Conradt v. Four Star Promotions, Inc., 7131-6-III

• Decision Date: 13 November 1986
• Docket Number: No. 7131-6-III,7131-6-III
• Citation: 728 P.2d 617,45 Wn.App. 847
• Parties: David W. CONRADT and Cheryl Conradt, husband and wife, Appellants, v. FOUR STAR PROMOTIONS, INC., d/b/a Tri-City Raceways; Wayne Walden and Karolyn Walden, husband and wife; Gene A. Wagner and Vickie Wagner, husband and wife; Jerry Harmon and Jane Doe Harmon, husband and wife; Jack Goodell and Sheryl Goodell, husband and wife, Respondents.
• Court: Washington Court of Appeals

Page 847

45 Wn.App. 847

728 P.2d 617

David W. CONRADT and Cheryl Conradt, husband and wife, Appellants, v. FOUR STAR PROMOTIONS, INC., d/b/a Tri-City Raceways; Wayne Walden and Karolyn Walden, husband and wife; Gene A. Wagner and Vickie Wagner, husband and wife; Jerry Harmon and Jane Doe Harmon, husband and wife; Jack Goodell and Sheryl Goodell, husband and wife, Respondents.

No. 7131-6-III.

Court of Appeals of Washington Division 3, Panel Two.

Nov. 13, 1986.

William J. Connor, Horton, Wilkins & Faurholt, Kennewick, for appellants.

Michael L. O'Donnell, Raekes, Rettig, Osborne, Forgette & O'Donnell, Kennewick, for respondent.

THOMPSON, Judge.

David W. and Cheryl Conradt appeal the summary judgment dismissal of their personal injury and consortium claims. We affirm.

On July 4, 1982, David Conradt was injured participating in a demolition race at the Richland Tri-City Raceways, operated by Four Star Promotions, Inc. (Four Star). On January 24, 1984, the Conradts filed a personal injury complaint against Four Star and others, which was later amended to include, inter alia, a claim for Mrs. Conradt's loss of consortium. The trial court granted Four Star's motion for summary judgment and the Conradts appeal. The issues revolve around the effect of a printed release of liability form purportedly signed by Mr. Conradt prior to a change in the direction of the race.

The first issue is whether the court should have ruled on summary judgment that Mr. Conradt signed the release form. The purpose of a summary judgment is to avoid a useless trial where there is no genuine issue of material fact. On review we must determine whether the affidavits, facts, and record have created such an issue of fact material to the cause of action. Seven Gables Corp. v. MGM/UA Entertainment Co., 106 Wash.2d 1, 12, 721 P.2d 1 (1986); Hewitt v. Miller, 11 Wash.App. 72, 74, 521 P.2d 244 (1974). Moreover, the burden is on the adverse party. Seven Gables, 106 Wash.2d at 13, 721 P.2d 1.

In granting the motion as it pertained to Four Star's contention Mr. Conradt signed the release, the trial court noted:

Now, I'm not about to accept the proposition there's an issue of fact whether or not there's a release signed the year before. There's no facts that would lead to that conclusion. It's totally speculation and it defies the imagination, in fact, to suggest that this one signed by some 75 people was all signed a year before. Well, not only that, but it could be perjury and fraud and a few other things for the defendant to come in with a release that was signed the year before--that would be uncovered about as fast as anything I would think of.

Mr. Conradt testified that although he did not specifically recall signing anything that day, "it was my custom to sign in and I may have done so on the day in question". Moreover, his son, Danny Conradt, testified:

When I signed in, I was instructed to do just that, sign in. Nobody ever told me that I was signing any type of an agreement.

That after signing in, I attended the pit meeting before the race.

The first page of the release form itself, dated July 4, 1982, contained the signature of David Conradt on the lowermost right- hand line, followed by the designation of car number 47. The following page was a copy of the same form on which the list of names continued from the upper left line with Dan Conradt, Wayne Walden, and Dave Conradt, all designating car number 47.

Although Mr. Conradt points out the fact the one witness who observed him sign the release mistakenly recalled him driving a "Sunkist" vehicle which he actually drove on a prior occasion, he admits the signature on the form, accompanied by those of his pit crew, appeared to be his. Absent a more unequivocal denial, Mr. Conradt did not meet his burden under these facts.

The second issue is whether the questions raised by Mr. Conradt involving the conspicuous nature of the release and the material change in risk after the release was executed should have been disposed of on summary judgment. Contracts against liability for negligence are valid unless releasing language is so inconspicuous reasonable persons could reach different conclusions as to whether the document was unwittingly signed, Baker v. Seattle, 79 Wash.2d 198, 200, 484 P.2d 405 (1971); Hewitt, 11 Wash.App. at 78, 521 P.2d 244.

The document at issue here, entitled "Voluntary Waiver and Release from Liability and Indemnity Agreement" was addressed entirely to the obvious and inherent risks and danger in racing, the voluntary assumption of those risks, and the waiver and release of the promoters and others from liability, with boldface emphasis throughout. Additionally, above each signature line on the lower portion of the form was printed the conspicuous statement "I have read this release." Even if we accept Mr. Conradt's argument the form was on a clipboard and partially covered by other materials, the admonition to read the release form above each signature line on the lower section of the form could not reasonably have escaped his notice.

Mr. Conradt further argues that after he signed the form, the risk was materially altered by the change in direction of the race. However, he admits past demolition races were run both clockwise and counterclockwise and he had previously competed in both directions. When asked if he was concerned about the change in direction, Mr. Conradt replied:

A Oh, I had concerns about the directions. I knew that I wouldn't be able to corner as well, but I knew this as soon as he had told me. And since I had run that direction before, I felt that I would take it easy and be able to handle it. I knew it was risky, but I didn't know how risky.

Q You were willing to take the risk, though, rather than pull off to the side is what I'm asking?

A Yes.

Q Pardon?

A Yes. Yes.

Under these circumstances, the risk was inherent in the nature of the activity regardless of which direction the cars were running, and no issue of fact exists as to Mr. Conradt's contemplation of the risk involved.

Another related issue involves the propriety of summary judgment concerning whose liability was to be waived. Mr. Conradt underscores testimony from one of the defendants to the effect the release applied to the negligence of other drivers, and not the operators and owners of the race track. But the express language of the release is not restricted to just participants:

2. ... the speedway, fairgrounds, or raceway, the Promoters, Participants, Sanctioning Organization, Racing Association, Track Operators, Track Owners, Landowners, each and every other person who signs this RELEASE or any identical release form during the effective period of this release, and all officers, directors, agents or employees of any of the foregoing specified entities.

We find no question exists as to an intent to limit the waiver to negligence of other drivers. The unambiguous, all-inclusive language of the release controls.

The Conradts next argue summary judgment was not proper because of a question of fact concerning the failure of the release on its own terms. The portion of the release relevant to this issue provided:

3. This speedway and premises onto which he is about to enter is not a place of amusement or recreation, but instead is a professional forum in which the undersigned can profit from prize money, publicity, advertising exposure, employment and other such rewards and remunerations, and each of the undersigned further agrees to execute this release in consideration of being allowed to enter the RESTRICTED...