There are certain inherent risks to horse racing, but a New York state judge ruled recently that the New York Racing Association may not use the doctrine of assumption of risk in all cases.
Queens County Judge Augustus C. Agage of the New York Supreme Court dismissed NYRA's defense that horse owner Jacob Haddad understood the risk when his 3-year-old filly Salsa Mambo was euthanized following a July 15, 2012, race at Belmont Park. The filly, carrying a $75,000 claiming tag in the optional claiming race, stumbled at the start, throwing jockey Cornelio Velasquez to the turf, then followed the field around the inner turf course and to the finish of the 1 1/16-mile race.
Then, according to the lawsuit filed by Haddad and attorney Andrew Mollica, outrider Althea Roy “attempted to ‘catch' the speeding Salsa Mambo by running toward her with her outrider horse at extreme speed.”
Salsa Mambo went to the outside of the course and jumped a bush entering the area between the inner turf and the outer Widener turf course. In that area, the suit alleges, Salsa Mambo stepped on an exposed sprinkler head or heavy metal plate covering the sprinkler, fracturing her left front leg. She was euthanized by NYRA veterinarian Anthony Verderosa.
The complaint calls the actions by outrider Roy as “unwarranted, irresponsible and dangerous” and alleges she and other NYRA outriders “were not hired based on any cognizable criteria; were not trained and skilled to the necessary level, much less adequately supervised, to properly perform the duties of protecting the safety of horses and riders on-track; were completely unsupervised in their activities and were never assessed in the performance of their duties against any objective performance standard.”
It also claims NYRA should have known the absence of an outside rail on the inner turf course was “extremely dangerous and a deviation from industry standards and protocols, as well as a deviation from NYRA's responsibility as set forth in its franchise agreement.”
As a result of what the complaint said is negligence on NYRA's part, plaintiff Haddad is seeking a jury trial and damages in excess of $500,000 in future purse earnings and residual value as a broodmare or broodmare prospect.
NYRA offered several defenses in pretrial communications, foremost among them Haddad's assumption of risk. That defense was dismissed, and the case moves forward.
“There is no evidence whatsoever,” Judge Agate wrote, “that plaintiff could have expected that the horse at issue to have been injured in the manner as occurred in this case. The horse did not break down from exhaustion or suffer a malady due to an underlying physical condition. Instead, it appears the horse was injured when a seemingly unskilled outrider chased the horse to an unsafe area where it collided and injured itself. Moreover, this court has found no authority for the proposition that the doctrine of assumption of the risk is applicable in actions to recover damages for injury to property.”
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