PORTLAND — The owners of Scarborough Downs have been found negligent and ordered to pay $400,000 in damages as a result of a 2006 harness racing accident that severely injured a sulky driver.

After a 3 1/2-day trial, a Cumberland County Superior Court jury took one hour to come back with the verdict June 29 in the civil lawsuit filed against the track and Davric Maine Corp.

On March 25, 2006, Russell Wing Jr., 66, of Bowdoin, suffered two compression fractures of his middle back when the sulky he was driving caught on the track’s hub rail. The horse’s harness was ripped off, snapping both shafts off the sulky and throwing Wing onto the track, according to his attorney, Craig Rancourt.

Although the jury determined total damages caused to Wing by the Downs’ negligence were $435,000, they also found negligence by Wing and deducted $35,000 from the total award. Rancourt on Wednesday said the jury most likely decided Wing, who had been driving for most of his life, was negligent because he failed to wear a flak jacket.

Rancourt contended the hub rail, a low railing that lined the inside perimeter of the track, was in disrepair. He said a dent in the left side of the sulky indicated it had been hard hit by what he theorized was a protruding rail bolt.

Rancourt said the Maine Harness Horsemen’s Association had been asking the Downs for 15 years to remove the railing as a safety precaution – a change, he said, the 11 other tracks in Maine had already made and one that most harness race tracks in the country have enacted.

But he said the Downs had refused to remove the rail because doing so would cost $600,000, including relocation of integral lighting.

Wing’s accident was not the only one involving the hub rail at Scarborough Downs that summer.

According to an Aug. 13, 2006, report in the Portland Press Herald, a 6-year-old trotter, Highway Hanover, died when he ran into the rail after becoming disoriented by a fall. The report said the accident brought focus once again to horsemen’s previous wishes for removal of the rail.

Racing commission Executive Director Henry Jackson told the newspaper that even before the accident with the horse, there were efforts to convince the Downs to eliminate the rail.

“We’ve tried to work with Scarborough looking at the issue of getting it (the removal of the rail) done,” Jackson said at the time. “We have encouraged them to do that. But we have not forced them to do it. There is nothing in our rules that allows us to do that.”

In the same article, MHHA Vice President Denise McNitt said her group understood the financial burden of removing the hub rail, and suggested racing during the daytime would give the track more than six months to do the project.

But, in comments he would only provide in writing after receiving written questions, Downs attorney Ed MacColl this week contended the MHHA had agreed in the summer of 2006 that “the hub rail was needed given the configuration of the track, at least until a new lighting system was installed or the track decided to abandon night racing.”

When asked in writing this week for more information about the hub rail accident that killed a horse “around the same time” as the accident that injured Wing, MacColl wrote, “I am confident that your information that the hub rail caused an earlier accident is mistaken.”

However, MacColl acknowledged the previous accident in the 2006 Press Herald story, which reported “MacColl said they have recently brought in consultants, independent of last week’s accident, and are studying what can be done.”

Downs officials did decide to remove the hub rail in September 2006 and also removed the lighting system, which eliminated night racing at the track.

But it was too late to prevent the accident that Rancourt said left Wing in constant pain and without the ability to continue racing.

“I was confident Scarborough Downs was negligent,” Rancourt said Wednesday. “This did not have to happen. Even if (the Downs) didn’t remove them, if they’d been properly maintained he wouldn’t have been permanently and totally prevented from racing again.”

During the trial, Rancourt presented evidence that showed the Downs has received significant income from Bangor slot machine revenues through the Maine Harness racing Commission that were earmarked for capital improvements.

“In 2006, (the Downs) submitted a request for $91,000 in capital improvements – some of those were for a new oven, shelving and televisions,” he said. “You’ve got to ask yourself – a hub rail  in complete disrepair, but they bought a lot of TVs. That was the clear implication; I think that resonated with the jury.”

When asked, in writing, about the capital improvement subsidies, MacColl replied in writing, “All capital expenditures were approved by the Maine Harness Racing Commission, at public hearings, both before the projects were undertaken and then again after completion and before reimbursement from the industries’ (including the Downs’) pooled resources.”

According to Rancourt, MacColl still has a motion pending to dismiss the case, arguing the Downs has limited liability because the case involves recreational or harvesting activities. In his written response to questions, MacColl did not comment on the motion.

But Rancourt said although the law limits liability in cases of an injury sustained while recreating on private or public lands, he believes it does not apply to commercial ventures.

Asked if Davric Maine would appeal the verdict, MacColl said “any decision on whether to appeal will be made after the Superior Court rules on all pending matters and, of course, after close consultation with (Downs owner and Davric Maine President Sharon) Terry.”

Peggy Roberts can be reached at 781-3661 ext. 125 or proberts@theforecaster.net.

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