State v. Thurston

JAMES S. GETTY, Ret’d, Specially Assigned' The State of Maryland entered this appeal from a jury verdict awarding damages to the owner of a racehorse that was injured while training at a State owned racetrack. Background A racehorse training center located in Cecil County is within the Fair Hill Natural Resources Management Area. Although the training center occupies land owned by the State, it is a separate legal entity. A grass racetrack, owned and operated by the State, is situated in the same area, but is not part of the training center.

Racehorse owners may bring their horses from the training center to the track and exercise them, subject to the following conditions: 1. Purchase of a $25.00 gate pass for each use of the track. 2. Passes must be turned in at the gate. 3. Horses are not allowed inside the traffic cones placed on the track. [1] ⁶⁶⁰ Facts On August 30, 1994, Gerald Thurston, the appellee herein, brought his horse, Lifespecialady, to the track.

He hired a rider, Theresa Bouchard, to exercise the horse. Across from the entrance gate to the track was a forty-foot opening in the inside rail of the track. The opening allowed mowers and other vehicles access to the infield for maintenance of the infield. The manager of Fair Hill, Edward Walls, testified that it was customary to leave the forty-foot section open to facilitate the maintenance of the infield.

The only witness to what occurred on August 30, 1994, was the rider, Ms. Bouchard. She testified that the rail opening was directly across the track from the entry gate, but she did not notice the opening in the rail. As the horse was approaching the homestretch the second time around the track, she veered suddenly to the left toward the rail opening. As Lifespecialady went through the opening, the rider pulled her to the right, but the horse struck the open end of the rail, and a metal rod near the rail became impaled in her right side.

Ms. Bouchard was thrown free as the horse fell. Fortunately, she was not seriously injured. The appellee had gone to the grandstand to observe the horse through binoculars. He did not notice the open rail as the horse and rider entered the track, and he did not see the horse and rider fall.

Park Ranger Melvin Adam prepared an incident report. The orange cones placed around the track were thirty-two feet from the inside rail and the open area in the rail measured forty-feet, according to Adam. The riders were required to exercise their horses to the right of the cones. The appellee testified that the horse recovered, but she won only one race in 1995 and he gave her away because she was no longer competitive.

The jury decided that the track was negligently maintained and returned a verdict for the appellee amounting to $43,642.00. Of that sum, the value of the horse prior to the accident was assessed to be $30,000; the $13,642 balance covered veterinary expenses. ⁶⁶¹ Appellant raises the following issues, which we have restated: 1. Whether the court erred in denying appellant’s Motion for Judgment at the close of appellee’s case for failure to establish primary negligence and failure to offer evidence that appellant breached a duty to warn appel-lee of a latent defect. 2. Whether the court erred in denying appellant’s Motion for Judgment based upon appellee’s contributory negligence for failing to observe the alleged negligent condition of the railing prior to running the horse. 3.

Whether the court erred in allowing appellee to introduce evidence of subsequent remedial measures. DISCUSSION Duty to Warn Admittedly, the owner of the horse was a business invitee while exercising his horse at the racetrack adjacent to the Fair Hill training complex. As such, he was owed a duty of ordinary care by DNR to maintain the premises in a reasonably safe condition. Included in the duty of ordinary care is the obligation to warn business invitees of latent or concealed dangers.

See Lloyd v. Bowles, 260 Md. 568, 572 , 273 A.2d 193 (1971). In Bowles , the plaintiff tripped while exiting a doorway at a beauty parlor which was being remodeled. A plaintiffs verdict was set aside by the trial court. The Court of Appeals affirmed, stating that, even if the store owner realized that the doorway created an unreasonable risk of harm, there was no evidence that the owner had any reason to believe that the defect would not be discovered by the plaintiff.

We do not agree that the appellee in the present case has established either a concealed or latent defect in the premises. The gap in the rail was forty feet wide and directly across the track from where a rider and horse entered the track. A forty-foot opening in a continuous white rail was ⁶⁶² certainly obvious to anyone walking a horse along the orange cones thirty-two feet from the rail. The rider, whether walking or galloping the horse, was some six feet above the ground with an unobstructed view of the track.

Clearly, there was no latent defect that required any warning by the owner of the track. Failure to Correct Unsafe Condition DNR also alleges that there was no primary negligence because the condition was not latent, and, therefore, the court should have granted its Motion for Judgment at the end of the plaintiff’s case. Whether the evidence is sufficient to require that a court submit a case to the jury requires that the trial court assume the truth of all credible evidence on the issue and of all inferences deducible therefrom, and consider them in a light most favorable to the party against whom the motion is directed. McSlarrow v. Walker, 56 Md.App. 151, 158 , 467 A.2d 196 (1983).

Impala Platinum v. Impala Sales, 283 Md. 296, 328 , 389 A.2d 887 (1978), requires: If there is any legally relevant and competent evidence, however slight, from which a rational mind could infer a fact in issue, then a trial court would be invading the province of the jury by declaring a directed verdict. In such circumstances, the case should be submitted to the jury and a motion for a directed verdict denied. Maryland has gone almost as far as any state in holding that meager evidence of negligence is sufficient to submit the case to a jury. McGarr v. Balto.

Area Council, Boy Scouts of America, Inc., 74 Md.App. 127, 132 , 536 A.2d 728 (1988). The evidence presented by the appellee included testimony from James Michael Rogers, a horse trainer and former jockey, who stated that leaving open part of the rail, inside or outside, creates a “positively unsafe” condition, because racehorses are trained to focus on the rail. Rogers believed that “this horse focused on something it was just not used to seeing and made a decision that none of us can really answer for.” ⁶⁶³ Ms. Bouchard stated that the horse was traveling approximately 35 miles per hour and “ducked in” the open gap in the rail. She added that when you are going that fast on a 1,500 pound animal “there’s nothing you can do.” Christine Claggett, called by DNR as an expert, owns and operates a training center which includes a racetrack and a starting gate.

Earlier in her distinguished career, she was the leading amateur jockey in the United States in 1993 and 1995. Ms. Claggett stated that she has a sixteen-foot opening into the infield of her % mile track and she has never had a horse attempt to leave the track because of the opening. Obviously, she did not consider the open area to be a negligent act. She explained that “when you are on a horse it can make its decisions, you don’t always have control over the situation.” We perceive no error in the trial court’s denial of DNR’s motion for judgment at the end of the State’s case.

One expert believed the open rail area created a dangerous condition. A second expert disagreed. Both agreed that racehorses are unpredictable. Whether the failure to close the inner rail thirty-two feet distant from the area where the horses were running created a dangerous situation which was a proximate cause of the injury to the horse was for the jury to determine.

It was not for the court to resolve as a matter of law. Contributory Negligence In its second issue, DNR asserts that the racehorse owner was guilty of contributory negligence as a matter of law. The support for this argument is the failure of the owner to observe the open area of the inner rail which was in plain view. DNR relies on the case of Hynes v. Hutzler Brothers Co., 261 Md. 345, 345 , 276 A.2d 99 (1971).

In that case, a customer fell in a Hutzler Store after colliding with a store employee. She sued the store. In her testimony, however, she admitted that she did not notice the employee at the time they collided. The court found her guilty of contributory negligence as a matter of law due to her failure to look where ⁶⁶⁴ she was going.

A similar holding was applied in Southern Md. Electric Co-op. v. Blanchard, 239 Md. 481, 490 , 212 A.2d 301 (1965). In that case, a man installing an antenna above his trailer was injured when the antenna came in contact with an uninsulated wire. He said he did not see the wire. The Court held that “the law ordinarily charges ... a person of unimpaired vision with seeing an object which, if he had used his senses, he, in the nature of things, must have seen.” Blanchard, 239 Md. at 490 , 212 A.2d 301 .

The cases cited are factually different from the case before us. The element added in the present case involves the unpredictable reaction of a racehorse to any distraction that may arise while the horse is running at or near full speed. All of the witnesses seem to agree that the horse decides the direction it is going and the rider has no control over a sudden change by the animal. Whether such a change is reasonably foreseeable is for the jury to decide.

The track was % of a mile long. A forty-foot gap is minuscule in relation to the length of the track. It is not unreasonable to conclude that the rider’s attention as she entered the track was centered on the horse and the ground outside the cones, where she was required to ride. The owner went to the grandstand to clock the horse’s speed.

The proximity of the grandstand to the opening in the rail, or where the owner was located in the grandstand, was not established. He said he would have asked that the rail be closed if he had seen the opening. Whether he could have seen it is unclear. We do not conclude, however, that his decision to allow an accomplished rider to take the horse on the track, while he went to a higher area to view the horse run, was contributory negligence as a matter of law.

The absence or presence of contributory negligence is generally for the jury to decide. Moodie v. Santoni, 292 Md. 582, 589 , 441 A.2d 323 (1982) (quoting Jackson v. Forwood, 186 Md. 379 , 47 A.2d 81 (1946)). It is only where the minds of reasonable persons cannot differ that the court is justified in deciding the ⁶⁶⁵ question as a matter of law. Brown v. Bendix Aviation Corp., 187 Md. 618 , 51 A.2d 292 (1947).

Before the doctrine of contributory negligence can be invoked, it must be demonstrated that the injured