Plaintiff Charles’ horse was injured while being trained on defendant’s track at Santa Anita Racetrack. The horse was on the inside turf course when it spooked and became injured when it jumped the rail between it and the barn. The jury awarded damages in the amount of $330,000 but the trial court refused punitive damages. Plaintiff and defendant both appealed.
In this opinion, the Court of Appeals says there is no evidence that the defendant was negligent respecting the turf rail. While the rail had a jagged edge, there was no proof it was that way before the accident and there was some evidence the accident could have caused the jagged condition. Therefore, the Court of Appeals set aside the jury verdict and ordered that the plaintiff take nothing from the trial.
Plaintiffs Ron Charles and Clear Valley Stables sued defendant Los Angeles Turf Club for injuries which plaintiffs' racehorse, King Darius, sustained at Santa Anita Racetrack, a facility owned and operated by defendant. The jury found defendant liable for negligence, and awarded compensatory damages. Plaintiffs appeal the judgment, contending that the trial court erred in refusing to permit an award of punitive damages. Defendant also appeals, maintaining that primary assumption of the risk provides a complete defense to plaintiffs' lawsuit, and that there is insufficient evidence to support the verdict. We agree with this last contention, and so reverse.
Plaintiffs purchased King Darius, a five‑year‑old thoroughbred gelding, for approximately $84,000 at an auction in England on October 7, 1999. The following month, King Darius was flown to Southern California. Thereafter, Sanford Shulman began training the horse at the Santa Anita Racetrack ("Santa Anita"), preparing it for its first race in the United States.
King Darius was injured on the morning of December 27, 1999, during a workout session on the turf, or grass, track. Shortly after entering the turf track, King Darius "spooked," unseated his mount and began to run toward Barn 38, his "stabling home." He attempted to jump the gate that separated the main dirt track and the turf track. While his front legs cleared the gate, his hind legs did not, and he struggled for some period of time before breaking free and continuing on to Barn 38. The injuries to the horse's legs were severe, and did not heal sufficiently to permit him to resume training as a racehorse. At the time of trial, plaintiffs were attempting to find a home for King Darius, but found it difficult due to the appearance of his injuries, including "grotesque looking back legs." Thus, King Darius had no prospects as a racehorse, show horse, or pleasure horse.
Plaintiffs sued defendant and All Temp Products, the manufacturer of the rail, on theories of strict liability, negligence, and intentional and negligent interference with prospective economic advantage. After a demurrer and motion to strike, the claims for interference with prospective economic advantage were dismissed, and the prayer for punitive damages was stricken. Additionally, the trial court granted defendant's nonsuit on the strict liability claim following plaintiffs' opening statement, which removed All Temp Products from the case, and denied plaintiffs' request to amend the complaint to include a claim of punitive damages. Consequently, the case was tried against defendant solely on a negligence theory.
The jury returned a special verdict in favor of plaintiffs, finding that defendant was negligent; that defendant caused damage to plaintiffs; that plaintiffs did not assume the risk of injury suffered by King Darius; and that the total amount of damages incurred by plaintiffs was $330,000. A judgment in that amount was entered against defendant on February 13, 2002.
Thereafter, defendant filed a Motion for Judgment Notwithstanding the Verdict pursuant to Code of Civil Procedure section 629, arguing that there was no evidence to support a verdict in favor of plaintiffs, as well as a Motion for New Trial pursuant to Code of Civil Procedure section 657. The trial court denied both motions.
Both parties timely appealed. Plaintiffs cite as error the trial court's denial of their motion to amend the complaint to include a claim for punitive damages. Defendant contends that the doctrine of primary assumption of the risk serves as a complete bar to recovery, and that, in any event, there is insufficient evidence to support the verdict. We conclude that defendant's latter argument has merit, and consequently determine that the trial court erred in denying defendant's motion for judgment notwithstanding the verdict.
Plaintiffs presented two scenarios of defendant's negligence: First, they argued that the racetrack contained a jagged rail on which King Darius was injured, and that defendant was negligent for failing to remedy this dangerous condition, essentially a theory of premises liability. Second, plaintiffs maintained that the turf track on which King Darius was injured did not have an outside rail as was required by regulations of the California Horse Racing Board, and that such failure constituted negligence per se.
Defendant maintains that application of the doctrine of primary assumption of the risk is a complete bar to plaintiffs' recovery. Defendant also maintains that there is insufficient evidence to support the verdict based on either of the negligence theories proffered by plaintiffs.
We begin our discussion with the doctrine of assumption of the risk. In Knight v. Jewett (1992) 3 Cal.4th 296, our Supreme Court considered application of this doctrine to sports activities. It held that a participant in an inherently dangerous sport is owed no duty of care by a co‑participant or landowner unless he or she is injured by a co‑participant's intentional or reckless behavior totally outside the range of the ordinary activity involved in the sport, or if a co‑participant or landowner increases the risks over and above those inherent in the sport. (Id. at pp. 315‑316; 320‑321.)
"Generally, the participation in an active sport is governed by primary assumption of risk, and a defendant owes no duty of care to protect a plaintiff against risks inherent in the sport. (Knight v.. Jewett, supra, 3 Cal.4th at pp. 315‑316, 320.) In a given active sport setting, the question whether the defendant owes a duty to the plaintiff 'is a legal question which depends on the nature of the sport or activity in question and on the parties' general relationship to the activity, and is an issue to be decided by the court, rather than the jury. [Citation.] Thus, the question of assumption of risk is much more amenable to resolution by summary judgment under a duty analysis....' (Id. at p. 313.) Thus, under Knight a trial court is to determine the question of duty as a function of the scope and definition of a given active sport's inherent risks." (Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1632‑1633.)
That the primary assumption of the risk doctrine applies to the training and exercising of racehorses was established in Shelly v. Stepp (1998) 62 Cal.App.4th 1288, 1291‑1294. Thus, in order to recover from the defendant landowner, plaintiffs were required to establish that defendant's conduct increased the risk of injury inherent in the training of racehorses.
In Knight v. Jewett, the Supreme Court discussed the liability of an owner or operator of property used in an inherently dangerous sport. "The court noted that while property owners ordinarily are required to use due care to eliminate dangerous conditions on their property, some conditions of property 'that otherwise might be viewed as dangerous often are an integral part of the sport itself,' and a property owner has no duty to remove them. (Knight v. Jewett, supra, 3 Cal.4th 296, 315.) For example, the court observed 'although moguls on a ski run pose a risk of harm to skiers that might not exist were these configurations removed, the challenge and risks posed by the moguls are part of the sport of skiing, and a ski resort has no duty to eliminate them. [Citation.]' (Ibid; see also O'Donoghue v. Bear Mountain Ski Resort (1994) 30 Cal.App.4th 188, 193.) In contrast, an owner of a sports facility does have a duty to use due care to remove risks which are not inherent in the sport. The court, using the example of a ski resort, explained the resort owner 'clearly does have a duty to use due care to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm' because this 'type of risk, posed by a ski resort's negligence, clearly is not a risk (inherent in the sport) that is assumed by a participant. [Citation.]' (Knight v. Jewett, supra, 3 Cal.4th 296, 316.)" (Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127, 133‑134.)
In Van Dyke v. S.K.I. Ltd. (1998) 67 Cal.App.4th 1310, our colleagues in Division Three applied the Knight analysis to conclude that primary assumption of the risk did not bar a skier's negligence claim against the owner and operator of a ski facility for injuries sustained when the skier collided with a directional signpost on a ski slope. In that case, the plaintiff struck a steel signpost when attempting to ski a crossover trail leading to a chairlift. Plaintiff sued for negligence and premises liability based on the location and the construction of the sign. The defendant landowner was granted summary judgment in the trial court, on the ground that the claim was barred by primary assumption of the risk. Specifically, the landowner contended that "as a matter of law the signpost was a risk inherent in skiing and vigorous participation in the sport would be chilled by imposing a duty of care regarding the sign, justifying the application of primary assumption of risk." (Id. at p. 1315.) The appellate court disagreed; it pointed to plaintiff's allegation, and evidence tending to show, that the landowner "increased the risk of harm by placing a signpost in the ski run where it was virtually invisible to skiers crossing over to the connector trail to chair lift No. 2." (Id. at p. 1317.) The court concluded that the placement and construction of the sign did not constitute an inherent risk of skiing. (Ibid.) Said the court: "[The landowner] stresses directional signs are necessary to a ski area. We do not suggest otherwise. When a ski area puts signs in a ski run, however, it has a duty to mark the signs so they are plainly visible from all angles to skiers who are skiing on the run. Otherwise, the ski area, by an affirmative act, significantly increases the risk of harm without enhancing the sport. Conversely, making the sign adequately visible has no deleterious effect on the sport." (Ibid.)
The same analysis applies here: An improperly maintained gate on a racetrack is analogous to a negligently placed directional sign on a ski slope. That is to say, notwithstanding that the training of racehorses is an inherently dangerous activity, maintaining a gate in a dangerous condition increases the risk of injury to the participants in that activity without enhancing the essential aspects of the sport of horseracing. We therefore conclude that, pursuant to Knight v. Jewett and its progeny, primary assumption of the risk does not bar plaintiffs' cause of action for premises liability.
Plaintiffs sought to prove their premises liability case by arguing that the gate on which King Darius became entangled contained a jagged edge which caused his injuries. As plaintiffs explain in their respondents' brief on appeal, "Mr. Fontana testified that the railing in question was jagged and unsafe," and cites Reporter's Transcript page 376, lines 13 through 22, as the source of that testimony. Looking at a photograph taken in January 2000, several weeks after the accident, Mr. Fontana stated that the "rail" in the photograph contained sharp, jagged edges. Obviously, a photograph of the gate in question which was taken after the accident is not evidence of the condition of the gate before the accident. And indeed, Mr. Fontana testified that, in his expert opinion, the horse's collision with the gate could have caused the gate to become jagged.
Plaintiffs presented no evidence that defendant failed to maintain the gate in a safe condition, or that the gate was jagged before the impact with King Darius. To the contrary, the only evidence presented at trial on the issue was that the turf course rail, including the gate, was inspected by more than one person, and at regular intervals‑‑multiple times during the course of each day‑‑on the days just prior to, and indeed the day of, the accident. Thus, plaintiffs were left to argue, without the benefit of supporting evidence, that because King Darius's legs were cut up on the gate, the edges of the gate must have been jagged. As we have noted, however, the critical issue was not whether the rail was jagged, but when it became so: before the accident, or upon the horse's collision with it. Because there is no evidence to support a negligence theory based on a jagged edge, the jury verdict based on that theory must be reversed. [FN2]
FN2. Plaintiffs also sought to persuade the jury that, because the damaged rail was not preserved until trial, it must have been jagged before King Darius made contact with it. However, the argument is without logical foundation. Indeed, plaintiffs do not explain how preservation of the rail would have enabled them to meet their burden of proving that it was jagged prior to the accident.
Plaintiffs also presented a second theory of recovery: negligence per se. Plaintiffs argued that the racetrack was in violation of regulations promulgated by the California Horse Racing Board, or the "Board," which, plaintiffs maintained, required that the turf track have a "continuous outside rail."
We begin our discussion by clarifying the terms we will employ. The evidence on appeal indicates that turf course has an "inner rail" which appears to be a continuous oval structure which separates the turf course from the training course, and an "outer rail" which encircles most of the turf track but is interrupted at one point by a "movable gate," which covers the "turf course path ." When the gate is in place, a barrier, consisting of the outer rail and the gate, encircles the entire turf course and separates it from the main course, so that there is no way for the horses to leave the turf course unaided, except to jump the gate or rail. When the gate is moved out of the way, the horses may traverse the turf course path, thus crossing from the main course into the turf course.
In order to avail itself of the negligence per se doctrine, the plaintiff must meet the requirements of the presumption set forth in Evidence Code section 669. [FN3] These include proof that (1) the defendant violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused the injury; (3) the injury resulted from "an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent;" and (4) the plaintiff was among "the class of persons for whose protection the statute, ordinance, or regulation was adopted." (Evid.Code § 669, subd. (a).) It is the plaintiff's burden to come forward with evidence to establish each of the foregoing elements. "The first two elements are normally questions for the trier of fact. The last two elements are determined by the trial court as a matter of law." (Daum v. SpineCare Medical Group, Inc. (1997) 52 Cal.App.4th 1285, 1306.)
FN3. That statute provides as follows:
"(a) The failure of a person
to exercise due care is presumed if:
"(1) He violated a statute, ordinance, or regulation of a public entity;
"(2) The violation proximately caused death or injury to person or property;
"(3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and
"(4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.
"(b) This presumption may be
rebutted by proof that:
"(1) The person violating the statute, ordinance, or regulation did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law; ..."
Plaintiffs relied on the regulations of the Board to establish the per se negligence of defendant. Specifically, plaintiffs contended that the turf track was required to have a "continuous outside rail," that the turf track did not have such a rail, and that King Darius was injured as a result of defendant's failure to maintain such a rail. Plaintiffs relied on the following regulations, as given to the jury, to establish negligence per se:
"Section 1472(a) of [Article 3.5 of the California Administrative Code of Rules and Regulations] stated: 'All racing surfaces, including turf courses, shall have an inner rail, and shall have an outer rail or shadow fence designed to meet the same impact standards as a permanent rail.'
"Section 1472(b) of that Rule stated in pertinent part: 'Permanent rails shall be designed not to collapse or break away when a horse which is running parallel to the rail either bumps, lugs or falls into the rails or posts during normal training or racing.'
"Section 1472(d) of that Rule stated in pertinent part: 'All rails, and rail post covers shall be maintained so as to ensure a smooth surface without jagged, sharp or irregular edges.'
"Section 1472(e) of that Rule stated in pertinent part: 'All permanent inside rail posts shall be of a gooseneck‑type design utilizing at least a 24 inch overhang with a continuous smooth elevated cover extending over the posts.'
"Section 1472(f) of the Rule stated: 'All turf course paths, leading from the inside rail of the main course to the turf course, shall be consistent in appearance with surrounding area. No rails shall be installed on turf course paths which lead from the main course to the turf course.' "
Plaintiffs argued that the turf track was not in compliance with the regulations because it did not have a "continuous outside rail." However, none of the foregoing regulations states that the turf track shall have a continuous outside rail. The only mention of a "continuous" rail is in section 1472(e), which specifies that the inside rail shall be of "a gooseneck‑type design utilizing at least a 24‑inch overhang with a continuous smooth elevated cover extending over the posts." The regulations specify that the outside rail shall meet the same impact standards as a permanent rail (subd. (a)); that all permanent rails "shall be designed not to collapse or break away when a horse which is running parallel to the rail either bumps, lugs or falls into the rails or posts during normal training or racing" (subd. (b)); and that "[a]ll rails, and rail post covers shall be maintained so as to ensure a smooth surface without jagged, sharp or irregular edges" (subd. (d)). As we have seen, plaintiffs presented no evidence that any rail, rail post cover or gate contained a jagged, sharp or irregular edge prior to the accident. Nor was there evidence that the outside rail or gate failed to meet the same impact standards as a permanent rail, or that the gate collapsed or broke away when a horse running parallel with it bumped, lugged or fell into the gate during normal training.
Section 1472(f) specifically covers the area where King Darius was injured. That regulation states that "[n]o rail shall be installed on turf course paths which lead from the main course to the turf course." Jack Williams, the representative of the Board responsible for certifying that defendant met the Board's safety requirements, testified that there was no outside rail at the point where King Darius exited the turf course because section 1472(f) specifies that there shall be no rail at that point. Thus, plaintiffs' argument that defendant violated the regulations by not having a continuous outside rail over the turf course path when the regulation states that there shall be "no rail" over the turf course path is puzzling.
We withhold comment on the ability of a jury to overrule a governmental agency in the latter's interpretation of its own regulations, and assume, without deciding, that plaintiffs met their burden of proving that defendant violated the regulation. We hold, however, that plaintiffs failed to meet their burden of proving another element of the negligence per se doctrine, that is, that "the injury resulted from the kind of occurrence the statute or regulation was designed to prevent." (Daum v. SpineCare Medical Group, Inc., supra, 52 Cal.App.4th 1285, 1306.)
Here, plaintiffs' witness Richard Fontana testified that King Darius would not have attempted to jump over the gate, and thus the injury would not have occurred, had there been a continuous outside rail. This evidence was relevant, if at all, with regard to the second element of the negligence per se doctrine, that the violation proximately caused the injury. However, plaintiffs presented no evidence with respect to the third element of Evidence Code section 669, that is, that the injury to King Darius was the type of injury which the regulation was designed to prevent. A simple reading of the regulation indicates that the purpose of the regulation is to ensure that the rails (and presumably the gate) do not "collapse or break away when a horse which is running parallel to the rail either bumps, lugs or falls into the rail or posts during normal training or racing." There is no indication that the regulations contemplate that a horse and/or rider may be injured if a horse attempts to leave the turf track by jumping over the rail or gate, and that the safety regulations were promulgated to reduce the likelihood and/or severity of such an injury.
In short, the evidence presented at trial established that King Darius's injuries were the result of a very unfortunate accident which occurred in the absence of negligence on the part of the owner, trainer, rider, or training facility. While the loss suffered by plaintiffs as a result of the accident is regrettable, it is not compensable. Consequently, the trial court erred in denying defendant's motion for judgment notwithstanding the verdict. We will therefore direct the trial court to enter judgment for defendant. (Bank of America v. Superior Court (1990) 220 Cal.App.3d 613, 626.)
Because we conclude that plaintiffs were not entitled to judgment in their favor, their appeal of the trial court's ruling denying their request for leave to amend the complaint to include a prayer for punitive damages is moot. Consequently, we dismiss plaintiffs' appeal.
The order denying defendant's motion for judgment notwithstanding the verdict is reversed. The trial court is directed to vacate the judgment and to enter judgment for defendant. Plaintiffs' appeal is dismissed. Defendant is to recover its costs on appeal.
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