In a bit of coincidental timing, on the day before the running of the 136th Annual Preakness Stakes, where Shackleford held off a hard-charging Animal Kingdom and ended the possibility of a Triple Crown, the Appellate Division issued its opinion in Fertitta-Zepp v. Gateway Farms, Inc., No. A-6217-08 (App. Div. May 20, 2011). The plaintiff was a former racehorse groom who was injured when a racehorse, Kelly Mote N, kicked her in the face. The trial court granted summary judgment to the defendants and dismissed the plaintiff’s complaint. In affirming, the Appellate Division ruled that “the evidence is plainly insufficient to create a genuine issue of fact that [the defendants] had actual or constructive notice of Kelly Mote N’s dangerous propensities.”


The plaintiff was an experienced racehorse groom. On December 7, 2003, Kelly Mote N kicked the plaintiff in her face with his hind legs as she was taking the horse off a device referred to as an equiciser. For several years before the accident the plaintiff was a full-time employee of defendant Ross Croghan, a trainer and the only shareholder of defendant Equine Racing Enterprises (“Equine Racing”). Although the plaintiff stopped working for Croghan in 2000, she had an arrangement with another groom, Nancy Corley, whereby she would sometimes cover Corley’s Sunday shifts. When she was covering those shifts, the plaintiff would take care of the horses assigned to Corley. Her duties included cleaning the stalls and giving horses water. One of the horses assigned to Corley was Kelly Mote N.

Kelly Mote N was owned by defendant Stake Your Claim and was boarded at defendant Gaitway Farms, Inc. In the eight months before the subject incident, the plaintiff covered for Corley at least three Sundays every month. She never complained about Kelly Mote N or reported any difficulties with the horse. Croghan did not know about any behavior problems with the horse.

However, during discovery the plaintiff received a copy of Kelly Mote N’s equipment card, which is a ledger of all the devices that a horse needs for a specific race. The equipment card is maintained on file at racetracks. James Kopacz, an equipment manager and horse identifier at the Meadowlands racetrack, wrote “bad actor” on Kelly Mote N’s equipment card. He could not remember his specific experience with the horse or why he wrote “bad actor,” but he said that he would use that phrase when a horse had given him serious problems while inspecting it. He testified that the phrase was not an industry term but was his own term that he used to remind himself of horses that had given him problems. One of the shareholders/officers of Stake Your Claim testified that he never saw the equipment card. Croghan conceded that he probably had seen the equipment card but that he did not see the “bad actor” note. He also explained that equipment cards had a very limited purpose and that if a horse had a behavioral problem the prior trainer would share that information but that no such behavioral problems had been identified for Kelly Mote N.

The trial court granted summary judgment to Stake Your Claim and its individual shareholders because the plaintiff had failed to prove that they had actual or constructive notice of Kelly Mote N’s alleged dangerous propensities. The Appellate Division affirmed.

The Appellate Division explained that the owner of a domestic animal, like a horse, will not be held liable for an injury caused by the animal unless he or she had notice of the animal’s dangerous propensities. If the owner had such knowledge, he or she is strictly liable for any injuries the animal causes, regardless of whatever precautions he may have taken. However, if the animal is not dangerous or if the owner does not know about the animal’s dangerous propensities, then negligence as opposed to absolute liability applies.

The Appellate Division pointed out that the only evidence to support the plaintiff’s argument that the defendants had knowledge of Kelly Mote N’s alleged dangerous propensities was the “bad actor” note on the equipment card. However, the Appellate Division stressed that the “bad actor” note was a personal term used by Kopacz , the horse had not shown any dangerous propensities from the time it was purchased by the current owner until the incident occurred, and that the plaintiff had never had any problems with the horse. Therefore, the Appellate Division ruled that the trial court had properly granted summary judgment.