Lago v. Krollage

• Decision Date: 11 June 1991
• Citation: 575 N.E.2d 107,78 N.Y.2d 95,571 N.Y.S.2d 689
• Parties: , 575 N.E.2d 107 Dineen M. LAGO, as Administratrix of the Estate of Francis V. Cervoni, Appellant, v. Robert KROLLAGE et al., Respondents. Robert KROLLAGE et al., Third-Party Plaintiffs-Respondents, v. NATIONAL ASSOCIATION FOR STOCK CAR AUTO RACING, INC., et al., Third-Party Defendants-Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 689

571 N.Y.S.2d 689

78 N.Y.2d 95, 575 N.E.2d 107

Dineen M. LAGO, as Administratrix of the Estate of Francis

V. Cervoni, Appellant, v. Robert KROLLAGE et al., Respondents.

Robert KROLLAGE et al., Third-Party Plaintiffs-Respondents, v. NATIONAL ASSOCIATION FOR STOCK CAR AUTO RACING, INC., et

al., Third-Party Defendants-Respondents.

Court of Appeals of New York.

June 11, 1991.

Paul M. Duffy, Williston Park, for appellant.

E. Richard Rimmels, Jr., Garden City, for Suffolk Motordome, Inc., respondent and National Ass'n for Stock Car Auto Racing, Inc., third-party defendant-respondent.

OPINION OF THE COURT

ALEXANDER, Judge.

Plaintiff's decedent Francis V. Cervoni, died as a result of injuries sustained at a stock car racing event held on August 28, 1982, at Islip Speedway, a facility then being operated by Suffolk Motordome, Inc.

During a "figure-eight" race sanctioned by the National Association for Stock Car Auto Racing, Inc. (NASCAR), while working in the pit area on the infield of the track, attempting to fix a disabled vehicle, Cervoni was struck by a race car owned by Car Care Center, Inc., and driven by Robert Krollage who lost control of his vehicle. Cervoni subsequently died from his injuries.

Plaintiff commenced this negligence and wrongful death action against Krollage, Car Care Center, Inc., and Suffolk Motordome, Inc. These defendants cross-claimed each against the other and also asserted, inter alia, as affirmative defenses to plaintiff's complaint, releases signed by Cervoni in which he agreed to release and hold harmless the owners, promoters, lessors and others from any liability resulting from their negligence at any NASCAR sanctioned event.

The Appellate Division affirmed Supreme Court's order denying plaintiff's motion to dismiss the affirmative defenses asserted by the defendants and third-party defendants based upon these releases and granting cross motions to dismiss all claims against the defendants and third-party defendants, 157 A.D.2d 49, 554 N.Y.S.2d 633. Those courts rejected plaintiff's contention that the releases were void under the provisions of General Obligations Law § 5-326 and held that statute inapplicable because plaintiff's decedent was not a "user" of the premises within the contemplation of General Obligations Law § 5-326. The courts also concluded that under the terms of the releases, plaintiff's decedent assumed the risks inherent in his participation as a mechanic in the infield pit area of the raceway. We agree that the statute is not applicable and affirm the order of the Appellate Division solely for that reason.

I

In April 1982 decedent signed an application for NASCAR membership and license as a mechanic and paid a $55 license fee. As required by the NASCAR rules, he also applied for registration in the benefit plan of the competitor liaison bureau of NASCAR, agreed to abide by all NASCAR rules and decisions and designated his mother as his death beneficiary under the plan. The agreement signed by Cervoni provided that the limit of liability for any "accidental injuries (including death), which are the result of external and violent means * * * sustain[ed] in NASCAR sanctioned events," would be the scheduled benefit payable under the plan. ^* The agreement also provided that:

"[i]n consideration of the acceptance by NASCAR of my license application, issuance of license, my being permitted on speedway or raceway premises of any NASCAR sanctioned event, or any of the foregoing, I, for myself, my heirs, next of kin, personal representatives and assigns, forever release, remise, and forever discharge and agree to save and hold harmless and indemnify NASCAR, the promoters presenting races or other events under NASCAR sanction, the owners and lessees of premises on which NASCAR sanctioned events are presented, the participants thereon, and the owners and/or sponsors and manufacturers of all racing equipment used in NASCAR sanctioned events, the officers, directors, agents, employees and servants of all of them, including NASCAR officials and NASCAR members, of and from all liability, claims actions and possible causes of action whatsoever including negligence of any of the foregoing that may accrue to me or to my heirs, next of kin and personal representatives, from every and any loss damage and injury (including death) that may be sustained by my person and property while in, about and en route into and out of premises where NASCAR sanctioned events are presented."

On the day of the race, just prior to entering the Islip Speedway where he was to serve as a mechanic with the pit crew for a stock car entered in a NASCAR sanctioned race, Cervoni signed a document on which the words: "This is a Release of Liability" were printed in various places. This document was signed by a list of persons including Cervoni, who acknowledged that they had "inspected the track premises," that they "knew the risks and dangers inherent in entering the premises and participating in, observing the qualifying, and practicing for motor racing events [and] realize that conditions may become more hazardous while each of us are in the premises * * * [that] each enter[s] the premises voluntarily and assumes every risk for loss, damage or injury (including death)".

The document further provided that each person signing it: agreed to "release[ ], remise[ ] and * * * hold harmless * * * NASCAR * * * the promoters * * * the owners, [and] sponsors * * * from all liability claims, demands, causes of action and possible causes of action whatsoever, arising out of or related to any loss, damage or injury (including death) that may be sustained by our respective persons or property * * * while in, on, en route to, from, or out of said premises from any cause whatsoever including negligence of any of the foregoing."

II

In the absence of a contravening public policy, exculpatory provisions in a contract, purporting to insulate one of the parties from liability resulting from that party's own negligence, although disfavored by the law and closely scrutinized by the courts, generally are enforced, subject however to various qualifications (see, Gross v. Sweet, 49 N.Y.2d 102, 424 N.Y.S.2d 365, 400 N.E.2d 306; Van Dyke Prods. v. Eastman Kodak Co., 12 N.Y.2d 301, 239 N.Y.S.2d 337, 189 N.E.2d 693; Ciofalo v. Vic Tanney Gyms, 10 N.Y.2d 294, 220 N.Y.S.2d 962, 177 N.E.2d 925). Where the language of the exculpatory agreement expresses in unequivocal terms the intention of the parties to relieve a defendant of...