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American Pharoah, ridden by Victor Espinoza, left, wins the 140th Preakness Stakes horse race at Pimlico Race Course, Saturday, May 16, 2015, in Baltimore. (AP Photo/Matt Slocum)

And They’re Off…A Little Too Soon

The 147th running of the Belmont Stakes is this weekend with American Pharaoh looking to claim the Triple Crown after an impressive performance at the Preakness.   Much of the news surrounding the Preakness wasn’t just American Pharaoh’s wire-to-wire performance, but Pimlico Race Course’s handling of the race.

Pimlico has a history of liability issues surrounding the Preakness infield from the “Running of the Urinals”, brawls, and general drunken behavior.  In response, the Preakness went so far as to prohibit outside beverages, alcoholic or otherwise, from the infield and turning the infield party into a music festival with headliners, including Bruno Mars and Lorde, as well as the occasional bikini contest and the Kegasus marketing campaign.

This year’s running of the race might top them all in that it put the horses, jockeys, starting-gate crew, and ticket holders in harm’s way.  About twenty minutes before post-time a line of powerful thunderstorms moved into the Baltimore area and, according to the Baltimore Sun, the Mayor’s Office of Emergency Management told infield spectators to seek shelter and for those seated in the grandstands to move inside.  But moving tens of thousands of people from the exposed infield to shelter doesn’t happen at the snap of a finger.  Post-race weather reports in the Baltimore area showed numerous cloud-to-ground lighting strikes near the track at race time.  Despite this, track officials ran the race on time, before the infield could be completely cleared.

By running the Preakness on time the Maryland Jockey Club, operators of the racetrack, and the Stronach Group, which owns the racecourse, opened themselves to potential liability on multiple fronts.

Infield Ticketholders

A first year law student could tell you that an event holder owes a duty to ensure the safety of all ticketholders under premises liability theory.  Under Maryland law, premises liability law divides visitors to one’s property into three categories, (1) trespassers, (2) licensees, and (3) invitees.  A landowner owes a trespasser a limited duty that the property is free from any attempts to injure or cause willful injury.  A licensee is an informal guest or an individual visiting the property for his or her own benefit to which the proprietor must take the prudent steps of reasonable person to ensure the safety of licensees.  Lastly, invitees are publicly invited onto the property and are owed the same duty as licensees but are also owed a greater duty of care from the landowner from any dangerous conditions on the property.

Infield ticketholders fall into the invitee category as they are publicly invited to financially benefit the Maryland Jockey Club and Pimlico Racecourse through the purchase of tickets and other items inside the venue (most notably alcohol) and gambling profits.  Had disaster struck in the form of injuries caused directly or indirectly from the severe weather both the MD Jockey Club and Pimlico would have been liable to the injured.  Since weather plays such an important role to the event, the venue admits to have been monitoring the weather.  In the event of severe weather, the venue owner and operator should have had a complex plan in place to protect the tens of thousands of fans spread out across a massive open field.  The Preakness succeeds financially due in large part to gathering a huge crowd on the infield and encouraging them to drink to a point of inebriation where rational decision-making becomes a rarity.  Expecting such people to proceed to safety or handle a quick and orderly evacuation without proper guidance is asinine, and those responsible for running the Preakness are lucky no major injuries have been reported.

Horses

Despite the thousands of people to whom Pimlico owed a duty, the eight horses running in the Preakness were, without a doubt, the most valuable commodities needing protection from severe weather.  The racetrack owed a duty to the ownership of those eight horses as soon as their entry fees were paid.  People with infinite more knowledge of horseracing than I have said that running on a waterlogged track didn’t present any adverse risk to the horses.  However, racing on open track in the middle of a severe thunderstorm in and of itself has risk as does loading horses into a metal starting gate during the same storm.  Had an injury occurred as a result of the weather, it’s safe to assume each of those eight horses had insurance coverage.  But that doesn’t insulate the track.  Those insurance policies likely don’t cover the value of the horse plus all potential stud fees, which is where the true value in owning a high-performing thoroughbred lies.  Had a horse suffered injury, its owners would likely go after the track for whatever lost value wasn’t covered under the insurance policy, and it is also highly probable that the insurance policy would grant the insurance company rights of subrogation to sue the track in the name of the ownership group in order to recoup the payout resulting from the track’s negligence.

Starting-Gate Staff

Pimlico also had an obligation to ensure the safety of its employees – namely the starting-gate crew.  Simply, the starting-gate crew is responsible for loading the horses into the gate pre-race.  After a horse is loaded into the gate, the individual loading that horse sits/stands on the metal bar separating each gate.  Despite a plastic covering there is no way any of the starting-gate staff could avoid contact with metal.  In the off chance a fully metal starting gate standing alone in the middle of an empty racetrack is struck by lightning during a severe thunderstorm – such as the one Baltimore was under at the start of the Preakness – the starting-gate crew is exposed to potential serious injury.  In the event of such injuries, the track must not only deal with potential liability issues but also have to answer to OSHA and the Maryland Department of Labor.

Taking the time to ensure the safety of its patrons, employees, and staff could prevent Pimlico from facing potential liability in the millions and future governmental oversight and regulation.  Maybe the next time the Preakness faces a major spring thunderstorm, which is not all that uncommon in Baltimore, the Maryland Jockey Club and Pimlico will better survey to whom their obligations belong rather than kowtow to NBC’s primetime TV schedule – unless the network is willing to contractually indemnify them for any liability resulting from running the race on-time.

About Avi Sommer

Avi is an attorney for Under Armour primarily working with endorsements and brand management. He spent 2014 working for the Boston Red Sox in a Player Development & Professional Scouting role and, prior to that, he was a commercial litigation associate in a Baltimore law firm. He has wide-ranging professional experience in the sports world. Aside from the Red Sox, he has previously worked for the San Antonio Spurs, the National Football League, and the Baltimore Orioles. His writings have been published in the Sports Lawyers Journal and The Sports Lawyer. Avi graduated Cum Laude from Tulane University Law School with a certificate in Sports Law in 2012, after graduating with Honors from the University of Rochester in 2008 with a B.A. in History and Political Science.

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