By Anne C. Vitale
A boxer severely injured in a match could sue the hotel that hosted the fight for failing to have an ambulance on standby, the Missouri Court of Appeals' Eastern District has ruled, upholding a $13.7 million verdict.
The hotel argued that the "inherently dangerous activity" doctrine precluded liability because the fight promoter's failure was "collateral negligence" — that is, "unusual and abnormal" given the contemplated risks of the activity.
But the court disagreed.
"Because injury is clearly a potential risk of the sport, and the sport is of a violent nature itself, this would provide sufficient warning to a landowner of the potential risk of harm or special reason to take certain medical precautions to prevent further injury from a delay in treatment," wrote Judge William H. Crandall Jr. for the court.
The judgement was affirmed in Maldonado v. Gateway Hotel Holdings, LLC, MLW No. 38913, issued on Oct. 7.
Boxing Match
In December 1998 Doug Hartmann Productions, LLC and the Regal Riverfront Hotel agreed to schedule a boxing event at the hotel, which was owned by Gateway Hotel Holdings, LLC. The contract outlined the area to be used for the event and discussed the catering and beverage responsibilities of the hotel.
Pursuant to the contract Gateway received a non-refundable deposit and payment for room rentals and food and beverage. The contract also contained a provision stating that a $5 million indemnity insurance policy was to be provided, and Hartmann Productions was to provide a doctor at ringside for the boxing match and an ambulance on standby at the hotel the night of the event, Jan. 29, 1999.
Fernando Maldonado was a professional boxer who participated in the match, which ended when he was knocked out. He was revived, left the ring and walked to his dressing room. Maldonado later lost consciousness in the dressing room. There was no ambulance on site to take him to the hospital. An ambulance was called and he was taken to a hospital, but he suffered severe brain damage as a result of his injury.
Maldonado filed a petition for damages against several defendants, including Gateway. He claimed that Gateway and Hartmann Productions owed him a duty to provide an ambulance on the premises during the boxing match and to monitor his condition after the fight. He alleged that the failure to have an ambulance at the venue delayed his treatment and caused his brain damage.
Prior to trial, Maldonado dismissed all defendants except Gateway and Richfield Hotel Management, Inc., a joint owner of the hotel. The case was tried and the jury returned a verdict in favor of Maldonado of $13.7 million in compensatory damages. Although the issue of punitive damages had not been submitted, the jury also added an award of punitive damages of $27.4 million to the verdict form. The trial court struck the punitive damages and entered judgment in the amount of the compensatory damages only.
Gateway filed a motion for judgment notwithstanding the verdict, and an alternative motion for new trial and motion for remittitur. The motions were denied and Gateway appealed.
Inherently Dangerous
Judge Crandall said, "Gateway claims that Maldonado did not prove that Hartmann Productions was an independent contractor hired by Gateway to perform an inherently dangerous activity."
He said the term "inherently dangerous activity" means "an activity that necessarily presents a substantial risk of harm unless adequate precautions are taken.
"It is a theory of premises liability under which a landowner that hires an independent contractor to perform an inherently dangerous activity has a 'nondelegable duty to take special precautions to prevent injury from the activity.' Liability is imposed upon the landowner without any requirement that the landowner be proven negligent in any respect."
Quoting the Restatement (Second) of Torts, Crandall said there is liability only when "the harm results from the negligence of the contractor in failing to take precautions against the danger involved in the work itself, which the employer should contemplate at the time of the contract."
However, "if the negligence of the independent contractor is 'collateral,' the general rule exempting a landowner from liability for injuries to third parties caused by the negligence of an independent contractor applies," Crandall said.
Gateway first argued that Maldonado failed to prove that Hartmann was an independent contractor.
Crandall said, "Missouri courts have yet to define the term independent contractor under the inherently dangerous activity doctrine." Rejecting Gateway's argument that it did not "control" Hartmann, he said, "we note that the test of control in the independent contractor relationship has been 'overemphasized in judicial reasoning.' The control justification is often insufficient, and the motive behind vicarious liability is based upon the principle that 'an enterprise (and its beneficiaries) should pay for the losses caused by the risks that it creates (even without its fault).'"
After reviewing the specifics of the relationship, Crandall concluded that Hartmann was an independent contractor.
Gateway also claimed that Maldonado "failed to prove that Gateway was liable under the inherently dangerous activity doctrine because Maldonado assumed any risks inherent in boxing, and he was not entitled to recover for risks not inherent in the activity. Gateway correctly notes that a person who participates in sports 'assumes the risks' inherent in that sport. Where parties voluntarily enter a relationship, as they did here, where the plaintiff will assume certain well-known risks, the defendant has no duty to protect the plaintiff from those risks."
However, he said, "assumed risks in sporting events do not include those created by a defendant's negligence. Maldonado acknowledges that he may have assumed the 'primary risk' of being injured by a punch during the boxing match; however, he claims that he did not assume the risk of being injured because of the failure to provide medical monitoring or an ambulance on site. Gateway claims that Maldonado failed to make a submissible case because this risk of injury is not one inherent in boxing, but rather is a risk created solely by alleged negligence for which Gateway should not be liable. We disagree.
"Under the inherently dangerous activity exception to landowner liability, a landowner hiring an independent contractor to perform an inherently dangerous activity has a nondelegable duty to take special precautions to prevent injury from the activity. However, the landowner will not be considered liable if the negligence of the independent contractor is 'collateral.'"
Crandall said the Restatement (Second) of Torts has defined "collateral negligence" as "negligence, which is unusual or abnormal, or foreign to the normal or contemplated risks of doing the work." Pursuant to the Restatement, he said, "it is not necessary for a landowner to contemplate these unusual or abnormal types of negligence by the contractor, or negligence which may occur in the ordinary operative details of the work being carried out which may be expected to be assumed with proper care. However, it is necessary for the landowner to contemplate this negligence when the circumstances under which the work is done give him warning of some special reason to take precautions, or some special risk of harm to others inherent in the work.
"Here, we find that the failure of Hartmann Productions to have medical monitoring and an ambulance present at the hotel for the boxing match was not collateral negligence. Rather, this was negligence of the contractor in failing to take precautions against the danger involved in the work itself, which the employer should contemplate at the time of the contract. Boxing is an activity that is by its very nature, violent and potential injury is an obvious risk.
"Because injury is clearly a potential risk of the sport, and the sport is of a violent nature itself, this would provide sufficient warning to a landowner of the potential risk of harm or special reason to take certain medical precautions to prevent further injury from a delay in treatment. The negligent failure to have medical monitoring or an ambulance on stand-by is not the type of negligence which would be foreign to the contemplated risk of being injured or knocked unconscious during a boxing match.
"Moreover, having medical monitoring and an ambulance on stand-by was provided for or contemplated by the contract between Hartmann Productions and the hotel. A specific provision in the contract between the hotel and Hartmann Productions required the promoter to provide a physician at ringside and to have an ambulance on stand-by at the hotel the night of the boxing match."
Contract
Furthermore, Crandall said, "although adequate medical monitoring was not specifically set out in the contract, the contract language regarding the ambulance and a doctor at ringside demonstrates medical monitoring was contemplated. Hartmann Productions' failure to provide an ambulance on standby or provide medical monitoring was within the risk contemplated and therefore was not collateral negligence.
"Finally, there was extensive evidence adduced by Gateway that it had, in fact, taken 'adequate precautions' as that term is used in defining an inherently dangerous activity. The issue of adequate precautions, however, was well within the contemplated risk. The risks inherent in boxing are inextricably connected with the question of adequate precautions. The danger arises from 'the very nature of the activity.'
"Thus the negligence issue submitted to the jury was not collateral negligence but rather direct negligence relating to the activity. The trial court did not err in denying Gateway's motions for directed verdict or JNOV."
Crandall also rejected Gateway's argument that the trial court erred in not including a bracketed portion of the MAI instruction defining "inherently dangerous activity." Judge Clifford H. Ahrens dissented on this point.
The St. Louis attorneys for the parties — Jeffrey J. Lowe for the plaintiff and Thomas B. Weaver for the defendant — declined to comment for this story.
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September 29, 2003
