| Toro v New York Racing Assn., Inc. |
| 2012 NY Slip Op 03633 [95 AD3d 999] |
| May 8, 2012 |
| Appellate Division, Second Department |
| Richard Toro et al., Respondents, v New York RacingAssociation, Inc., Defendant/Third-Party Plaintiff-Appellant-Respondent, and Volume Services,Inc., Appellant-Respondent, et al., Defendant. Wackenhut Corporation, Third-PartyDefendant-Respondent-Appellant. |
—[*1] Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick and Glenn Kaminskaof counsel), for third-party defendant-respondent-appellant. Felice J. Muraca, Mineola, N.Y. (Mitchell Dranow of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendant/third-party plaintiff,New York Racing Association, Inc., and the defendant Volume Services, Inc., appeal from somuch of an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered July 5, 2011,as denied their motion for summary judgment dismissing the complaint insofar as assertedagainst them, and the third-party defendant cross-appeals, as limited by its brief, from so much ofthe same order as denied its cross motion for summary judgment dismissing the complaintinsofar as asserted against the New York Racing Association, Inc., and the third-party complaint.
Ordered that the order is reversed insofar as appealed and cross-appealed from, on the law,with one bill of costs payable by the plaintiffs to the defendant/third-party plaintiff, New YorkRacing Association, Inc., and the defendant Volume Services, Inc., and the third-party defendant,appearing separately and filing separate briefs, the motion of the defendant/third-party plaintiff,New York Racing Association, Inc., and the defendant Volume Services, Inc., for summaryjudgment dismissing the complaint insofar as asserted against them, and the third-partydefendant's motion for summary judgment dismissing the complaint insofar as asserted againstthe New York Racing Association, Inc., and the third-party complaint, are granted.
The doctrine of primary assumption of the risk provides that " 'by engaging in a sport orrecreational activity, a participant consents to those commonly appreciated risks which areinherent in and arise out of the nature of the sport generally and flow from such participation' "(Kirkland v Hall, 38 AD3d 497,498 [2007], quoting Morgan v State of New York, 90 NY2d 471, 484 [1997]; see Anand v Kapoor, 15 NY3d946, 947-948 [2010]). The principle of primary assumption of risk extends to [*2]those risks associated with the construction of a playing field andany open and obvious condition thereon (see Sykes v County of Erie, 94 NY2d 912, 913[2000]; Palladino v Lindenhurst UnionFree School Dist., 84 AD3d 1194, 1195 [2011]; Brown v City of New York, 69 AD3d 893 [2010]; Manoly v City of New York, 29 AD3d649, 649-650 [2006]). "Moreover, it is not necessary to the application of the doctrine thatthe injured plaintiff may have foreseen the exact manner in which the injury occurred 'so long ashe or she is aware of the potential for injury of the mechanism from which the injury results' "(Joseph v New York Racing Assn.,28 AD3d 105, 108 [2006], quoting Maddox v City of New York, 66 NY2d 270, 278[1985]). The assessment of awareness must take place against a particular plaintiff's skill andexperience, and "when an experienced athlete . . . is aware of the existence of aparticular condition on the premises where the activity is to be performed, and actuallyappreciates or should reasonably appreciate the potential danger it poses, yet participates in theactivity despite this awareness, he or she must be deemed to have assumed the risk of injurywhich flows therefrom" (Joseph v New York Racing Assn., 28 AD3d at 111; seeMorgan v State of New York, 90 NY2d at 486; Maddox v City of New York, 66NY2d at 278). With respect to the sport of horse racing, there are inherent risks of falling from ahorse or a horse acting in an unintended manner (see Turcotte v Fell, 68 NY2d 432,438-439 [1986]; Kirkland v Hall, 38 AD3d at 498; Joseph v New York RacingAssn., 28 AD3d at 111; Verro v New York Racing Assn., 142 AD2d 396, 400[1989]). While a plaintiff will not be deemed to have assumed the risk of intentional or recklessconduct or an unreasonable increase in the risk (see Zayat Stables, LLC v NYRA, Inc., 87 AD3d 1063, 1063-1064[2011]; Millan v Brown, 295 AD2d 409, 410 [2002]), where the risks of the activity arefully comprehended or perfectly obvious, the defendant has performed its duty by makingconditions as safe as they appear to be (see Turcotte v Fell, 68 NY2d at 439; Joseph vNew York Racing Assn., 28 AD3d at 108; Verro v New York Racing Assn., 142AD2d at 399).
Here, the defendants New York Racing Association, Inc., and Volume Services, Inc.(hereinafter together the defendants), and the third-party defendant, Wackenhut Corporation,sustained their burden of demonstrating, prima facie, that the plaintiff Richard Toro was aprofessional exercise horse rider with over a decade of experience. He was aware of the risk offalling from a horse, having fallen off several times over the course of his career. The subjectaccident occurred when he rode the horse by a picnic area that was situated adjacent to the racetrack. Someone opened a large shade umbrella as Toro rode by, which scared the horse andallegedly caused Toro to fall to the ground and sustain injuries. Toro testified at his depositionthat he was fully aware of the picnic area and the tendency for horses to be scared by activity inthe area, particularly the opening of large umbrellas. On the day of the subject accident, Toronoticed significant activity in the picnic area when he first rode the horse by the area beforeexercising it. Nonetheless, he chose to ride by the picnic area again after completing the trainingrun. Consequently, the evidence submitted by the defendants and the third-party defendantestablished that Toro assumed the risk posed by the picnic area (see Turcotte v Fell, 68NY2d at 440; Joseph v New York Racing Assn., 28 AD3d at 108; Verro v New YorkRacing Assn., 142 AD2d at 396). In opposition, the plaintiffs failed to raise a triable issue offact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Accordingly, theSupreme Court should have granted the defendants' and third-party defendant's respectivemotions for summary judgment. Rivera, J.P., Dickerson, Leventhal and Cohen, JJ., concur.[Prior Case History: 2011 NY Slip Op 31923(U).]