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Holzer v. Dakota Speedway5/17/2000
way from liability as a matter of law. Based upon the same document and rationale it also released K & K Insurance Group as Speedway's underwriter/insurer. (Compare Huber, 501 NW2d at 58, where K & K was not specifically released as the underwriter/insurer for the track's owner and operator). Affirmed.
[ ] AMUNDSON and KONENKAMP, Justices, concur.
[ ] SABERS, Justice, concurs in result.
[ ] MILLER, Chief Justice, concurs in part and dissents in part.
SABERS, Justice (concurring in result).
[ ] I would agree with Chief Justice Miller's writing if this were the first such RELEASE AND WAIVER OF LIABILITY, ASSUMPTON OF RISK AND INDEMNITY AGREEMENT form that Vernon signed. Unfortunately for him, the fact is that this was the third RELEASE AND WAIVER OF LIABILITY form that Vernon signed.
MILLER, Chief Justice (concurring in part and dissenting in part)
[ ] I generally agree that requiring car race participants to sign a release of liability is not violative of public policy. However, it was improper to grant summary judgment on the issue of Holzer's knowledge or voluntariness, because genuine issues of material fact were presented to the court.
[ ] Initially, it must be noted that summary judgment is usually not suitable in actions involving state of mind. Wilson v. Great N. Ry. Co., 83 SD 207, 212, 157 NW2d 19, 22 (1968). See also, Ahl v. Arnio, 388 NW2d 532, 534 (SD 1986). " urmise that a party will not prevail upon trial is not sufficient basis to grant [summary judgment] on issues which are not shown to be sham, frivolous or so unsubstantial that it is obvious it would be futile to try them." Wilson, 83 SD at 212, 157 NW2d at 21; see also, Ahl, 388 NW2d at 533. On appeal, we are not to decide the issue of fact, only whether one exists. Wilson, 83 SD at 211, 157 NW2d at 21.
[ ] The record contains several items that raise a legitimate factual issue whether Holzer knowingly or willingly signed the waiver. First, the waiver form itself, which is attached to this writing, is confusing and misleading. At the bottom half of the roster-like form there are 18 lines containing the same number of signatures. Each signer is asked to print his name, sign his name over a provision that states, "I have read this release,"and list his duties. Holzer's printed name, signature, and "#2" appear on the second line of the waiver, followed by sixteen other signatures.
[ ] Next, the record contains the affidavit of Jay Sanner, who has attended many automobile races, including races at Lake County Speedway, and has entered and worked in the pit area for various race car drivers. Based on his familiarity with the process utilized to gain entrance to the pit area of Lake County Speedway, he testified that, "upon entrance to the gate, a waiver form is handed to the individual entering the pit, they are told to print and sign in, and then pay their entry fee." In addition, "there are several people waiting to gain entrance to the pit area at the same time. The only thing on [Sanner's] mind at the time of entering the gate is racing and therefore no attempt is made to read the aforementioned waiver form. To the best of [Sanner's] knowledge, this is the only way into the pit area before entering a race."
[ ] The waiver form and Sanner's affidavit, together with common knowledge, could well lead a factfinder to conclude that Holzer unknowingly or involuntarily signed the waiver form as part of the pressure-filled routine of gaining access to the pit area. These pieces of evidence show that Holzer was among a steady stream of people waiting to enter the pit area that night.
[ ]
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