Hardy v. Delta Downs, Inc.

599 So. 2d 364, 1992 La. App. LEXIS 1166, 1992 WL 76761
CourtLouisiana Court of Appeal
DecidedApril 16, 1992
DocketNo. 90-995
StatusPublished
Cited by1 cases

This text of 599 So. 2d 364 (Hardy v. Delta Downs, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hardy v. Delta Downs, Inc., 599 So. 2d 364, 1992 La. App. LEXIS 1166, 1992 WL 76761 (La. Ct. App. 1992).

Opinion

DOUCET, Judge.

This appeal arises from a jury verdict in favor of plaintiff, Kerry D. Hardy (Hardy), for injuries she sustained while participating as a jockey when her horse lunged out of the starting gates seconds before the race began at the Delta Downs Race Track.

Hardy brought this action seeking to recover damages for injuries sustained when she fell from her horse after it surged prematurely through the starting gates. Named as defendants were Delta Downs, Inc. (Delta), and Clay Puett’s True Center Gate Company, Inc. (Puett), who manufactured the gates used at Delta Downs. After answers to the petition were filed, Puett moved for summary judgment and the district court granted the motion and dismissed the claim against it. After trial on the merits, a jury verdict was entered against Delta awarding damages of $110,-500.00 to plaintiff Kerry D. Hardy. It is from this verdict that defendant, Delta, appeals.

LIABILITY

The defendant asserts that the jury erred in holding that Hardy carried her burden of proof of Delta’s negligence or strict liability and in failing to find that Hardy was totally or comparatively at fault. These are issues of fact. The applicable standard of review is stated in the case of Trahan v. [366]*366State, Dept. of Transp. & Dev., 536 So.2d 1269 (La.App. 3rd Cir.1988), writ denied, 541 So.2d 854 (La.1989).

The finding of liability by the trial court is a finding of fact which a reviewing court may not disturb unless, (a) the record evidence does not furnish a sufficient basis for that finding, or (b) the finding is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Co., 283 So.2d 716 (La.1973).

Trahan, supra, at p. 1271.

Defendant, Delta, argues that it did not breach any duty to protect Hardy from the injury or harm of which she complained, nor did Delta possess or control an unreasonably dangerous instrumentality in the manner normally used.

As stated in Trahan, supra, at p. 1271-1272:

It is well established that the “duty-risk” analysis is the process employed in Louisiana for determining whether liability exists under the facts of a given case. The following questions are considered in this analysis:
(1) Was the conduct in question a cause-in-fact of the resulting harm?
(2) Was there a duty owned by the defendant to protect the plaintiff from this type of harm arising in this manner?
(3) Did the defendant violate the duty owed?
(Citations omitted)

Applying the duty-risk analysis to the facts of the case herein requires a determination of whether or not the plaintiff proved that the failure to close the starting gates or the inaction of the assistant starter was a cause-in-fact of the accident.

An act of [sic] omission is considered to be a cause-in-fact of harm to another if it was a “substantial factor” in bringing about the accident.
* * * * * *
As noted in the restatement, factors which may be considered in determining whether the actor’s negligence is a substantial factor include “whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm ...”

Trahan, supra, at page 1272. Testimony presented at trial established that the assistant starter’s inaction was a substantial factor in bringing about the accident. Richard Huval, the starter for Delta for 15 seasons, affirmed that the purpose of the assistant starter’s presence inside the starting gates is to maintain control of the horses. Huval further admitted that an assistant starter would want to take extra precaution with a young, juvenile horse such as Hardy’s. Richard Breaux (Breaux), assistant starter for Delta, was assigned to Hardy’s horse. Breaux testified that after the horse was loaded into the gates, he pulled the horse up a little bit, then eased up rather than holding a bind on the horse. Breaux added that about three seconds later, the horse went back, hit the tailgate again, and immediately lunged and hit the gates. Breaux stated that he had the reins until the horse burst through the gates, but that there was nothing he could do after the reins had “come off” his hands. Breaux described the procedure for preventing a horse from breaking through the gates. He explained that if watched closely, it can be determined when the horse is going to go up. Breaux stated that the assistant starter must jerk the horse’s head into his lap, which throws the horse off balance, preventing the horse from taking any action. Breaux added that the necessary warning creating the opportunity to apply this procedure did not occur in this case.

Conflicting testimony was given by Hardy. Hardy stated that once loaded into the gates, the horse leaned into the gates. Hardy testified that at that point, she asked the assistant starter to head her horse and make the horse stand properly, but received no response to her request. She added that Breaux was turned to his left with his back to her and had both hands occupied with the horse in the adjacent gate. Hardy said that she requested Breaux’s assistance again, and that again Breaux did not answer her. It was at that [367]*367time that the horse suddenly reared up very high on her hind legs striking the front of the gates resulting in the gates opening. Hardy added that up to that point, she had not received any assistance or help from the assistant. According to Hardy, Breaux never touched her horse after she was in the gates. Richard Huval, head starter for Delta Downs, supervises the assistant starters. He watches the assistants in the starting gate immediately prior to the beginning of each race to determine when the horses are ready to start. He stated that he saw Breaux help Hardy. However, his testimony indicated that when he sees a horse act up he marks his program. Immediately before the accident, he marked his program that another horse had been acting up in the parade. He did not make any notation with regard to Hardy’s horse until after the race was over.

As previously stated, a court of appeal may not set aside a finding of liability unless there is no sufficient basis for that finding, or the finding is clearly wrong. As stated in Rosell v. ESCO, 549 So.2d 840 (La.1989), on remand, 558 So.2d 1360 (La.App. 4th Cir.1990), writ denied, 561 So.2d 105 (La.1990), where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed.

After careful review of the record in its entirety, we conclude that although Hardy and Breaux presented two different views of the evidence, the jury’s choice between them was not clearly wrong, and the record reflects sufficient facts to support its conclusion based on the jury’s reasonable evaluation of credibility. The jury could reasonably believe that Breaux’s inaction breached a duty to Hardy and that it was the cause-in-fact of the accident.

Furthermore, the evidence of record is sufficient to support a determination by the jury that Hardy’s injuries were not wholly or partially the result of her own negligence.

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609 So. 2d 291 (Louisiana Court of Appeal, 1992)

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Bluebook (online)
599 So. 2d 364, 1992 La. App. LEXIS 1166, 1992 WL 76761, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hardy-v-delta-downs-inc-lactapp-1992.