Gore v. Tri-County Raceway, Inc., Civ. A. No. 74-31-E.

• Decision Date: 08 October 1974
• Docket Number: Civ. A. No. 74-31-E.
• Citation: 407 F. Supp. 489
• Parties: Patricia H. GORE, who sues as Administratrix of the Estate of Charles Albert Gore, Deceased, Plaintiff, v. TRI-COUNTY RACEWAY, INC., Defendant.
• Court: U.S. District Court — Middle District of Alabama

407 F. Supp. 489

Patricia H. GORE, who sues as Administratrix of the Estate of Charles Albert Gore, Deceased, Plaintiff, v. TRI-COUNTY RACEWAY, INC., Defendant.

Civ. A. No. 74-31-E.

United States District Court, M. D. Alabama, E. D.

October 8, 1974.

Charles E. Floyd, Phenix City, Ala., J. Walter Owens, Owens, Littlejohn, Gower & Pugh, Columbus, Ga., for plaintiff.

Hatcher, Stubbs, Land, Hollis & Rothschild, Howell Hollis, Columbus, Ga., for defendant.

JUDGMENT

VARNER, District Judge.

This cause is now submitted upon the Defendant's motion for leave to amend its defensive pleadings filed herein July 5, 1974. The amendment and the defense therein were treated by the Court as a motion for summary judgment by its order of July 17, 1974. The defense offered in the motion is that Charles Albert Gore executed a release in favor of Tri-County Raceway, Inc., which bars any right of action the Plaintiff might otherwise have.

I. STATEMENT OF FACTS

This action arose out of the death of Charles Albert Gore as a result of injuries sustained in a wreck which occurred during an auto race, and Plaintiff seeks damages for Charles Gore's death relying on the theories of negligence and breach of contract.^* Jurisdiction of this Court is based on diversity of citizenship pursuant to 28 U.S.C. § 1332.

The Plaintiff is the widow of Charles Albert Gore, deceased, and she has been duly qualified as administratrix of the estate of the decedent.

The Defendant is Tri-County Raceway, Inc., an Alabama corporation, the race track involved in this case.

On May 19, 1972, Charles Gore was a participant in an automobile race at Defendant's race track. During the course of the event, he was involved in a wreck and sustained severe injuries resulting in his death on May 31, 1972. Defendant contends that prior to the actual race Charles Gore paid the entry fee and executed a required release and waiver of all liability in favor of Defendant. In her amended complaint, Plaintiff states that she is without knowledge upon which she can admit or deny the execution of said release and demands proof of such execution by the Defendant. Plaintiff additionally alleges many factors which, if proven, could obviate the effect of the release if it was executed by Charles Gore. Plaintiff contends that her demand of strict proof of the execution of the release creates a material issue of fact making summary judgment inappropriate.

The evidence which the Court has before it on this motion consists of the signed release form and the depositions of C. M. Duke, Eddie Graham and Danny Hall. One of the signatures on the release is, on face value, that of Charles Gore. No evidence has been presented which in any way contradicts that the said signature is that of Charles Gore, and Plaintiff does not deny that the signature is that of the deceased.

In addition to the signature itself, the depositions present evidence of the proper execution of the release. This evidence is that C. M. Duke, an officer of Defendant, instructed Eddie Graham to obtain a signature from every person entering the pit area. On the occasion in question, Graham had a table at the pit gate on which he kept the release form. Graham informed each person that the paper was a release and each person had an opportunity to read the release before signing it. Graham never knowingly permitted one person to sign for another. The person who signed "Charles Gore" on the release form identified himself as Charles Gore to Graham. This evidence is uncontradicted.

II. CONCLUSIONS OF LAW

It is well established that a party against whom a summary judgment motion is made cannot rest upon the mere allegations of his pleading to establish the presence of a material issue of fact. Rule 56(e), Federal Rules of Civil Procedure, states:

"When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him."

Mr. Justice Marshall in First National Bank v. Cities Service, 391 U.S. 253, at 289, 88 S.Ct. 1575, at 1592, 20 L.Ed.2d 569 (1968), stated that:

"What Rule 56(e) does make clear is that a party cannot rest on the allegations contained in his complaint in opposition to a properly supported summary judgment motion made against him."

It seems abundantly clear that Plaintiff cannot rely on the allegations of her complaint as a defense to the summary judgment motion. The only evidence before the Court on this motion favors the Defendant, and Plaintiff has not shown any evidence to support her allegations.

Defendant's motion is properly supported by the depositions and the attached release. There is no evidence that the signature of Charles Gore was forged or that the release was for any other reason not properly executed. Accordingly, this Court finds that, based on the evidence before it, the release was properly executed by Charles Gore.

If the release is sufficient to allow the Defendant to avoid liability in this case, the Defendant's motion for summary judgment is due to be granted. Under the doctrine of Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), the laws of Alabama must be applied in resolving this issue. No Alabama case has been found by the Court or by counsel for either party dealing specifically with a waiver of liability in automobile race track operations. Alabama does, however, seem to follow the general rule that a release of liability from the releasee's own negligence is valid absent any considerations of public policy involved in the situation. Validity of releases in Alabama is shown in Republic Steel Corp. v. Payne, 272 Ala. 483, 132 So.2d 581 (1961), where the Court upheld a release of a grantor from liability for his negligence. The Fifth Circuit, in Black Warrior Membership Corp. v. Mississippi Power Co., 413 F.2d 1221 (5th Cir. 1969), relied on Republic Steel, supra, in upholding an indemnity agreement which the Court said was substantially the same as a release from the releasee's negligence. In the comment entitled "Contractual Exemptions from Liability for Negligence in Alabama", 17 Ala.L.Rev. 283 (1965), the commentator concludes:

"Analysis of the Alabama decisions indicates that in this state those engaged in public enterprises, falling under the traditional heading of utilities, cannot ordinarily contract away their liability to those to whom they render

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