Bowen v. Kil-Kare, Inc.

• Decision Date: 26 February 1992
• Docket Number: INC,KIL-KAR,No. 90-2187,90-2187
• Parties: BOWEN et al., Appellants, v.et al., Appellees.
• Court: Ohio Supreme Court

Page 84

63 Ohio St.3d 84

585 N.E.2d 384

BOWEN et al., Appellants, v. KIL-KARE, INC. et al., Appellees.

No. 90-2187.

Supreme Court of Ohio.

Submitted Nov. 12, 1991.

Decided Feb. 26, 1992.

SYLLABUS BY THE COURT

An action for loss of consortium occasioned by a spouse's injury is a separate and distinct cause of action that cannot be defeated by a contractual release of liability which has not been signed by the spouse who is entitled to maintain the action.

On May 31, 1987, appellant William T. Bowen ("Bowen") was a participant in an automobile race at Kil-Kare Speedway & Drag Strip ("Kil-Kare Speedway"), appellee, a racetrack owned and operated by appellee Kil-Kare, Inc. During the race, an automobile operated by Bowen was involved in a collision and, as a result, Bowen was seriously injured. Bowen's wife and two minor children, appellants, witnessed the collision.

On January 23, 1989, Bowen filed a complaint in the Court of Common Pleas of Greene County against appellees herein, Kil-Kare, Inc., Kil-Kare Speedway, and Richard Chrysler, the president of Kil-Kare, Inc. Bowen claimed that appellees negligently conducted the race and proximately caused his injuries. Bowen's wife and two minor children joined in the complaint and each set forth claims against appellees for negligent infliction of emotional distress and loss of consortium. ¹

The following relevant matters were elicited upon discovery and by way of sworn affidavit.

The automobile race conducted by appellees was known as an "Enduro 200." The object of the race was for drivers to endure two hundred laps around an oval track, or two hours of racing, whichever came first. The rules of the race required that a red flag be used to signal drivers to stop racing in the event the racetrack became blocked, or if an automobile was off its wheels, on fire, or stopped in a hazardous position. Otherwise, the race was considered a "non-stop" event.

During the May 31, 1987 "Enduro 200," the automobile operated by Bowen hit a guardrail and became disabled on the racetrack. The automobile was blocking part of the racetrack and was in a hazardous position. The flagman in the flag tower looked directly at the disabled automobile and Bowen motioned to the flagman to permit Bowen to remove himself and the automobile from the racetrack. However, the flagman did not attempt to stop the race or to otherwise permit Bowen to remove himself and the automobile from the racetrack. Therefore, Bowen simply remained in the automobile while the race continued. Eventually, Bowen's automobile was rear-ended by a vehicle driven by another race participant. As a result, Bowen's automobile burst into flames and Bowen was seriously injured.

At his deposition, Bowen testified that, in order to gain access to the pit area for the May 31, 1987 Enduro 200, he was required to sign a sheet of paper which was blank except for three columns of signature lines. Additionally, Bowen stated that he was required to complete a registration card which contained a release of liability. Prior to May 31, 1987, Bowen had participated in other "enduro" races at Kil-Kare Speedway. According to Bowen, he was required to sign a registration card and a blank sheet of paper containing signature lines for each of these events.

At Bowen's deposition, appellees produced a document entitled "Release and Waiver of Liability and Indemnity Agreement." This document (hereinafter referred to as "Exhibit A"), is dated May 31, 1987 and contains a waiver of claims, a release of liability, an express assumption of risk, an indemnity agreement, and a covenant not to sue. Exhibit A also contains columns of signature lines with signatures appearing thereon. Additionally, appellees produced another release (hereinafter "Exhibit B") which is similar to the Exhibit A release. The Exhibit B release was apparently for an enduro race conducted at Kil-Kare Speedway in August 1986.

During the deposition, Bowen admitted that his signature appears on the Exhibit A and B releases, but he denied having ever read or signed such a release for the May 31, 1987 race or any of his previous races. Bowen admitted to signing a registration card for the May 31, 1987 race which did contain a release of liability. ²

On July 28, 1989, appellees filed a motion for summary judgment with respect to Bowen's negligence claim and the consortium claims of Bowen's wife and children. To support this motion, appellees relied upon Bowen's deposition testimony and, further, appellees attached to their motion an affidavit by Barbara Chrysler, the secretary-treasurer of Kil-Kare, Inc. In her affidavit, Chrysler stated, among other things, that prospective competitors at Kil-Kare Speedway were required to sign a release (such as an Exhibit A release) before entry into the pit area for any racing event, and that this practice was adhered to " * * * throughout the world of motor racing." In their memorandum in support of the motion for summary judgment, appellees argued that Bowen properly executed the Exhibit A and B releases and the registration card release and that these releases operate as a complete bar to Bowen's claim and, thus, the loss of consortium claims of Bowen's wife and children.

Appellees responded to the motion for summary judgment and submitted an affidavit by Bowen. In his affidavit, Bowen stated, among other things, that, in order to gain access to the pit area at Kil-Kare Speedway, he was required to sign a sheet of paper which was blank except for columns of signature lines with signatures appearing thereon; that he had once inquired as to the purpose of signing this sheet of paper and was told by personnel at Kil-Kare Speedway that the signatures were necessary to determine who had entered the pit area; that the Exhibit A and B releases are not the types of forms he either saw or signed at Kil-Kare Speedway on May 31, 1987 or at any other time; and that he was never given the opportunity to read the Exhibit A and B releases at any time prior to the commencement of his claim against appellees.

With the foregoing evidence before it, the trial court granted appellees' motion for summary judgment and dismissed appellants' entire complaint. The trial court found that the Exhibit A release was validly executed and enforceable and that the Exhibit A release was a complete defense to Bowen's claim for negligence. The trial court also found that any derivative claims of Bowen's wife and children were subject to the same defense and were similarly barred. With respect to the enforceability of the Exhibit A release, the trial court found that no evidence was presented to suggest that appellees' conduct was willful or wanton. ³ The trial court did not address the enforceability of the Exhibit B release or the registration card release.

On appeal, the court of appeals affirmed the judgment of the trial court with respect to Bowen's negligence claim and the loss of consortium claims of Bowen's wife and children. However, the court of appeals reversed the judgment of the trial court which had granted summary judgment to appellees on the negligent infliction of emotional distress claims by Bowen's wife and children, finding that appellees did not move for summary judgment on these claims. The court of appeals remanded the cause to the trial court for further proceedings. Finding its decision to be in conflict with the decision of the Court of Appeals for Cuyahoga County in Swift v. Two Hundred Place (Nov. 13, 1986), Cuyahoga App. No. 51320, unreported, 1986 WL 12867, the court of appeals certified the record of this case to this court for review and final determination.

Young, Pryor, Lynn & Jerardi and Michael J. Burdge, Dayton, for appellants.

Isaac, Brant, Ledman & Becker and Donald L. Anspaugh, Columbus, for appellees.

DOUGLAS, Justice.

The primary issue in this case is whether the Exhibit A release entitles appellees to summary judgment on Bowen's negligence claim and the loss of consortium claims of Bowen's wife and children. For the reasons that follow, we find that the Exhibit A release does not entitle appellees to summary judgment on these claims.

In the case at bar, the court of appeals found that Bowen, at his deposition, admitted to having signed the Exhibit A and B releases but that later, in his sworn affidavit, Bowen denied signing the releases. The court of appeals determined that Bowen could not create a genuine issue of fact as to whether he signed the Exhibit A release by merely contradicting his own deposition testimony. Therefore, the court of appeals ignored portions of Bowen's affidavit and assumed, as fact, that Bowen had signed the Exhibit A release. On this basis, ⁴ the court of appeals held that appellees were entitled to summary judgment on Bowen's negligence claim and the loss of consortium claims of Bowen's wife and children. ⁵

Civ.R. 56(C) ⁶ sets forth the standards which must be applied in determining whether appellees are entitled to summary judgment. Civ.R. 56(C) lists the types of evidentiary materials which a court is to consider in rendering summary judgment. Among the evidentiary materials listed in the rule are depositions and affidavits. Civ.R. 56(C) clearly indicates that the evidence considered on summary judgment must be construed in the light most favorable to the party defending the motion. Thus, appellants herein are entitled to have any conflicting evidence construed in their favor. As such, we find that the court of appeals clearly erred in ignoring portions of Bowen's affidavit which were favorable to appellants solely because of some perceived discrepancy between the affidavit and Bowen's earlier deposition testimony. Furthermore, a careful review of Bowen's deposition and affidavit reveals that there is no discrepancy in Bowen's testimony. ⁷

The court of appeals determined, and we agree, that whether appellees were negligent in failing to timely stop the race is a disputed...