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Dean v. MacDonald12/10/2001
Rockingham
The plaintiffs, Charles and Jean Dean, appeal from an order of the Superior Court (Abramson, J.) granting summary judgment to the defendants, John MacDonald d/b/a Lee USA Speedway and National Association for Stock Car Auto Racing, Inc., upon Mr. Dean's negligence claim. We affirm and remand.
The relevant undisputed facts follow. Mr. Dean became involved in automobile racing in 1968. In August 1998, while attending a race at the Lee USA Speedway (the Speedway), he sought entrance to the pit area to work on a race car. Before entering the pit area, he was required to sign a "Release and Waiver of Liability and Indemnity Agreement" (Release) that purported to release the defendants from liability for negligence claims.
On the approximately six other occasions on which Mr. Dean entered the pit area at the Speedway, he was required to sign a similar form. He has also signed a similar form each time he entered the pit area of any race track in the five years preceding the accident.
The top portion of the Release form stated that it was a "RELEASE OF LIABILITY." It instructed the reader to "CAREFULLY READ" the document, and stated that signing the Release was required to enter any "RESTRICTED AREA," defined to include "the racing surface, pit areas, infield." The top portion of the Release also stated that before entering a restricted area, the signer agrees and represents that he or she has inspected the area and found it to be safe and that if, at any time, he or she feels unsafe, he or she will advise officials and leave the restricted area.
The body of the Release provided in relevant part that the signer
1. HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE THE PROMOTERS, PARTICIPANTS, RACING ASSOCIATION, SANCTIONING ORGANIZATION OR ANY SUBDIVISION THEREOF, TRACK OPERATOR, TRACK OWNER, OFFICIALS, VEHICLE OWNERS, DRIVERS, PIT CREWS, ANY PERSONS IN ANY RESTRICTED AREA, . . . OWNERS AND LESSEES OF PREMISES USED TO CONDUCT THE EVENT . . . AND EACH OF THEM, THEIR DIRECTORS, OFFICERS, AGENTS AND EMPLOYERS, ALL FOR THE PURPOSES HEREIN REFERRED TO AS THE "RELEASEES," FROM ALL LIABILITY to the undersigned . . . for any and all loss or damage, and any claim or demands therefore on account of injury to the person . . . of the undersigned, whether caused by the negligence of the
"Releasees" or otherwise while the undersigned is in or upon the restricted area, and/or competing, officiating in, observing, working for, or for any purposes participating in the event. 2. HEREBY AGREES TO INDEMNIFY AND SAVE AND HOLD HARMLESS THE "RELEASEES" . . .
from any loss, liability, damage, or cost they may incur due to the presence of the undersigned in or upon the restricted area or in any way competing, officiating, observing, or working for, or for any purpose participating at any time in the event and whether caused by the negligence of the "Releasees" or otherwise. 3. HEREBY ASSUMES FULL RESPONSIBILITY FOR AND RISK OF BODILY INJURY . . . DUE TO THE NEGLIGENCE OF "RELEASEES" OR OTHERWISE while in or upon the restricted areas . . . .
The bottom portion of the Release stated that the signer "acknowledges and agrees that the activities of the event are very dangerous and involve the risk of serious injury and/or death" and that the signer has read and signed the Release voluntarily. The signature lines also stated, "THIS IS A RELEASE OF LIABILITY" and "I HAVE READ THIS RELEASE."
Mr. Dean signed the Release before entering the infield pit area. At some point, he left the infield pit area to measure tires. Before crossing the track to return to the infield, he waited for a race official
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