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Malgarini v. Washington Jockey Club

April 8, 1991

TIMOTHY MALGARINI, APPELLANT,
v.
WASHINGTON JOCKEY CLUB, ET AL, RESPONDENTS



Forrest, J. Pekelis and Baker, JJ., concur.

Author: Forrest

Timothy Malgarini appeals from summary judgments dismissing claims against the defendants Washington Jockey Club (WJC), Washington State Horse Racing Commission (WSHRC) and various individual defendants, asserting the court erred in applying theories of assumption of risk and quasi-judicial immunity. We affirm.

Malgarini was injured in a fall from a horse during a race at Longacres on April 19, 1985. Malgarini claims that the WSHRC and its stewards are liable for his injuries because they failed to enforce the rules of racing. Similarly, Malgarini claims the WJC, the operators of Longacres, failed to provide safe racing conditions.

Washington Jockey Club first moved for summary judgment, arguing the complaint failed to state a claim against it because it is not the party responsible for enforcing racing rules. This motion was denied January 6, 1987. Washington Jockey Club later moved for summary judgment, claiming Malgarini assumed the risk of injury. Malgarini did not oppose the motion and the court dismissed the claim against WJC on February 5, 1988.

Subsequently, WSHRC filed for summary judgment claiming Malgarini assumed the risk and that WSHRC enjoyed quasi-judicial immunity. Malgarini opposed this motion. The court, however, granted the motion and dismissed the claim against WSHRC October 5, 1989.

Malgarini v. WJC

Washington Jockey Club's motion for summary judgment based on Malgarini's assumption of the risk was granted when Malgarini failed to appear or submit any papers in opposition to the motion. After the court dismissed the claim Malgarini made no attempt to seek relief from the

judgment. Malgarini now challenges the theory that he assumed the risk. Washington Jockey Club urges that Malgarini may not argue on appeal what he did not argue at trial. RAP 2.5(a).*fn1 We agree. Malgarini's assertion that he did not receive proper notice is not supported by the record. In his opening brief Malgarini made no argument and cited no authority that the rule prohibiting a party from raising an issue for the first time on appeal should not apply to this case. No reply brief was filed. This portion of the appeal is totally without merit and the summary judgment dismissing the WJC is affirmed.*fn2

Malgarini v. WSHRC

Malgarini claims the WSHRC was not entitled to dismissal based on "quasi-judicial" immunity because it was not specifically pleaded as an affirmative defense and if properly pleaded, WSHRC is not entitled to the defense.

[1] The fact WSHRC did not use the words "quasi-judicial immunity" in its answer does not defeat its motion for summary judgment. Washington State Horse Racing Commission's answer did claim "discretionary immunity", good faith performance of duties, privilege, and lack of capacity to be sued. The trial memorandum developed the immunity argument and cited authority on this issue. While the words "quasi-judicial" are lacking, there is no doubt ...


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