Barnes v. Birmingham Intern. Raceway, Inc.

• Decision Date: 16 June 1989
• Citation: 551 So.2d 929
• Parties: Michael W. BARNES v. BIRMINGHAM INTERNATIONAL RACEWAY, INC., et al. 88-386.
• Court: Alabama Supreme Court

Page 929

551 So.2d 929

Michael W. BARNES v. BIRMINGHAM INTERNATIONAL RACEWAY, INC., et al.

88-386.

Supreme Court of Alabama.

June 16, 1989.

Rehearing Denied Sept. 1, 1989.

E. Ray Large, Birmingham, for appellant.

Steven A. Benefield and Karon O. Bowdre of Rives & Peterson, Birmingham, for appellees.

HOUSTON, Justice.

Michael W. Barnes brought suit against Birmingham International Raceway, Inc. ("BIR"), the National Association for Stock Car Auto Racing, Inc. ("NASCAR"), Clayton Reuse, and Firestone Tire & Rubber Co. ("Firestone") to recover damages for injuries he sustained while participating in an automobile race. BIR, Reuse, NASCAR, and Firestone filed motions for summary judgment, relying on two exculpatory pre-race releases signed by Barnes. The trial court granted the motions, and Barnes appealed. We affirm in part; reverse in part; and remand.

Summary judgment is proper where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56, A.R.Civ.P. All reasonable doubts concerning the existence of a genuine issue of fact must be resolved against the moving party. Kizziah v. Golden Rule Insurance Co., 536 So.2d 943 (Ala.1988). This action was pending prior to June 11, 1987; therefore, Ala.Code 1975, § 12-21-12, as amended, does not apply and the applicable standard of review is the scintilla rule.

Barnes, an experienced race car driver, entered a stock car racing event at BIR's raceway. Prior to entering the pit area, Barnes went directly to the sign-in booth, paid the entry fee, and placed his signature on a sign-in sheet that was entitled "THIS IS A RELEASE OF LIABILITY." That release provided that Barnes, in consideration for being allowed to enter the premises and to participate in the race:

"[H]EREBY RELEASES, REMISES AND FOREVER DISCHARGES AND AGREES TO SAVE AND HOLD HARMLESS AND INDEMNIFY NASCAR AND SANCTIONING BODY AND THE PROMOTERS PRESENTING SAID EVENT, THE OWNERS, AND LESSEES OF THE PREMISES, THE PARTICIPANTS THEREIN, THE OWNERS,

SPONSORS AND MANUFACTURERS OF ALL RACING EQUIPMENT USED IN SAID EVENT AND THE OFFICERS, OFFICIALS, DIRECTORS, AGENTS, EMPLOYEES AND SERVANTS OF ALL OF THEM, OF AND 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...."

The release also provided:

"In signing this REQUEST AND RELEASE each of the undersigned represents that he:

"...

"(d) Has read this REQUEST AND RELEASE of Liability, understands it and signs it voluntarily and is of sound mind." (Emphasis added.)

The following appears directly above and below the signature box and at one other place on the form that Barnes signed:

"THIS IS A RELEASE OF LIABILITY I have seen and read the REQUEST and RELEASE heading this Page." (Emphasis added.)

The "GATEMAN'S STUB" that Barnes also signed contains the following:

"I hereby release speedway owner, operator, promotor and any other person or persons connected with the racemeet for which this Pit Permit has been issued from all liability for personal injury or property damage while preparing, practicing, qualifying or participating in or attending said racemeet...." (Emphasis added.)

Barnes testified that he never read either of the releases prior to signing them. During the race, he was involved in a multiple-automobile accident and sustained injuries and burns to his body due to the alleged lack of adequate fire equipment.

Barnes contends that BIR, NASCAR, and Reuse fraudulently induced him to execute the two exculpatory pre-race releases, misrepresenting in the release forms that the race would be conducted according to NASCAR rules. The well-settled law in Alabama is that, in order to prevail on the fraud claim, Barnes "must introduce proof of a false representation concerning a material existing fact which, when relied upon by [Barnes], proximately caused him damage." Carnival Cruise Lines, Inc. v. Goodin, 535 So.2d 98, 101 (Ala.1988); see also Smith v. J.H. Berry Realty Co., 528 So.2d 314, 316 (Ala.1988); Cherokee Farms, Inc. v. Fireman's Fund Insurance Co., 526 So.2d 871, 875 (Ala.1988). In Torres v. State Farm Fire & Casualty Co., 438 So.2d 757, 759 (Ala.1983), this Court stated:

"[T]he right of reliance comes with a concomitant duty on the part of the plaintiffs to exercise some measure of precaution to safeguard their interests. In order to recover for misrepresentation, the plaintiffs' reliance must, therefore, have been reasonable under the circumstances."

See also Wilson v. World Omni Leasing, Inc., 540 So.2d 713 (Ala.1989). The undisputed evidence shows that Barnes never read the releases. If Barnes never read the releases, he could not have relied to his detriment on any misrepresentations allegedly contained in them. By making a conscious decision not to read the general releases, Barnes failed to exercise any degree of precaution to safeguard his interests. See Syx v. Midfield Volkswagen, Inc., 518 So.2d 94 (Ala.1987). There can not be actionable fraud unless there is justifiable reliance. Cherokee Farms v. Fireman's Insurance Co., supra. We find no evidence to support Barnes's claim of reliance. Therefore, in the absence of proof of reliance, Barnes's fraud claim must fail as a matter of law. See Sanders v. Kirkland & Co., 510 So.2d 138 (Ala.1987).

In Alabama, general pre-race releases exculpating one from liability for negligent and wanton conduct have been upheld as valid and not void as against public policy. Young v. City of Gadsden, 482 So.2d 1158 (Ala.1985). Clearly, the cases cited in Young v. City of Gadsden, supra, and the cases subsequent to Young v. City of Gadsden, supra, that address the validity of pre-race releases exculpating from liability similarly hold that the releases are valid and not against public policy as to negligence. See Gore v. Tri-County Raceway, Inc., 407 F.Supp. 489 (M.D.Ala.1974); Rhea v. Horn-Keen Corp., 582 F.Supp. 687 (W.D.Va.1984); Grbac v. Reading Fair Co., 521 F.Supp. 1351 (W.D.Pa.1981), aff'd 688 F.2d 215 (3d Cir.1982); Huckaby v. Confederate Motor Speedway, Inc., 276 S.C. 629, 281 S.E.2d 223 (1981); Thomas v. Sports Car Club of America, Inc., 386 So.2d 272 (Fla.1980); Gross v. Sweet, 64 A.D.2d 774, 407 N.Y.S.2d 254 (1978), aff'd, 49 N.Y.2d 102, 424 N.Y.S.2d 365, 400 N.E.2d 306 (1979); Tope v. Waterford Hills Road Racing Corp., 81 Mich.App. 591, 265 N.W.2d 761 (1978); LaFrenz v. Lake County Fair Board, 172 Ind.App. 389, 360 N.E.2d 605 (1977); Trumbower v. Sports Car Club of America, Inc., 428 F.Supp. 1113 (W.D.Okla.1976); Winterstein v. Wilcom, 16 Md.App. 130, 293 A.2d 821 (1972); Seymour v. New Bremen Speedway, Inc., 31 Ohio App.2d 141, 287 N.E.2d 111 (1971); Theroux v. Kedenburg Racing Ass'n, 50 Misc.2d 97, 269 N.Y.S.2d 789 (1965), aff'd, 28 A.D.2d 960, 282 N.Y.S.2d 930 (1967), appeal denied, 20 N.Y.2d 648, 286 N.Y.S.2d 1026, 233 N.E.2d 300 (1967); Lee v. Allied Sports Associates, Inc., 349 Mass. 544, 209 N.E.2d 329 (1965); Corpus Christi Speedway v. Morton, 279 S.W.2d 903 (Tex.Civ.App.1955); see also Trainor v. Aztalan Cycle Club, Inc., 147 Wis.2d 107, 432 N.W.2d 626 (App.1988), review denied, 147 Wis.2d 889, 436 N.W.2d 30 (1988); Lohman v. Morris, 146 Ill.App.3d 457, 100 Ill.Dec. 263, 497 N.E.2d 143 (1986); Conradt v. Four Star Promotions, Inc., 45 Wash.App. 847, 728 P.2d 617 (1986). Participation in automobile races is a voluntary undertaking of a hazardous activity, and releases from liability, when voluntarily entered into, should be enforced. Young v. City of Gadsden, supra. The undisputed evidence revealed that Barnes voluntarily entered into the release agreements, knowing of the dangerous nature of road races. Therefore, the trial court properly granted summary judgment on the issue of the validity of exculpatory pre-race releases as to Barnes's claims of negligence.

Other than Young v. City of Gadsden, supra, we have found no cases in the United States that uphold pre-race releases for wanton and willful conduct. Those jurisdictions that have addressed this issue hold that general pre-race releases exculpating one from liability for wanton or willful conduct are invalid and contrary to public policy. See Conradt v. Four Star Promotions, Inc., supra (an exception to validating contracts waiving liability exists where the conduct was substantially or appreciably substandard and fell greatly below the standard established by...