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Holzer v. Dakota Speedway5/17/2000
f people going. At the very least, it creates a genuine issue of material fact.
[ ] The majority states that "there is no evidence in the record that Holzer was denied the opportunity to step out of any line that may have existed and read the release had he so desired." So what? Neither does it show that Speedway offered to let him step aside and read it. The majority opinion further concludes that " here is no evidence in the record that he was forced to sign it." Such a conclusion is out of touch with the realities of the situation. For reasons noted above, this is clearly not the same scenario as that presented in Haines, where the court opined that if the plaintiff was functionally illiterate, it was his duty to have someone read the release to him before signing it. 874 F2d at 575.
[ ] Under our summary judgment standard of review, we are bound to independently review the record for any genuine issue of material fact, in a light most favorable to Holzer, the non-moving party. Fritz v. Howard Township, 1997 SD 122, , 570 NW2d 240, 241. We are not to decide whether such facts have merit, as the majority has done. "The question presented by a motion for summary judgment is whether or not there is a genuine issue of material fact. 'It does not contemplate that the court shall decide such issue of fact, but shall determine only whether one exists.'" Piner v. Jensen, 519 NW2d 337, 340 (SD 1994) (quoting Wilson, 83 SD at 211, 157 NW2d at 21).
[ ] Guided by this standard of review, I find a genuine issue of material fact exists as to Holzer's knowledge or intent in signing the waiver. It should now be left to the factfinder to decide the merits of the claim. As Justice Sabers has appropriately observed: "The Constitution guarantees the right to a jury trial -- the trial court denied it. The Constitution guarantees that courts shall remain open -- the trial court closed it." Reeves v. Reiman, 523 NW2d 78, 87 (SD 1994) (Sabers, J., concurring in result in part and dissenting in part). That principle clearly applies here. I would reverse.
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