negligent but that the outrider was not, although there was no evidence to support the track’s negligence in the placement or maintenance of the track perimeter.

The trial judge believed that the jury did not correctly understand the issues presented to it for decision, so it granted the defendant a new trial.  However, it refused to decide the case finally in favor of the defendant.


Text of Opinion

This is a claim for personal injuries which were sustained by Lisa Berry  ("Berry") when she was thrown from a horse at Delaware Park. Berry was employed by various horse owners and trainers to exercise horses. On the day of the accident she had completed her exercise regime on Four Dancing Hooves and was riding the horse toward the barn when the horse was "spooked" for some unknown reason and began running toward the exit point on the track, called the "gap". It was well known to Berry and uncontradicted at the trial that letting the horse enter the gap area at a gallop was fraught with potential danger for both the rider and the horse because of the change in the running surface and the other traffic in the area. Berry hollered, to attract attention to her predicament, particularly the attention of the outrider  the track "policeman", who was responsible for stopping run away horses.

 The outrider responded to the call by positioning himself "beyond the gap", i.e. at a position on the side of the gap furthest from Berry. Such placement necessarily meant that the plaintiff had to control the horse as it ran across the width of the gap, an opening of approximately 40 feet. The outrider intended to run alongside the plaintiff's horse and stop the horse by seizing the bridle. The plaintiff contended that the outrider's response to her emergency was negligent in that placing himself beyond the gap, instead of before the gap, was the wrong decision in view of the propensity of a horse to enter the gap.

 Stopping run away horses is occasionally required from outriders; and the need to provide the service is the reason why no horse is permitted to train or run on any track at Delaware Park unless an outrider is present.

 As Berry approached the outrider, her horse suddenly changed direction, ducking into the gap and throwing the plaintiff onto the fence which borders the gap and the track. The fence was built as a break away, so that a rider coming into the fence would have the benefit of a yielding structure, rather than a rigid one. A second negligence issue in the case relates to maintenance of the fence. The plaintiff argued that fence was in disrepair, the vertical support for the fence having broken loose from the horizontal member. The plaintiff contends that she was whipped off the horse and around the vertical support and that the failure to maintain the fence in proper repair caused her injuries. There was a factual dispute at trial as to whether or not the fence was properly maintained.

 The case was tried November 3 6, 1997. The verdict sheet was answered as follows:

1. Do you find that the outrider was negligent?

X     Yes  No

2. Do you find that the outrider's negligence was a proximate cause of injury to Lisa Berry?

      Yes  X  No

3. Do you find that Delaware Racing Association was negligent in its maintenance of the fence?

X     Yes  No

4. Do you find that Delaware Racing Association's negligence was proximate cause of injury to Lisa Berry?

X     Yes  No

5. Do you find that Lisa Berry assumed the risk of injury?

      Yes  X  No

6. What is your damages award?

$ 350.000

 At the close of the plaintiff's case, the defendant moved for judgment as a matter of law pursuant to Superior Court Civil Rule 50(a), on the basis that plaintiff had failed to prove that defendant's alleged negligent maintenance of the fence was the proximate cause of injury to her. The plaintiff acknowledged that no testimony had been offered to separate the injuries caused by the fall, from the injuries caused by the fence, although post trial the plaintiff argues that "[w]hat needs to be shown is the injuries, which in this case mainly revolves around fractured bones in the right and left leg and a stretched ACL, would not have occurred except as a result of the negligence of the Defendant."

 Defendant now renews its motion pursuant to Rule 50(b). In the alternative, defendant seeks a new trial pursuant to Rule 59. The two motions serve entirely different purposes. Burgos v. Hickok, Del.Supr., 695 A.2d 1141 (1997).

 The jury has returned a verdict which is difficult to understand. While there was a split in the testimony regarding the outrider's duties and his opportunity to rescue the plaintiff from the predicament she encountered, the jury resolved that question by finding that the outrider was negligent. Surprisingly, considering the circumstances of the accident, the jury then found that the outrider's negligence was not a proximate cause of her injuries. The jury then concluded that defendant raceway was negligent in failing to fix the fence and that its negligence was a proximate cause of the plaintiff's injuries.

 The difficulty here is that the only physician testifying at the trial, Dr. Kalamchi, testified that the plaintiff sustained injuries as a result of being thrown from the horse, and he described the treatment she has required. However, Dr. Kalamchi did not indicate that the plaintiff's injuries would have been any different had the break away fence been in good repair versus poor repair at the time of the incident. In other words, there is no competent medical evidence to separate the nature and extent of the injuries which the plaintiff would have sustained by virtue of her fall off the horse onto the fence from any additional injuries the plaintiff sustained because she came against a vertical support of the fence (according to her recitation of the facts).

 I cannot reconcile the conclusions of the jury with the evidence presented as to the accident. If the outrider was negligent in failing to prevent the horse from entering the gap, then his negligence must, logically, have been the cause of the plaintiff's fall and her subsequent injuries.

 I am concerned about the possibility that the jury decided to impose liability on the corporate defendant rather than on an individual, in spite of the fact that the conduct of the individual, the outrider, would be imputed to the employer and the jury was so advised. I am also concerned that the jury was not instructed that the negligence of the outrider would include all subsequential damages, but that the negligence of the track in failing to repair the fence would only include such damages as were enhanced by that negligence.

 While the defendant now argues enhanced injuries, citing General Motors v. Wolhar, Del.Supr., 686 A.2d 170 (1996), I cannot recall (and no transcript pages have been provided revealing) any argument regarding enhanced injuries. No jury instruction regarding such a limitation on damages was requested or presented to the jury. The jury was instructed in the usual manner that they must find that the negligence of the defendant was a proximate cause of her injuries. Since, in reality, the negligence of the outrider and the negligence of the track were one and the same for payment purposes, there was no attempt to present competent evidence in a way which would assist the jury in deciding which acts of negligence would produce which injuries.

 The accident in this case took place in 1993; that's a long time ago. The plaintiff has a permanent injury, the nature and extent of which was not seriously contested. Viewing all the evidence in a light most favorable to the defendant, and drawing all reasonable influences therefrom, I cannot conclude that a verdict for the defendant must be entered. Super. Ct. Civ. Rule 50(b). Nevertheless, the verdict is "at least against the great weight of the evidence". Storey v. Camper, Del.Supr., 401 A.2d 458, 465 (1979). The defendant's motion for judgment as a matter of law is DENIED. The defendant's motion for a new trial is GRANTED.


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