Ferrell v. Southern Nevada off-Road Enthusiasts, Ltd.

• Decision Date: 23 September 1983
• Docket Number: OFF-ROAD
• Citation: 195 Cal.Rptr. 90,147 Cal.App.3d 309
• Court: California Court of Appeals Court of Appeals
• Parties: Frank FERRELL, Plaintiff and Appellant, v. SOUTHERN NEVADAENTHUSIASTS, LTD, et al., Defendants and Respondents. Civ. 68150.

Page 90

195 Cal.Rptr. 90

147 Cal.App.3d 309

Frank FERRELL, Plaintiff and Appellant, v. SOUTHERN NEVADA OFF-ROAD ENTHUSIASTS, LTD, et al., Defendants and Respondents.

Civ. 68150.

Court of Appeal, Second District, Division 4, California.

Sept. 23, 1983.

Hearing Denied Nov. 16, 1983.

Hurley & Grassini and Roland Wrinkle, North Hollywood, for plaintiff and appellant.

Lewis, D'Amato, Brisbois & Bisgaard, Duane C. Musfelt and Jeffrey R. Kurtock, San Francisco, for defendants and respondents.

McCLOSKY, Acting Presiding Justice.

Plaintiff Frank Ferrell appeals from a judgment entered against him and in favor of defendants Southern Nevada Off-Road Enthusiasts (SNORE) and Walter Lott pursuant to the provisions of Code of Civil Procedure section 437c after the trial court granted defendants' motion for a summary judgment.

FACTS

According to the complaint, plaintiff Frank Ferrell was severely burned and injured while driving in a dune buggy race which took place on government owned land in Nevada. Prior to the race, plaintiff Ferrell, as a condition of entering the race, signed a document entitled "RELEASE OF LIABILITY." ¹ During the race, Ferrell's vehicle, collided with a vehicle of a spectator parked, along with other spectator vehicles, on a race course designed, set up, maintained and operated by defendants without barriers, warnings, markings, instructions, supervision or any other measures to prevent the very type accident which occurred in this case. The trial court granted defendants' motion for summary judgment on the ground that plaintiff Frank Ferrell presented no triable issue of fact and that SNORE and Lott had shown by admissible evidence and reasonable inferences that Frank Ferrell's claims were without merit.

CONTENTIONS

Plaintiff contends as follows: (I) The SNORE form does not say what defendants contend it says and therefore cannot be the basis for summary judgment. (II) Language of indemnity is treated differently under California Law, as to its excuplatory effect, than language of release. (III) Agreements purporting to release a party from his future negligence are strictly construed and will not exculpate that party unless the words of the agreement clearly and explicity state that intent. (IV) It has been expressly held that it is an issue of fact whether plaintiff actually intended to discharge any future claim he may have for the negligence of the defendants and therefore such an issue is not properly resolved on summary judgment. (V) There is a triable issue of fact as to the understanding of the parties in the present case. The moving papers failed to establish as a matter of law that either of the two defendants were parties to the contract.

DISCUSSION

I

The purpose of the summary judgment procedure under Code of Civil Procedure section 437c is to expedite litigation by avoiding needless trials. (Truslow v. Woodruff (1967) 252 Cal.App.2d 158, 60 Cal.Rptr. 304.) A summary judgment must, and may only, be properly granted where no material triable issue of fact exists and the moving party's affidavits set forth sufficient facts to sustain a judgment in its favor. (City of Torrance v. Castner (1975) 46 Cal.App.3d 76, 120 Cal.Rptr. 23; Code Civ.Proc., § 437c; Lipson v. Superior Court (1982) 31 Cal.3d 362, 374, 182 Cal.Rptr. 629, 644 P.2d 822.) When no triable issue of fact exists and the contentions of the parties turn upon an issue of law, summary judgment is proper. (Burke v. Concrete Accessories, Inc. v. Superior Court (1970) 8 Cal.App.3d 773, 87 Cal.Rptr. 619.) Inasmuch as summary judgment denies the right of an adverse party to a full trial of the case, it should be used with caution. Any doubts as to the propriety of granting such motion should be resolved against the moving party. (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785.)

II

Respondent asserts: "Ferrell's negligence action, including the effect of the Release of Liability, is controlled by Nevada Law. The release was entered into in Nevada, the race took place in Nevada, and plaintiff's injuries occurred in Nevada. See 4 Witkin, Summary of California Law, Torts, § 191, p. 2479 (8th ed. 1974). Because of the paucity of decisions in Nevada on this particular issue, the superior court relied on cases involving race car driver releases from many jurisdictions. [p] Counsel are not aware of any Nevada cases dealing with exculpatory contracts as applied to race car drivers. Nevertheless, a conventional post-accident settlement release cannot be set aside absent an allegation of fraud, duress or mistake. Jones v. Revell 92 Nev. 635, 555 P.2d 1327 (1976); Igert v. State Farm Mut. Automobile Ins. Co., 91 Nev. 240, 533 P.2d 1365 (1975)."

Respondent then goes on to state that "[e]very other jurisdiction in which a race car driver signed a contract plainly and conspicuously exculpating the organizers from liability from negligence has held the exculpatory agreements valid....

"The only case in which an exculpatory agreement involving a race track has not been upheld is Celli v. Sports Car Club of America, Inc. 29 Cal.App.3d 511, 105 Cal.Rptr. 904 (1972)."

Evidence Code section 311 provides that if the law of a state other than this state is applicable and such law cannot be determined, the court may, as the ends of justice require, either: "(a) Apply the law of this state if the court can do so consistently with the Constitution of the United States and the Constitution of this state; or [p] (b) Dismiss the action without prejudice or, in the case of a reviewing court, remand the case to the trial court with directions to dismiss the action without prejudice." (See also Gagnon Co, Inc. v. Nevada Desert Inn (1955) 45 Cal.2d 448, 453-454.) Since we cannot determine the law of Nevada as to agreements purporting to exculpate a party from its liability for the results of its future negligence or other tortious conduct, we deem that the ends of justice are best served by applying the law of California in that area as it appears to be in accord with the weight of authority of the United States on this subject.

We start with the principle that "[i]n construing a contract, the question whether an uncertainty or ambiguity exists is one of law, and the lower court's finding on the issue is not binding on appeal. [Citation.]" (Brant v. California Dairies, Inc. (1935) 4 Cal.2d 128, 133, 48 P.2d 13.) Here, we examine whether a contractual clause is clear and explicit. We, therefore, proceed to examine it anew.

A reading of the case law on the subject reveals a strong and growing distaste in our state and in our nation for exculpatory release provisions releasing a tortfeasor from liability for his or her future negligence or misconduct. (See Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441, the many cases gathered therein and Henrioulee v. Marin Ventures, Inc. (1978) 20 Cal.3d 512, 143 Cal.Rptr. 247, 573 P.2d 465.

Further, regardless of whether a party seeking an exculpatory release or indemnification for its future tortious conduct engaged in a business involving the public interest, our state follows the weight of authority of the United States in holding that where the language of such instrument was prepared entirely by the party relying on it, words clearly and explicitly expressing that intent of the parties are required. (Celli v. Sports Car Club of America, Inc. (1972) 29 Cal.App.3d 511, 519-520, 105 Cal.Rptr. 904 and the cases cited therein; emphasis added.)

In Sproul v. Cuddy (1955) 131 Cal.App.2d 85, 95, 280 P.2d 158, the court of appeal reached a result rejecting the purported effect of an exculpatory clause as to a rental agreement for a defective walker which provided that the licensor "... will in no way be responsible for damages resulting from the use thereof." (Id., at p. 93, 280 P.2d 158.) The Sproul court said at page 95, 280 P.2d 158: "Except where discountenanced by public policy or some statutory inhibition, a party may contract to absolve himself from liability for negligence; the law, however, looks with disfavor on such attempts to avoid liability or secure exemption from one's personal negligence, and construes such provisions strictly against the person relying on them, especially when he is the author of the document; to be sufficient as an exculpatory provision against one's own negligence, the party seeking to rely thereon must select words or terms clearly and explicitly expressing that this was the intent of the parties; and that seemingly broad language will not be isolated from its context and will be read with due regard to the maxim of strict construction." (Emphasis added.)

In Celli v. Sports Car Club of America, Inc., supra, 29 Cal.App.3d 511, 105 Cal.Rptr. 904, defendants, operators of track facilities, sponsored an automobile race. Spectators who purchased special pit passes were allowed in the paddock and pit areas, with no protection except a row of parked automobiles. Defendants were aware of accidents resulting from cars going out of control, and were aware that the particular driver involved in the present accident had already had four spins and a crash. Nevertheless, defendants, with authority to disqualify contestants lacking skill, did not disqualify him; and, with knowledge of safety precautions used on other tracks (e.g., ditch, pit wall, strong barriers), did not employ them. While making a practice run, that driver's vehicle went out of control, killing him and injuring plaintiffs who were in the pit area. The principal defense was an exculpatory release agreement in the pit passes. Judgment for plaintiffs on jury verdicts was affirmed by the appellate court. The general clause releasing from liability for injuries "resulting from any accident or other occurrence" did not cover liability for active negligence which consisted of a negligent omission; the failure to provide a...