Barnes v. Birmingham Intern. Raceway, Inc.

CourtSupreme Court of Alabama
Writing for the CourtHOUSTON; HORNSBY; MADDOX; ADAMS
Citation551 So.2d 929
PartiesMichael W. BARNES v. BIRMINGHAM INTERNATIONAL RACEWAY, INC., et al. 88-386.
Decision Date16 June 1989

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.

Page 930

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,

Page 931

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...

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