ASHCROFT v. CALDER RACE COURSE, INC.

SHAW, Justice.

We have for review Ashcroft v. Calder Race Course, Inc., 464 So.2d 1250 (Fla. 3d DCA 1985), because of conflict with the decisions of this Court in Kuehner v. Green, 436 So.2d 78 (Fla. 1983), and Blackburn v. Dorta, 348 So.2d 287 (Fla. 1977). We have jurisdiction under article V, section 3(b)(3), Florida Constitution, and quash the decision under review.

Petitioner Ashcroft, a jockey racing at Calder Race Course, was injured when his horse veered across the race course and toward an exit gap. He lost control, fell to the ground, and was run over by another horse, rendering him a quadriplegic. He sued respondent Calder Race Course, Inc. for damages, alleging that Calder's negligent placement of the exit gap caused the accident and his resultant injury. The trial court, over Ashcroft's objection, instructed the jury on assumption of risk. The jury rendered a verdict finding Calder negligent and Ashcroft not negligent, but finding that Ashcroft had assumed the risk of the danger of which he complained. Damages of $10,000,000 were assessed. The trial court denied Calder's motion for judgment on the verdict in its favor and found Calder liable, but upon motion deemed the verdict excessive and granted Calder's motion for remittitur or, in the alternative, a new trial. The award reduced to $5,000,000 was declined by Ashcroft, and the cause was therefore subject to a new trial. On appeal, the district court found abundant evidence supporting the jury's finding that Ashcroft assumed the risk and reversed the trial court's order in failing to enter judgment for Calder.

This Court rejected the doctrine of contributory negligence as a complete bar to a plaintiff's recovery from a defendant whose negligence contributed to his injury in Hoffman v. Jones, 280 So.2d 431 (Fla. 1973). We rejected the doctrine of implied assumption of risk as a complete bar to a plaintiff's otherwise meritorious claim for recovery in Blackburn. Blackburn expressly had no effect, however, on the doctrine of express assumption of risk, including "express contracts not to sue for injury or loss which may thereafter be occasioned by the covenantee's negligence as well as situations in which actual consent exists such as where one voluntarily participates in a contact sport." 348 So.2d at 290.

We had occasion to affirm the viability of the doctrine of express assumption of risk in the contact sport setting in Kuehner. We pointed out, however, that

436 So.2d at 80 (emphasis in original, citation omitted). Assuming that express assumption of risk applies to horse racing, it is clear from the above quotation that express assumption of risk waives only risks inherent in the sport itself. Riding on a track with a negligently placed exit gap is not an inherent risk in the sport of horse racing. We therefore find as a matter of law that there was no express assumption of risk with respect to the negligent placement of the exit gap and it was error for the judge to instruct the jury on assumption of risk.

The owner or occupier of land has a duty to exercise reasonable care for the protection of invitees. Prosser and Keaton, Law of Torts § 61 (5th ed. 1984):

Id. (footnotes omitted). Accord Restatement (Second) of Torts § 343A (1965):

Id. (emphasis supplied).

A landowner who assumes the task of providing the physical facility upon which a sport is to be played has a duty to exercise reasonable care to prevent foreseeable injury to the participants that includes foreseeing that they may risk a known danger in order to participate. If injury occurs due to negligent maintenance of the facility, the landowner may be held liable.

The trial court granted a motion of remittitur reducing the jury award by half to $5,000,000 and ordered a new trial on both liability and damages when petitioner declined the reduced award.1 After hearing argument on whether to grant the remittitur, the judge commented

Later, in the order of remittitur, the court found as follows:

Petitioner points out that the criteria for the exercise of the power to order a remittitur is as follows:

Laskey v. Smith, 239 So.2d 13, 14 (Fla. 1970). See also Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla. 1978). Based on this criteria, petitioner argues that there is nothing in the record, or any indication of anything outside the record, to suggest that the jury was influenced by passion, prejudice, or gross mistake and the trial court's order makes no findings regarding the impropriety of the jury verdict. Moreover, petitioner argues, respondent failed to seriously contest the damages issue before the jury, offering no rebuttal witnesses and only perfunctory cross examination of one of the five main witnesses put on by petitioner on the damages issue. Petitioner suggests that respondent is attempting to shift the responsibility for assessing damages from the jury to the courts.2

Respondent counters that the correct standard of review is set forth in Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla. 1980).

Id. at 146.

The thrust of respondent's argument is that a reasonable man could have taken the evidence concerning petitioner's future medical costs and lost net earnings, reduced to their present money value, and calculated their value when invested over petitioner's projected life span to arrive at a figure of $5,000,000 damages, which would include an indeterminate, but, in respondent's view, adequate sum for pain and suffering. Respondent would then have us apply the reasonable man test and determine that the trial judge did not abuse his broad discretion in awarding damages of $5,000,000. Respondent's argument might have merit if the trial judge had been the trier of fact. The difficulty with the argument is that it takes the jury, which was the trier of fact, entirely out of the equation and treats its verdict of $10,000,000 as a nullity.

The trial judge's broad discretion is exercised in the context of determining whether a jury's verdict is against the manifest weight of the evidence or was influenced by consideration of matters outside the record. We agree with petitioner that the trial judge abused his discretion in ordering remittitur and granting a new trial as an alternative. There is nothing in the remittitur order suggesting there was any impropriety in the jury's verdict. There are no reasons given to support the notion that the verdict was against the manifest weight of the evidence or that the jury was influenced by matters outside the record. Instead, the judge appears to have simply reached different conclusions than the jury on whether petitioner was negligent3 and on the amount of damages to be awarded. A trial court's discretion, while broad, is not unbridled.

Bould v. Touchette, 349 So.2d 1181, 1184-85 (Fla. 1977).

The decision below is quashed. The cause is remanded with instructions to reinstate the jury verdicts and enter judgment.

It is so ordered.

ADKINS, EHRLICH and BARKETT, JJ., concur.

OVERTON, J., dissents with an opinion, in which McDONALD, C.J., and BOYD, J., concur.

OVERTON, Justice, dissenting.

I dissent. It is unrefuted that the jury was erroneously instructed concerning assumption of the risk. The jury returned a clearly inconsistent special verdict, finding, on the one hand, that the plaintiff was not negligent, and, on the other hand, that the plaintiff had assumed the risk under instructions that this finding barred recovery. Under these circumstances, I would not allow the trial judge or appellate court to pick and choose what part of the verdict should be accepted and what part rejected. When a jury is erroneously instructed and comes to an inconsistent verdict, I find there is no choice but to require a new trial.

McDONALD, C.J., and BOYD, J., concur.