Barker v. Colorado Region-Sports Car Club of America, Inc.

• Decision Date: 03 December 1974
• Docket Number: No. 73--265,REGION-SPORTS,73--265
• Citation: 35 Colo.App. 73,532 P.2d 372
• Parties: Opal C. BARKER, Individually, and as Conservatrix of the Estate of Jack Barker, also known as Jack Lee Barker, Mental Incompetent, Plaintiff-Appellee, v. COLORADOCAR CLUB OF AMERICA, INC., a Colorado corporation, et al., Defendants-Appellants. . II
• Court: Colorado Court of Appeals

Page 372

532 P.2d 372

35 Colo.App. 73

Opal C. BARKER, Individually, and as Conservatrix of the Estate of Jack Barker, also known as Jack Lee Barker, Mental Incompetent, Plaintiff-Appellee, v. COLORADO REGION-SPORTS CAR CLUB OF AMERICA, INC., a Colorado corporation, et al., Defendants-Appellants.

No. 73--265.

Colorado Court of Appeals, Div. II.

Dec. 3, 1974.

Rehearing Denied Dec. 24, 1974.

Certiorari Denied March 17, 1975.

Carrigan & Bragg, P.C., James R. Carrigan and Douglas E. Bragg, Denver, Friedman Bader & Dufty, Robert A. Dufty, Denver, for plaintiffs-appellees.

Yegge, Hall & Evans, Don R. Evans, Denver, for defendants-appellants.

KELLY, Judge.

The defendants, Colorado Region-Sports Car Club of America, Inc., Alex S. Keller, Churchill Blackwell and Joyce S. Steinhardt, as successor special administratrix of the estate of James E. Mulhall, Jr., appeal from adverse judgments in a negligence action brought by Opal C. Barker, individually, for loss of consortium and by Opal Barker, as conservatrix of the estate of her husband, Jack Barker. We affirm.

This lawsuit arose out of a bizarre accident during an auto race at Continental Divide Raceways (CDR) on June 8, 1969. The event was sponsored by Colorado Region-Sports Car Club of America, Inc. (Club). Alex S. Keller, chief steward of the meet, was solely responsible for its overall conduct and Churchill Blackwell was the racing steward. It was Blackwell's duty to assure that orders given by Keller were carried out. As a result of the accident, James E. Mulhall, Jr., the driver of the ill-fated race car, was killed. Jack Barker, a spectator in the permanent pit area of the track, received severe head injuries.

After trial of the liability issues, the jury, by special verdict found that Mulhall and Blackwell were guilty of simple negligence, that Keller's negligence was willful and wanton, that the negligence of each was a proximate cause of the injuries to Barker, and that Barker did not assume the risk of his injuries. The damages issues were then tried to the same jury, which awarded $602,000 to Mrs. Barker as conservatrix and $150,000 to her individually.

The defendants appeal from the judgments entered on these verdicts, their contentions centering almost entirely on the refusal of the trial court to take the case from the jury and determine the liability issues in their favor as matters of law. The defendants urge that an exculpatory agreement signed by Barker is an absolute bar to Mrs. Barker's recovery, whether she sues as conservatrix or for loss of consortium. They contend this is true whether defendants' negligence be simple or wanton. They assert that the evidence was wholly inadequate to support the jury's findings of negligence and proximate cause, but that it was abundant for the purpose of establishing Barker's assumption of risk. Finally, they postulate that the damages awarded were miscalculated and were unsubstantiated by the evidence.

The basis facts are not in dispute. The permanent pit at CDR, an area reserved for pit crew members and a limited number of spectators, was situated about twenty feet behind the racing pits. The permanent pit was separated from the racing pits by wooden posts supporting an eight-inch steel 'Armco' guard rail. The racing pits were located on an exceptionally wide, straightaway portion of the track. Drivers leaving the track during a race reached the racing pits by way of the pit lane. The racing pits and pit lane were marked off from the race track by a long line of fifty-five gallon steel oil-drums (referred to in the testimony as barrels), which were connected by a steel cable laced through hooks welded to the barrels. The purpose of this barrel barrier was twofold: (1) to mark the racing pits and pit lane and (2) to provide protection to drivers' pit crew members and others in the racing pits and permanent pit.

Spectators were permitted in the permanent pit area at CDR only after signing an exculpatory agreement releasing the sponsors of the event, its officials and participants from liability for injury, whether caused by negligence or otherwise. Only signatories were given a pit pass. Jack Barker was a spectator in the permanent pit on Sunday, June 8, having signed the exculpatory agreement and received a pit pass authorizing his admission to that area. He wore the construction worker's hard hat without which he was seldom seen. Barker, himself an occasional race car driver, frequently attended CDR races, which he nearly always watched from the permanent pit area where his brother worked as an auto mechanic.

Late Sunday afternoon, June 8, 1969, James Mulhall was driving in the main event for Formula A cars, high horsepowered, single-engine, open-wheeled race cars with fiberglass and aluminum bodies. It had been raining hard for about a half an hour and the asphalt track was treacherous. One of Mulhall's pit crew members signalled Mulhall to slow down. Mulhall acknowledged this signal by raising his right hand from the steering wheel. His car immediately went out of control, did a 180-degree spin toward the barrel barrier, struck the barrier, slid backwards along the barrel line and then through the steel cable into the pit lane, ultimately coming to rest in a dirt patch at the northernmost end of the straightaway. Several barrels in the barrier line were projected into the permanent pit. One barrel struck Jack Barker's head, leaving its indelible imprint on his hard hat.

Subsequent investigation of the accident revealed that not all the barrels in the barrier line had been filled with water, as was customary at CDR and as Keller had previously ordered them to be. Keller, a man with fifteen years' experience in racing, testified the sport was 'perhaps the most dangerous in the world'; he knew that there was special hazard for people in the racing pits and in the permanent pit; and that filling all the barrels with water would provide them with some additional protection.

On Saturday morning, the day before the accident, Keller noticed that the barrels had not been filled with water. He talked to Churchill Blackwell about this and directed Blackwell to see that all the barrels were completely filled with water. Blackwell protested that the task would be difficult because of the scheduling of the races that day and the non-availability of anything but a garden hose with which to transport water. Blackwell observed that he was not going to stand out there all night filling barrels, a comment he repeated on Sunday morning when Keller inquired about the progress of the job. Blackwell, in responding to Keller's inquiry, reported that not all the barrels had been filled and again pointed out the obstacles. Keller replied that the work could be resumed during the lunch hour. Although Keller did not recall it, two witnesses testified that Keller told Blackwell not to worry about it, there had never been an accident at CDR before and Keller didn't think there would be one that day.

Neither Blackwell nor Keller checked all the barrels to see that they were filled. Of the fifty to sixty barrels in the line, Keller checked three or four, found them filled and assumed that his subordinates had done what he had directed them to do. Blackwell checked the northernmost barrel in the line and found that it had water in it. The other barrels at the north end of the pit lane were empty.

I. The Exculpatory Agreement

Defendants argue that the exculpatory agreement signed by Barker is an absolute bar to recovery both by his estate and by his wife, individually. If this contention has merit, the remaining issues in the case are academic. Mrs. Barker counters defendants' contention with the argument that the exculpatory agreement is totally void as against public policy. The trial court ruled that the agreement did not bar recovery by Mrs. Barker individually for loss of consortium and that it precluded recovery by Barker's estate for simple negligence only. We agree.

The effect of an exculpatory agreement has not been addressed in Colorado in precisely this context. In those cases in which the question has been considered, Colorado adheres to the general rule that exemption agreements are against public policy where a public service is involved. See e.g., Denver Union Terminal Ry. Co. v. Cullinan, 72 Colo. 248, 210 P. 602; The Denver Consolidated Electric Co. v. Lawrence, 31 Colo. 301, 73 P. 39.

The rule is not without qualifications. Common carriers, for example, may contract for exemption from liability for negligence with respect to duties they are under no obligation to the public to perform. See Union Pacific R.R. Co. v. Stupeck, 50 Colo. 151, 114 P. 646; The Denver & Rio Grande R.R. Co. v. Whan, 39 Colo. 230, 89 P. 39. There has also been qualified departure from the general rule that limitations of liability in contracts of bailment for hire are against public policy. See Jefferson County Bank v. Armored Motors Service, 148 Colo. 343, 366 P.2d 134.

In none of these cases was there blanket disapproval of all exculpatory agreements as violative of public policy. ¹ The decisive factors in each case have been the language of the agreement, the nature of the service performed and the duty owed to the public. See Otis Elevator Co. v. Maryland Casualty Co., 95 Colo. 99, 33 P.2d 974.

We conclude that Colorado follows the general rule that, in the absence of a duty to the public, exculpatory agreements are valid when fairly made and may be enforced to preclude recovery for injury caused by simple negligence. Such agreements, however, must be strictly construed against the party seeking their exemption, and in no event may a person be relieved of liability for willful and wanton negligence. See 6A A. Corbin, Contracts § 1472; W. Prosser, Torts § 68 (4th ed.); 15 S. Williston, Contracts § 1823 (W. Jaeger 3rd ed.); and See Otis Elevator Co. v. Maryland Casualty Co., Supra, in which the court in dictum...