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Holzer v. Dakota Speedway5/17/2000
he document signed by Holzer was a separate document. As will be more fully developed, this concern is connected with claims of knowledge and voluntariness.
[ ] Since the time of the ancients, records exist of racing on foot and by animal. The 20th Century has enlarged the scope of racing competition to that of motor vehicles. The dangerousness of racing numerous automobiles at the fastest possible speeds is obvious. In such an instance, there is no such thing as an inherently safe auto race. The closer one is to the action the greater the risk of injury or death. Holzer's duties placed him at the edge of the track, close to the racing action.
[ ] We have recognized that releases such as the form Holzer signed are typical of those used in the racing industry. See Lee v. Beauchene, 337 NW2d 827, 828 (SD 1983) (citing Andrea G. Nadel, Annotation, Liability For Injury Or Death of Participant in Automobile Or Horse Race at Public Track, 13 ALR4th 623 (1982) [hereinafter Nadel]); see also Randy J. Sutton, Annotation, Validity, Construction, and Effect of Agreement Exempting Operator of Amusement Facility From Liability For Personal Injury Or Death of Patron, 54 ALR5th 513 (1997) [hereinafter Sutton]. In Lee, the plaintiff stock car driver sustained injuries when his car struck a hole in the track and flipped, leaving him paralyzed from the waist down. Upon entering the racetrack before the accident, Lee was required to sign a release agreement. In affirming the circuit court's grant of summary judgment to the defendant speedway, we stated absent "a legislative directive, these releases have withstood attacks that they are contrary to public policy." Lee, 337 NW2d at 828 (citing Tope v. Waterford Hills Road Racing Corp., 81 MichApp 591, 265 NW2d 761 (1978)). In South Dakota no such legislative directive exits.
[ ] However, releases that are construed to cover willful negligence or intentional torts are not valid and are against public policy. Id. (citing Winterstein v. Wilcom, 16 MdApp 130, 293 A2d 821 (1972); SDCL 53-9-3). "Willful and wanton misconduct is something more than ordinary negligence but less than deliberate or intentional conduct." Id. at 829 (citing Granflaten v. Rohde, 66 SD 335, 283 NW 153 (1938)). Holzer alleged in his complaint that Speedway acted "negligently and with reckless disregard toward his life, safety, and health" by failing "to provide adequate protection from the racetrack for the individuals in the pits, they failed to warn individuals in the pits of the potential dangers, and they located the pits in an unsafe, unprotected and unsecured area."
[ ] "Conduct is gross, willful, wanton, or reckless when a person acts or fails to act, with a conscious realization that injury is a probable, as distinguished from a possible (ordinary negligence), result of such conduct." Id. (citing VerBouwens v. Hamm Wood Products, 334 NW2d 874, 876 (SD 1983) (emphasis in original)). The Restatement (Second) of Torts ยง 500 (1965) defines the recklessness standard as:
The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable [person] to realize not only that his conduct creates an unreasonable risk of physical harm to another, but also such risk is substantially greater than that which is necessary to make his conduct negligent. Kellar v. Lloyd, 509 NW2d 87, 95 (WisApp 1993).
Thus, for Holzer to prevail under a theory of "recklessness," and to place Speedway's conduct outside the coverage of the release, a question of fact must exist that Speedway acted with a "c
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