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Mary Rose Fertitta-Zepp v. Gaitway Farms

May 20, 2011

MARY ROSE FERTITTA-ZEPP, PLAINTIFF-APPELLANT,
v.
GAITWAY FARMS, INC.; RALPH FERRARA; RICHARD JACK; ERIC TROSTEM AND STAKE YOUR CLAIM STABLES, INC., DEFENDANTS-RESPONDENTS, AND ROSS CROGHAN; EQUINE RACING ENTERPRISES; SHAWN VALLEE AND TODD MARCIANO, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5316-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 16, 2011

Before Judges Fisher and Sapp-Peterson.

Plaintiff, a former racehorse groom who sustained injuries after being attacked by a racehorse, appeals from the trial court order granting summary judgment dismissing her complaint against defendants, Gaitway Farms, Inc. (Gaitway Farms),*fn1 the

owner of the premises where the incident occurred; Ralph Ferrara (Ferrara), Richard Jack (Jack), and Eric Trostem (Trostem),*fn2 the shareholders and officers of Stake Your Claim Stables, Inc. (Stake Your Claim); and Stake Your Claim, the horse's owner.*fn3 We affirm.

I.

The undisputed facts upon which the court relied in reaching its decision establish that plaintiff is an experienced groom who, for several years prior to the incident, worked as a full-time employee of Ross Croghan (Croghan), a racehorse trainer and sole shareholder of Equine Racing Enterprises (Equine Racing). Plaintiff left the employ of Croghan in 2000 after she and Croghan had differences over her request to take a day off so she could "take the Post Office test" because she "wanted to better [her]self." On December 7, 2003, she was kicked in the face by Kelly Mote N,*fn4 a horse owned by Stake Your Claim, trained by Crogan and boarded at Gaitway Farms. The horse kicked her in the face with his hind legs while she was removing it from a device known as an equiciser, an indoor fenced-in exercise track for horses. At the time of the attack, plaintiff was filling in for another groom, Nancy Corley (Corley). The two grooms had an arrangement whereby plaintiff agreed to occasionally cover Corley's Sunday shifts. During those shifts, plaintiff would "tak[e] care" of the horses assigned to Corley, which included cleaning stalls and giving the horses water. Corley testified that "[s]he could put [the horses] on the walker if she wants to while she does the stalls or else put them out on cross ties[,]" and she would not have asked plaintiff to put a horse on the walker, but that "would have been her own decision[.]" Kelly Mote N was one of the horses assigned to Corley. During the eight months prior to the attack, plaintiff covered for Corley at least three Sundays each month. She never complained about Kelly Mote N's disposition or reported any other difficulties with the horse. Croghan was also unaware of any behavior problems with the horse.

During discovery, however, plaintiff obtained a copy of the horse's equipment card. An equipment card is a ledger of all the devices (i.e. earplugs, bridles, boots, bits, etc.) a horse needs for a particular race. It is kept on file at racetracks and primarily used by horse trainers, but the general public can access them upon request. James Kopacz (Kopacz), an equipment manager and horse identifier at the Meadowlands Racetrack, testified in his deposition that he prepared Kelly Mote N's equipment card and wrote the words "bad actor" in the "top right-hand portion" of the card. When asked what he meant by the phrase, Kopacz explained that although he could not remember his specific encounter with the horse, he probably wrote "bad actor" to signify that the animal had given him serious problems while he was inspecting it: "[T]his is a horse that had to do something to me. In the [past fifteen years,] . . . I probably wrote bad actor down on maybe ten horses that have been bad enough that I would do something like that. And these are thousands of horses that I have checked." Kopacz explained that the term "bad actor" was his own term -- not an industry term --which he used to remind himself which horses gave him problems in the past, so he could take proper precautions when inspecting those horses in the future.

Jack testified during his deposition that he never saw the equipment card before buying Kelly Mote N because he was "not the trainer of the horse, therefore, [the] equipment card [would be] meaningless to [him] personally." Croghan, on the other hand, acknowledged he likely reviewed Kelly Mote N's equipment card when he claimed the horse, but denied ever seeing the "bad actor" notation on the card. According to Croghan, equipment cards serve a very limited purpose, "to piece together the horse's equipment." Croghan explained that typically, if a horse has a behavioral issue, the prior trainer or caretaker would relay that information to the new trainer and no such information was conveyed to him at the time Kelly Mote N was purchased.

Stake Your Claim moved for summary judgment, arguing plaintiff did not demonstrate that it knew or should have known about Kelly Mote N's violent propensities before the accident. Plaintiff opposed the motion, arguing the "bad actor" notation was sufficient to give Stake Your Claim at least constructive knowledge of the animal's violent temperament. The motion judge granted summary judgment, finding that plaintiff failed to present any evidence that Stake Your Claim had actual or constructive notice of any dangerous propensities of Kelly Mote

N. Likewise, the court concluded there was no evidence the individual shareholders, who delegated the training and care of Kelly Mote N to Croghan, had actual or constructive notice of the horse's dangerous propensities. The present appeal followed.

On appeal, plaintiff urges that genuinely disputed issues of fact precluded the grant of summary judgment in favor of ...


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