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Underwood v. Atlantic City Racing Ass'n

November 27, 1996

SIDNEY UNDERWOOD, PLAINTIFF-APPELLANT,
v.
ATLANTIC CITY RACING ASSOCIATION, A NEW JERSEY CORPORATION, T/A ATLANTIC CITY RACE COURSE AND CALVI ELECTRIC CO., DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Camden County.

Approved for Publication December 6, 1996.

Before Judges Shebell, Baime and P.g. Levy. The opinion of the court was delivered by P.g. Levy, J.A.D.

The opinion of the court was delivered by: Levy

The opinion of the court was delivered by

P.G. LEVY, J.A.D.

Plaintiff, a professional jockey, sustained catastrophic injuries when she was thrown from her horse during a race at the Atlantic City Race Track on June 19, 1992. The thrust of plaintiff's claim was that defendants' negligence affected the track's rail shadow which caused the horse to fall, throwing plaintiff to the ground. Plaintiff alleged that Atlantic City Racing Association (ACRA) was negligent for failing to provide a facility "reasonably safe for the uses to which it was properly put," and Calvi Electric Co. was negligent in the maintenance and operation of the lighting system at the track. Prior to empaneling a jury, the trial Judge granted ACRA's motion in liminie and held that the appropriate standard of care to which defendants would be held was reckless or intentional conduct. Then, in a procedure akin to summary judgment, the Judge found the evidence presented was insufficient to permit a jury to decide that defendants' conduct was reckless or intentional. By order of February 20, 1996, plaintiff's complaint was dismissed and judgment was entered for defendants. We reverse and remand the matter for trial.

Each party presented the trial Judge with reports from expert witnesses. Plaintiff had two witnesses: John Forbes, an experienced thoroughbred racing horse trainer, and William Poznak, an engineer; ACRA offered a report from Walter Blum, the State Steward for the racing industry in Florida. Forbes reviewed a videotape of the race in which plaintiff was injured and noted he was "familiar with the layout of the Atlantic City Race Track as it was at the time of the accident." He discussed that a crucial safety factor was sufficient and proper illumination and "if possible, the rail as well as the arrangement of the lighting towers should be established to minimize the shadows that may be created through the interaction of the light with these structures. It is essential that the track be laid out in such a fashion as to minimize shadows on the racing surface and that no dim or inconsistent areas are created through artificial conditions." It was his opinion that "the shadow immediately adjacent to the rail is clearly visible on the videotape and was a contributing factor in the accident of Sidney Underwood, as it appears that the horse ... did not wish to either step on the shadow or cross over in the area closer to the rail beyond the shadow."

Poznak reviewed a set of plans of the racetrack which revealed that the architect intended to provide "twenty foot candles of light at all portions of the racetrack surface. Each light fixture/bulb had a definite purpose and destination in carrying out that intent." His inspection of the track and review of the maintenance records Calvi provided "revealed no effort was made during maintenance of the lights and stanchions to conform to the requirements of providing twenty foot candles for each area of the track." He concluded that:

At the time of the accident in question, the defendants had deviated from the standard in the industry and had deviated from the intended lighting for this specific track through a series of actions and inactions regarding the care and maintenance of the lighting equipment subsequent to the initial installation, and which resulted in the creation of a shadow on the traveled portion of the racetrack, which, as Mr. Forbes has indicated, should have been avoided.

Blum also reviewed the videotape of the race. In his opinion "Ms. Underwood while astride [the horse] approaches the vicinity of the 3/8 pole and running along the rail, simply gets caught in very tight quarters as the horses on her outside change leads and come in to make the turn, as all horses do." He stated he understood "Forbes is of the opinion that [plaintiff's] horse didn't want to step on the shadow cast by the inner rail and in so doing caused the animal to collapse and fall." Blum disagreed, stating he did "not believe that the shadow caused the horse to collapse and fall. I have never seen a horse collapse and fall due to a shadow. Every racetrack in the world has a shadow obvious to see either at daytime or nighttime caused by the natural sun, or as in [plaintiff's] case, lights." He maintained that the horse never jumped or tried to jump over a shadow but "simply [was] put in too tight a position to maintain stride and falls," that plaintiff was "caught in the wrong place at the wrong time and down she goes"; he concluded that such an accident "goes with the territory, and that is a fact all jockeys know and accept."

Four months before the trial, another Judge considered ACRA's motion for summary judgment in which ACRA posited that "the only duty owed to plaintiff ... was to refrain from reckless or intentional conduct." ACRA cited Crawn v. Campo, 136 N.J. 494, 643 A.2d 600 (1994), as authority for its claim. The motion Judge considered the contents of the Forbes and Poznak reports and denied the motion. He specifically held the applicable standard of care to be ordinary negligence, not reckless or intentional conduct. In leaving it to a jury to determine the credibility and the weight of the expert testimony, the Judge ruled:

It would appear from the documents filed that ... created and knew of the condition which allegedly caused the accident. On that basis, even if the standard was reckless and intentional conduct, the plaintiff would meet the standard. Secondly, this is a work-place type accident, and it is the duty of the owner of the premises to provide a safe place for persons who are employed by it or employed by others who require the plaintiff to perform the plaintiff's services. ... The standard here is a mere negligence standard. But even if the standard is reckless and intentional conduct, this plaintiff has alleged sufficient facts supported by his expert reports. (emphasis added).

Additionally, Calvi brought a motion for summary judgment, and it was denied because there was a material factual question as to what was required of Calvi by ACRA.

"The 'law of the case' doctrine sometimes requires a decision of law made in a particular case to be respected by all other lower or equal courts during the pendency of that case." State v. Reldan, 100 N.J. 187, 203, 495 A.2d 76 (1985). "Prior decisions on legal issues should be followed unless there is substantially different evidence at a subsequent trial, new controlling authority, or the prior decision was clearly erroneous." Atlantic Employers Ins. Co. v. Chartwell Manor School, 280 N.J. Super. 457, 470, 655 A.2d 954 (App. ...


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