The Counsellor's Corner



In a column I wrote approximately one month ago, I discussed the doctrine of what is known as "assumption of the risk" in that there are certain activities in which people engage where they ought to have a pretty good idea that there is some risk inherent in the situation and if the person subsequently gets injured, it doesn't mean they should rush to court with a lawsuit.  The previous story dealt with a young little leaguer who was hit by a pitch thrown by a pitcher and who subsequently sued the Little League.

The latest case dealing with assumption of the risk found the Court of Appeals of the State of California trying to decide whether or not a rider of a racehorse whose mount runs into another racehorse during training can sue for negligence.

In this case, Eric Shelly, the young rider, was warming up a horse named Aftermath when they collided with another horse named Coach Scarlet.  Mr. Shelly went down and ended up with a broken leg, wrist, and shoulder.  It was alleged that Coach Scarlet was standing at a location on the track other than where she belonged. 

The Court of Appeals in siding with the defense noted that "racehorses are by their nature difficult to control.  It is not unusual for a horse to come to a sudden stop, rear up, or side step and thereby cause a collision with another horse and rider following close behind."  Sure enough, in his deposition Mr. Shelly acknowledged he knew that a risk attendant to the riding of a racehorse is that one might find oneself deposited on the ground.  Shelly's attorney is not taking this too well as he has indicated a desire to appeal this case to the Supreme Court of the State of California.

Again, returning to the words of the Appellate Court, one does assume the risk of injury when he "agrees to engage in activity which requires him to maneuver a spirited racehorse around a track at near top speed in close proximity to others engaged in the same dangerous activity."

I would say that hits the proverbial nail on the head.  What we have here is another example of someone refusing to take responsibility for his actions.  If you are a jockey in a horse race, or if you are a rider warming up a horse, the possibility exists that you're going to fall off on your own or that you're going to collide with another horse and subsequently fall.  That's horse racing.  To sue the owners, trainers, and everyone having anything to do with the "rogue horse," Coach Scarlet, is ridiculous.  This would be almost like a boxer stepping into the ring, getting hit by a punch thrown by  the other boxer, and then suing when he gets injured by a left hook.

If you can't stand the heat, get out of the kitchen.  Again, we have a situation where there is a lawsuit that never should have been filed.  When people complain about a crowded and clogged court system and the length of time it takes matters to get resolved, it is cases like these that are doing the clogging.  I'm going to continue to write about these types of cases at every opportunity with the goal that perhaps some day, cases that belong in the system will be there, and cases such as this will not.

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Charlie Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Booth & Unger.  Mr. Unger has obtained his doctorate in psychology and writes a bi-monthly column on legal and psychological issues.