Defendant's motion for summary judgment dismissing claim which alleged that defendant's negligent governmental function regulation of harness track race caused claimant/harness driver to be injured is granted where New York State Gaming Commission owed no negligence-based common law duty or special relationship duty to claimants to enforce gaming regulations for safety of harness driver as he participated in the business of harness racing.
|Claimant(s):||STEPHANE BOUCHARD and EVE BERGERON|
|Claimant short name:||BOUCHARD|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||MARTIN HARDING & MAZZOTTI, LLP
By: Peter Baloukas, Esq.
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
By: Michael C. Rizzo, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 2, 2021|
|See also (multicaptioned case)|
Defendant moves for summary judgment dismissing the claim pursuant to CPLR 3212 asserting claimants' recovery is barred by the doctrine of primary assumption of risk, the defendant is immune from liability for the discretionary determinations of the New York State Gaming Commission and because defendant did not have notice of any dangerous condition which allegedly caused the claimants' injuries and damages.
Claimants oppose the defendant's summary judgment motion.
The claim alleges that:
"[T]he incident occurred on or about June 22, 2017, at approximately 1:45 pm. The incident occurred on the harness race track located at the Saratoga Casino Hotel, located at 342 Jefferson Street, Saratoga Springs New York, County of Saratoga, State of New York. At said time and place, the Claimant Stephane Bouchard, was the driver of race horse Sporty Big Boy, in the fourth race of the day. Driving race horse Mister Miami in front of Claimant Stephane Bouchard was driver Daniel Daley. At said time and place, Daniel Daley's horse, Mister Miami, fell in front of Claimant Stephane Bouchard's horse, Sporty Big Boy, causing a collision and Claimant Stephane Bouchard to be thrown from his race horse to the track. Said violent collision resulted severe life altering injuries to Claimant Stephane Bouchard."
The claim alleges that defendant was negligent in:
"a. Failing to inspect, review and evaluate the race horses prior to racing;
b. Failing to observe, notice or find injuries, deficiencies or limitations with race horses and/or their equipment prior to racing;
c. Failing to remove or prevent injured, lame or deficient horses from racing prior to the race commencing;
d. Failing to stop the race or remove a race horse from the race after it became apparent that the horse was lame, injured or unable to continue or finish the race in a safe manner;
e. Failing to have any system of checks, balances or safeguards in place that would prevent lame, injured or deficient horses from entering races;
f. Failing to supply proper staff to observe, review, investigate or research the health, history and/or medical background of a horse to determine if it was capable or appropriate to race;
g. Failing to prevent drivers with prior citations, suspensions and/or a history of racing injured, lame or deficient horses from entering races;
h. Failing to have any system of checks, balances or safeguards in place that might prevent driver/jockey injuries;
i. In failing to properly and adequately train its employees, agents, servants, and/or officers;
j. In failing to properly and adequately supervise its employees, agents, servants, and/or officers;
k. In failing to follow proper and appropriate race, driver and/or horse protocols and procedures that might ensure the safety of both drivers and horses."
The claimants' attorney, in paragraphs 6 and 7 of his affirmation in opposition to the defendant's summary judgment motion, emphasizes that the defendant's purported "duty of care" to claimants' arises solely from the allegedly negligent exercise of defendant's governmental regulatory powers:
"6. Here, concerning the State's duty of care, the claimants have alleged that the State was negligent and violated New York Code, Rules and Regulations under NYCRR Title 9, Executive Subtitle T of the New York State Gaming Commission: § 4102.1. Violators; § 4102.2. Attempted violations; § 4102.3. Penalties; § 4103.5. Misinformation; § 4104.3. Equipment; § 4104.4. Blacksmiths; § 4104.7. Equipment check; § 4105.3. Track stewards and inspectors; § 4105.8. Duties of judges; § 4105.9. Duties of paddock judge; § 4105.11. Duties of patrol judges; § 4105.12. Duties of the recording judge; § 4105.13. Duties of the racing secretary; § 4105.14. State veterinarian; § 4106.2. Misrepresentation; § 4106.3. Examination of horse or records; § 4116.8. Duties of drivers; § 4117.4. Racing violations; § 4117.9. Inspection of equipment; § 4119.8. Undesirable persons; § 4120.4. Trainer's responsibility.
7. The record in this case demonstrates that the State was negligent in failing to comply with its pre-race safety obligations imposed by the New York Code, Rules and Regulations, and through the State's complete disregard of its mandatory pre-race safety obligations, it created a unique and dangerous condition over-and-above the usual dangers that are inherent in the sport."
The Court has carefully reviewed the record on the defendant's motion, in particular the allegations of the claim, bill of particulars and supplemental bill of particulars, together with the allegations set forth in the affirmation of claimants' attorney.
The defendant's motion for summary judgment dismissing the claim is granted. The threshold issue, and determinative factor in this claim, is whether defendant owed claimants a duty of care. For reasons hereafter discussed, the answer to that inquiry is that no duty of care was owed claimants by defendant. Accordingly, the Court lacks subject matter jurisdiction because the claim fails to comply with Court of Claims Act 11 (b) in that it fails to adequately particularize the nature of the claim by alleging facts sufficient to state a negligence cause of action (see defendant's Answer, Ninth Paragraph, Fifth Affirmative Defense).
The claim, even when read in conjunction with the claimant's bill of particulars and supplemental bill of particulars, fails to allege facts showing that defendant owed a negligence-based common law duty or a special relationship duty to claimants to enforce the State's governmental function gaming regulations for the purpose of providing for the safety of claimant harness driver Stephane Bouchard as he participated in the business of harness racing.
As DeHart v State of New York (92 Misc 2d 631, 634 [Ct Cl 1977]), explains:
"Although the precise wording of section 11 does not appear to require that a claim state a valid cause of action, the cases are clear that without such a statement a claim is legally deficient and subject to fatal attack, Patterson v State of New York, 54 AD2d 147; Davis v State of New York, 28 AD2d 609; Weinstein v New York State Thruway Auth., 27 Misc 2d 503."
Artale v State of New York (140 AD2d 919, 919 [3d Dept 1988]), further demonstrates the requirement that a claim "must state a cause of action" in order to satisfy Court of Claims Act 11 (b), as does Jackson v State of New York (85 AD2d 818, 819 [3d Dept 1981], lv dismissed, lv denied 56 NY2d 568 ):
"We also reject claimant's contention that his notice of intention to file a claim should be treated as a claim. A fair reading of the statement clearly establishes that it fails to state a cause of action. It does not allege how the State was negligent in causing claimant's injuries. Such allegations are essential."
Specifically, "[t]o establish a prima facie case of negligence, the [claimant] is required to demonstrate that the defendant owed a duty to him or her, that the defendant breached that duty and that such breach was a proximate cause of the injuries sustained" (Evarts v Pyro Engineering, Inc., 117 AD3d 1148, 1150 [3d Dept 2014]).
In Di Ponzio v Riordan (89 NY2d 578, 583 ), the court reminded that "[t]he existence and scope of an alleged tortfeasor's duty is, in the first instance, a legal question for determination by the court."
Valdez v City of New York (18 NY3d 69, 75 ), explains that where a "case involves . . . a classic governmental, rather than proprietary, function . . . [it is a] fundamental obligation of a [claimant] pursuing a negligence cause of action to prove that the putative defendant owed a duty of care."
There is no question that the defendant was exercising a governmental function in regulating the harness race in which claimant Stephane Bouchard was injured.
It is equally clear that the sole focus of the claimants' allegations against the State of New York is that the defendant, acting through the New York State Gaming Commission, acted negligently in its governmental function of regulating the harness race in which claimant Stephane Bouchard was injured.
There is no allegation that the defendant State of New York owned or operated the "harness race track located at the Saratoga Casino Hotel" so as to hold defendant liable, in a proprietary capacity, for creating or maintaining a dangerous condition on the premises.
The claimants' many allegations of negligence all arise solely from the exercise of the defendant's governmental function of regulating the harness racing industry for the legislatively stated specific economic purpose of promoting and insuring "public confidence and trust in the credibility and integrity of legalized gaming activities" (Racing, Pari-Mutuel Wagering and Breeding Law § 100).
Lauer v City of New York (95 NY2d 95, 100 ), states the controlling principle succinctly: "To sustain liability against a municipality, the duty breached must be more than that owed the public generally."
In McLean v The City of New York (12 NY3d 194, 199 ), the Court of Appeals recited the law as to the state's duty of care with respect to the allegedly negligent performance of a governmental function:
"[A]n agency of government is not liable for the negligent performance of a governmental function unless there existed 'a special duty to the injured person, in contrast to a general duty owed to the public' (quoting Garrett v Holiday Inns, 58 NY2d 253, 261 )."
The regulations relied upon by claimants to support a negligence-based duty of care to claimant Stephane Bouchard are promulgated pursuant to Racing, Pari-Mutuel Wagering and Breeding Law § 100, which clearly states the public, economy-driven, purpose of the statute and regulations:
The legislature finds and determines that the gaming industries constitute a vital sector of New York state's overall economy. The legislature also finds and determines that responsive, effective, innovative, state gaming regulation is necessary to operate in a global, evolving and increasingly competitive market place. The legislature additionally finds and determines that this legislation is necessary to modernize and transform the present state gaming agencies into a new integrated state gaming commission.
The continued growth of the gaming industry will contribute to economic development and job creation in this state. Therefore, it is essential to maintain the public confidence and trust in the credibility and integrity of legalized gaming activities. To ensure such public confidence and trust, this article provides that the regulation of such gaming is to be conducted in the most efficient, transparent and effective manner possible. By consolidating various regulatory functions into a single oversight body with broad powers, this article ensures strict state regulation of all corporations, associations and persons engaged in gaming activity. Further, by consolidating regulatory functions into a single oversight body, this article will increase efficiency, reduce costs and eliminate any unnecessary redundancies in regulation. The improved regulatory structure established by this article will ensure, so far as practicable, the exclusion of unsuitable persons or entities from participating in any legalized gaming activity within this state. The goal of this article is that all gaming activity conducted in this state will be of the highest integrity, credibility and quality and that the best interests of the public, both gaming and non-gaming, will be served. Additionally, during the term of appointment or employment, every member, officer and employee of the commission shall be held to the highest ethical standards and avoid any conflict of interest or appearance thereof. Finally, it is determined by the legislature that the public interest is best served by those persons or entities engaged in gaming activity paying the cost of regulating such activity through reasonable regulatory fees." (emphasis added).
The stated purpose of the statutory scheme is to ensure fair and honest harness racing in order to promote "gaming activity" by the public rather than to ensure, and assume tort liability for, safe racing conditions for individual harness drivers.
Defendant's governmental function regulation of harness track racing and wagering created no negligence-based common law duty to claimants to enforce the regulations for claimants' safety.
Next, the claimants have not, and cannot, persuasively argued that a governmental function negligence cause of action is supported by a special duty arising from the regulations.
McLean (12 NY3d at 203), and subsequent case law, demand that, in a governmental function negligence cause of action, the claimant must plead facts tending to show that the decedent was owed a special duty by defendant (see Applewhite v Accuhealth, Inc., 21 NY3d 420 ; Metz v State of New York, 20 NY3d 175 ; Valdez v City of New York, 18 NY3d 69 ).
Applewhite (21 NY3d at 426), explains the claimants' burden:
"If it is determined that a municipality was exercising a governmental function, the next inquiry focuses on the extent to which the municipality owed a 'special duty' to the injured party. The core principle is that to '"sustain liability against a municipality, the duty breached must be more than that owed the public generally"' (Valdez, 18 NY3d at 75, quoting Lauer v City of New York, 95 NY2d 95, 100 ). We have recognized that a special duty can arise in three situations: (1) the plaintiff belonged to a class for whose benefit a statute was enacted; (2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally; or (3) the municipality took positive control of a known and dangerous safety condition (see e.g. Metz, 20 NY3d at 180). It is the plaintiff's obligation to prove that the government defendant owed a special duty of care to the injured party because duty is an essential element of the negligence claim itself (see Lauer, 95 NY2d at 100; see also Valdez, 18 NY3d at 75). In situations where the plaintiff fails to meet this burden, the analysis ends and liability may not be imputed to the municipality that acted in a governmental capacity."
Claimants have not alleged any facts tending to show that defendant owed claimants a special duty under any of the "three situations" set forth above in Applewhite. Nor have claimants raised an issue of fact in opposition to the defendant's summary judgment motion as to the applicability of any of the "three situations" described in Applewhite to the present claim.
Although neither alleged in the claim nor supported by argument or facts submitted in opposition to the defendant's summary judgment motion, it would appear that the only viable source of a special duty running from defendant to claimants would be an assertion that the claimant Stephane Bouchard belonged to a class for whose particular benefit the Racing, Pari-Mutuel Wagering and Breeding Law was enacted.
Such an argument was recently considered in T.T. v State of New York (151 AD3d 1345 [3d Dept 2017]), a claim which involved:
"[A] developmentally disabled woman with moderate to severe autism, [who] resided in a facility owned and operated by Camary Statewide Services, a private, nonprofit corporation that was, at that time, certified by the Office of Mental Retardation and Developmental Disabilities (hereinafter OMRDD) to provide care and treatment to persons with developmental disabilities. During this four-year period, claimant, the resident's mother and legal guardian, regularly observed abrasions, bruises, bite marks and other injuries to the resident's body, including her rectum, and brought such injuries to the attention of the staff at Camary, as well as OMRDD and the State Commission on Quality Care for the Mentally Disabled . . . claimant commenced this negligence action against defendant for its alleged failure to adequately regulate and oversee the care and treatment provided by Camary to the resident, conduct a sufficient investigation into claimant's reports of the suspected abuse of the resident and take appropriate corrective measures."
The T.T. court (151 AD3d at 1346) reiterated the familiar rule that where the State is engaged in a governmental function it:
"may be subject to suit only if it owed a special duty to the resident and if the governmental function immunity defense does not apply."
The T.T. court further recognized, at 1346, that, similar to the allegations in the present claim, "[a]t their core, claimant's negligence claims focus on the manner in which defendant oversaw the care and treatment that Camary provided to the resident and the adequacy of its enforcement of regulatory provisions" and that the only way the T.T. claimant could establish a special duty was by showing that the State had violated "a statutory duty enacted for the benefit of a particular class of persons" (T.T., 151 AD3d at 1347, quoting Palaez v Seide, 2 NY3d 186 at 199-200 ).
The T.T. court, 1347-1348, explained that:
"To that end, '[t]o form a special relationship through breach of a statutory duty, the governing statute must authorize a private right of action' (Pelaez v Seide, 2 N.Y.3d at 200, 778 N.Y.S.2d 111, 810 N.E.2d 393; accord McLean v City of New York, 12 N.Y.3d at 200, 878 N.Y.S.2d 238, 905 N.E.2d 1167). Where a private right of action is not expressly created by the statute, one 'may be fairly implied when (1) the [injured party] is one of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose of the governing statute; and (3) to do so would be consistent with the legislative scheme' (Pelaez v. Seide, 2 N.Y.3d at 200, 778 N.Y.S.2d 111, 810 N.E.2d 393; see Sheehy v. Big Flats Community Day, 73 N.Y.2d 629, 633-634, 543 N.Y.S.2d 18, 541 N.E.2d 18 )."
Here, the governing statute does not authorize a private cause of action and claimants have neither alleged nor argued that a private cause of action is "fairly implied" (Palaez, 2 NY3d at 200).
There has been no showing that the Racing, Pari-Mutuel Wagering and Breeding Law, and its accompanying regulations, were enacted for the particular benefit of ensuring the safety of harness drivers as opposed to the law's stated intention to economically benefit the public through regulated gaming activities to ensure fair and honest gaming.
Further, the Court's review of the Racing, Pari-Mutuel Wagering and Breeding Law's statutory scheme and regulations shows that a private right of action against the State of New York for violation of the State's own harness racing regulations is "incompatible with the legislative design" (Metz, 20 NY3d at 180).
The Metz case concerned a claim made against the State of New York after multiple people were killed when a tour boat capsized and sank in Lake George, a tragedy allegedly caused by the State's failure to perform yearly safety inspections of the boat involved, as required by the Navigation Law. The Metz court held that the State's obligation to perform safety inspections of the boat, as a public vessel, did not create a special duty of care owed by the State to particular passengers.
Metz explained, 20 NY3d at 180-181, that:
"[R]ecognizing a private right of action would be incompatible with the legislative design. The Navigation Law does not provide for governmental tort liability, but instead for fines and criminal penalties to be imposed upon vessel owners and operators (see e.g. Navigation Law § 62 [negligence on the part of vessel owners/employees that results in the death of a passenger is a class E felony]; Navigation Law §§ 58, 73-b [an owner or operator who overloads the vessel beyond the designated passenger capacity will be guilty of a misdemeanor]). In addition, when the legislature amended the Navigation Law in response to this tragedy, it imposed additional safety standards and enhanced certain penalties, but still did not provide for a private right of action (see L 2007, ch 320). Under these circumstances, we can infer that the legislature has determined that these penalties are the best way to enforce violations of the Navigation Law and that the failure to establish a private right of action against the State was deliberate"
The Court finds that here, as in Metz, the Racing, Pari-Mutuel Wagering and Breeding Law does not provide for governmental tort liability, but instead for fines, penalties, suspensions and expulsions to be imposed by the New York State Gaming Commission upon violators of the regulations (see e.g., 9 NYCRR §§ 4101.1, 4102.1, 4102.2, 4102.3, 4116.9, 4117.4).
In sum, the State of New York owed no common law negligence duty or special relationship duty to claimants to enforce the regulations promulgated pursuant to the Racing, Pari-Mutuel Wagering and Breeding Law in order to provide for the safety of claimant Stephane Bouchard while he was engaged in the business of harness racing.
In view of the claimants' failure to state a negligence cause of action, the Court need not consider other grounds offered by defendant in support of its summary judgment motion because those grounds only arise as defenses to a prima facie negligence cause of action.
As set forth in Valdez (18 NY3d at 80):
"[I]f plaintiffs cannot overcome the threshold burden of demonstrating that defendant owed the requisite duty of care, there will be no occasion to address whether defendant can avoid liability by relying on the governmental function immunity defense."
With respect to claimants' allegations that defendant failed to adequately train and supervise its employees, it is clear that those allegations rest solely upon the claimants' failed underlying negligent governmental regulation cause of action. Since there is no actionable underlying negligence cause of action, the negligent training and supervision allegations fail as well (see Cotter v Summit Sec. Servs., Inc., 14 AD3d 475 [2d Dept 2005], U.S. Underwriters Ins. Co. v. Val-Blue Corp., 85 NY2d 821, 823 ).
Defendant's motion for summary judgment dismissing the claim is granted. The claim is dismissed.
March 2, 2021
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Defendant's Notice of Motion, filed October 22, 2020;
2. Affirmation of Michael C. Rizzo, dated September 29, 2020, and attached exhibits;
3. Affidavit of Ritchie Gregory, sworn to September 22, 2020;
4. Affirmation in Opposition of Peter Balouskas, dated December 21, 2020, and attached exhibits;
5. Affidavit of Stephane Bouchard, sworn to December 16, 2020;
6. Affidavit of Fran Raia, sworn to February 3, 2020;
7. Affidavit of Glenn Bailey, sworn to February 25, 2020;
8. Affidavit of Bob Davis, sworn to February 19, 2020;
9. Affidavit of Debra Miller, sworn to February 3, 2020;
10. Affidavit of Glenn Raia, sworn to February 3, 2020;
11. Affidavit of J. Tim Potter PhD., sworn to December 18, 2020;
12. Reply affirmation of Michael C. Rizzo, dated February 8, 2021;
13. Reply affidavit of Ritchie Gregory, sworn to February 3, 2021.