Fisher v. Stevens, 3665.

• Court: Court of Appeals of South Carolina
• Writing for the Court: CONNOR, J.
• Citation: 584 S.E.2d 149,355 S.C. 290
• Parties: David FISHER, as Personal Representative of the Estate of Daniel Adam Fisher, Sr., Respondent, v. Randy STEVENS; Robert E. Poindexter, Individually and d/b/a Low Country Tops Wrecker Service; Speedway of South Carolina, Inc. d/b/a Myrtle Beach Motor Speedway; and National Association for Stock Car Auto Racing, Inc., Defendants, Of whom Randy Stevens; Robert E. Poindexter, Individually and d/b/a Low Country Tops Wrecker Service; and Speedway of South Carolina, Inc. d/b/a Myrtle Beach Motor Speedway, are, Appellants.
• Docket Number: No. 3665.,3665.
• Decision Date: 21 July 2003

355 S.C. 290
584 S.E.2d 149

David FISHER, as Personal Representative of the Estate of Daniel Adam Fisher, Sr., Respondent,
v.
Randy STEVENS; Robert E. Poindexter, Individually and d/b/a Low Country Tops Wrecker Service; Speedway of South Carolina, Inc. d/b/a Myrtle Beach Motor Speedway; and National Association for Stock Car Auto Racing, Inc., Defendants,
Of whom Randy Stevens; Robert E. Poindexter, Individually and d/b/a Low Country Tops Wrecker Service; and Speedway of South Carolina, Inc. d/b/a Myrtle Beach Motor Speedway, are, Appellants

No. 3665.

Court of Appeals of South Carolina.

Submitted May 12, 2003.

Decided July 21, 2003.

355 S.C. 291

Willard D. Hanna, Jr. and Nancy K. Tracy, both of Surfside Beach, for Appellants Randy Stephens and Robert E. Poindexter, Individually and d/b/a Low Country Tops Wrecker Service

Perry D. Boulier, and Ginger D. Goforth, both of Spartanburg, for Secondary Appellant Speedway of South Carolina, Inc. d/b/a Myrtle Beach Motor Speedway.

Richard L. Hinson, of Florence, and Ronald G. Kronthal, of Gaithersburg, MD, for Respondent.

CONNOR, J.:

Daniel Adams Fisher, Sr., by and through his Conservator and Legal Guardian, Cole Smith, brought this action asserting negligence, gross negligence, and recklessness claims against Randy Stevens, Robert E. Poindexter, individually and d/b/a/

355 S.C. 292

Low Country Tops Wrecker Service, and Speedway of South Carolina, Incorporated ("Speedway"), for injuries suffered after falling from a wrecker truck at the Myrtle Beach Motor Speedway.¹ All parties filed cross-motions for summary judgment seeking a determination of whether the Release and Waiver of Liability and Indemnity Agreement signed by Fisher bars Fisher's recovery. The trial court partially granted Fisher's motion for summary judgment as to Stevens and Poindexter. The trial court also denied summary judgment to Speedway, finding a genuine issue of material fact existed concerning whether a master/servant relationship existed between Speedway and Fisher.² We affirm

FACTS

On June 10, 2000, Fisher served on a wrecker crew at Speedway. Fisher signed a release to gain access to the pit area where the wrecker was located and did not pay admission. Fisher had signed the release and served on a wrecker crew on numerous prior occasions. The release states in applicable part:

RELEASE AND WAIVER OF LIABILITY AND INDEMNITY AGREEMENT

THIS SECTION MUST BE CAREFULLY READ AND SIGNED BY THE APPLICANT IN CONSIDERATION OF BEING PERMITTED TO ENTER FOR ANY PUPOSE ANY RESTRICTED AREA (herein defined as including but not limited to the racing surface, pit areas, infield, paddock area, grandstand area, and all walkways, concessions, and other areas appurtenant to any area where any activity related to the EVENT(S) shall take place) or being permitted to compete, officiate, observe, work for, or for any purpose participate in any way in the EVENT(S)....

355 S.C. 293

1. HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE THE PROMOTERS, PARTICIPANTS, RACING ASSOCIATION, SANCTIOING ORGANIZATION OR ANY SUBDIVISION THEROF, TRACK OPERATOR, TRACK OWNER, OFFICIALS, VEHICLE OWNERS, DRIVERS, PIT CREWS, ANY PERSONS IN ANY RESTRICTED AREA ... ALL FOR THE PURPOSES HEREIN REFERRED TO AS THE "RELEASEES", FROM ALL LIABILITY to the undersigned, his/her personal representatives, assigns, heirs, and next of kin for any and all loss or damage, and any claim or demands therefore on account of injury to the person or property or resulting in death of the undersigned, whether caused by the negligence or gross negligence of the "RLEASEES" or otherwise while the undersigned is in or upon the restricted area, and/or competing, officiating in, observing, working for, or for any purposes participating in the EVENT(S).

...

3. HEREBY ASSUMES FULL RESPONSIBILITY FOR AND RISK OF BODILY INJURY, DEATH OR PROPETY DAMAGES DUE TO THE NEGLIGENCE OR GROSS NEGLIGENCE OF "RELEASEES" OR OTHEWISE while in or upon the restricted areas....

EACH OF THE UNDERSIGNED expressly acknowledges and agrees that the activities of the EVENT(S) are very dangerous and involve risk of serious injury and/or death.... EACH OF THE UNDERSIGNED further expressly agrees that the foregoing release, waiver, and indemnity agreement is intended to be as broad and inclusive as is permitted by the law of the Province or State in which the EVENT(S) is conducted....

During a race on the day of the accident, two racecars crashed on the racing surface and Fisher's wrecker responded to retrieve one of the vehicles. Fisher was riding on the back of a wrecker driven by Stevens and owned by Poindexter. After briefly slowing down to ask if the driver of the first car needed assistance, the wrecker moved off towards the second car. Fisher fell off the wrecker, suffering severe head injuries.

355 S.C. 294

Fisher brought suit alleging negligence, gross negligence, and recklessness. Stevens, Poindexter, and Speedway asserted the release as an affirmative defense. All parties filed cross-motions for summary judgment, asking for a determination of whether the release acted as complete bar to Fisher's claims. The trial court granted partial summary judgment to Fisher against Stevens and Poindexter, finding the release, as a matter of law, does not bar Fisher's claims. The court denied summary judgment to Speedway, finding an issue of fact existed concerning whether Fisher was an employee of the Speedway, thus invalidating the release as being contrary to public policy

STANDARD OF REVIEW

In reviewing the grant of a summary judgment motion, this Court applies the same standard which governs the trial court under Rule 56(c), SCRCP. Baughman v. American Tel. & Tel. Co., 306 S.C. 101, 410 S.E.2d 537 (1991). Summary judgment is proper when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Rule 56(c), SCRCP. "In determining whether any triable issues of fact exist, the evidence and all inferences which can be reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party." Strother v. Lexington County Recreation Comm'n, 332 S.C. 54, 61, 504...