Grbac v. Reading Fair Co., Inc.

• Decision Date: 18 September 1981
• Docket Number: Civ. A. No. 80-46.
• Parties: June GRBAC, Administratrix of the Estate of Michael J. Grbac, Deceased, Plaintiff, v. READING FAIR COMPANY, INC., Fair Investment Company, Inc., Reading Stock Cars, Inc., Reading Stock Car Racing Association and Lindy V. Vicari, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

521 F. Supp. 1351

June GRBAC, Administratrix of the Estate of Michael J. Grbac, Deceased, Plaintiff, v. READING FAIR COMPANY, INC., Fair Investment Company, Inc., Reading Stock Cars, Inc., Reading Stock Car Racing Association and Lindy V. Vicari, Defendants.

Civ. A. No. 80-46.

United States District Court, W. D. Pennsylvania.

September 18, 1981.

Henry H. Wallace, Wallace, Chapas & Gravina, Pittsburgh, Pa., for plaintiff.

Warren D. Ferry, Murovich, Reale & Fossee, Pittsburgh, Pa., for defendants.

MEMORANDUM OPINION

COHILL, District Judge.

On October 29, 1978, Michael Grbac sustained fatal injuries while driving a stock car in the Schmidt's 200 Stock Car Race at the Reading Fairgrounds, Reading, Pennsylvania. During the fifteen years that Mr. Grbac had been racing stock cars, he raced at the Reading Fairgrounds on at least twenty-nine occasions. Each time that he participated in a race at the Reading Fairgrounds, he signed a "Release and Waiver of Liability and Indemnity Agreement." See Supplement To Defendants' Motion For Summary Judgment.

Following Mr. Grbac's death, his wife, June Grbac, filed a wrongful death and survival action against the Reading Fair Company, Inc., the Fair Investment Company, Inc., Reading Stock Cars, Inc., the Reading Stock Car Racing Association, and Lindy Vicari. Mr. Vicari was the sole owner and president of Fair Investment Company, Inc. and Reading Stock Cars, Inc. at the time of the accident that resulted in Mr. Grbac's death. The complaint alleges that the "defendants negligently and carelessly failed to provide warning lights, flags, signals and other safety devices with which to notify other persons driving in the race to slow down as they approached the location of" the decedent's disabled stock car, or in the alternative, that "such warning lights, flags, signals or other safety devices as were provided by the defendants were either not operational or were not adequate to provide the necessary warnings." The complaint further alleges that the "defendants negligently and carelessly failed to warn or advise plaintiff's decedent and the other drivers participating in said race of the lack of warning lights, flags, signals or other safety devices which were operational and adequate to provide the necessary warning of danger ahead."

The defendants have filed a motion for summary judgment on the grounds that the plaintiff's decedent voluntarily executed a "Release and Waiver of Liability and Indemnity Agreement" and that the plaintiff's decedent voluntarily assumed the risk of participating in the Schmidt's 200. Pursuant to Federal Rule of Civil Procedure 56(c), a federal court will grant summary judgment only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." When considering a motion for summary judgment, a court must view the facts in the light most favorable to the non-moving party. See Goclowski v. Penn Central Transportation Company, 571 F.2d 747, 751 (3d Cir. 1977); Smith v. Pittsburgh Gage and Supply Company, 464 F.2d 870, 874 (3d Cir. 1972). The movant has the burden of establishing that no genuine issue of fact exists. See Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d 840, 848 (3d Cir. 1974). With these principles in mind, we find that no genuine issue of material fact exists and that the defendants are entitled to a judgment as a matter of law on the ground that the plaintiff's decedent voluntarily executed a valid "Release and Waiver of Liability and Indemnity Agreement."

The document that Mr. Grbac signed on October 29, 1978 reads as follows:

TRACK Reading, Pa. DATE 10-29-78

RELEASE AND WAIVER OF LIABILITY AND INDEMINITY sic AGREEMENT.

IN CONSIDERATION of being permitted to enter for any purpose the RESTRICTED AREA (herein defined as the area to which admission for the general public is prohibited, including but not limited to the pit areas, racing surface and infield, including walkways, concessions and other appurtenances therein) each of the Undersigned, for himself and personal representatives, assigns, heirs and next of kin:

1. HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE THE Promoters, Racing Association, Track Operator, Track Owner, Landowner, Possessors Lessors, and each of them their officers, and employees, all for purposes herein referred to as RELEASEES, from all liability to the Undersigned, his personal representatives, assigns, heirs and next of kin for all loss or damages, and any claim or demands therefor, on account of injury to the person or property or resulting in death of the Undersigned, whether caused by the negligence of Releasees or otherwise while Undersigned is upon the Restricted Area; and

2. HEREBY AGREES TO INDEMNIFY AND SAVE AND HOLD HARMLESS THE Releasees and each of them from any loss, liability, damage or cost they may incur due to the presence of the leasees or otherwise.

Each of the Undersigned 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 state in which the race is conducted and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect.

Each of the Undersigned warrants the following statements are true and correct and understands that the Releasees have relied on them in entering into the foregoing Release, Waiver and Indemnity Agreement and in giving the Undersigned permission to enter the Restricted Area:

1. No oral representations, statements or inducements apart from the foregoing written agreement have been made.

2. He is twenty-one or more years of age.

3. He assumes full responsibility and risk of bodily injury, death or property damage due to negligence of Releasees or otherwise upon entering the Restricted Area.

4. If a driver, he has a valid driver's license from the state of his residence.

5. HE HAS READ AND VOLUNTARILY SIGNS THE RELEASE AND

WAIVER OF ALL LIABILITY AND INDEMNITY AGREEMENT.

We must determine the validity and the enforceability of this document under the law of the Commonwealth of Pennsylvania because our jurisdiction over the subject matter of this case rests on diversity of citizenship. See Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

The most recent Pennsylvania decision that examined the validity and the enforceability of a release from liability for personal injury was Zimmer v. Mitchell and Ness, 253 Pa.Super. 474, 385 A.2d 437 (1978), aff'd per curiam, 490 Pa. 428, 416 A.2d 1010 (1980). The plaintiff in Mitchell and Ness alleged claims of negligence, breach of warranty and strict liability in tort against a ski rental shop for injuries that he sustained when the bindings on his rented skis failed to release after he fell on the beginners' slope. At the time that the plaintiff rented the skis, he signed a document entitled "Rental Agreement And Receipt." This document read in pertinent part:

"I understand that so-called safety bindings furnished herewith are releasable bindings designed to reduce the risk or degree of injuries from falling and that these bindings will not release under ALL circumstances and are no guarantee of my safety.

I furthermore release Mitchell and Ness from any liability for damage and injury to myself or to any person or property resulting from the use of this equipment, accepting myself the full responsibility for any and all such damage or injury."

253 Pa.Super. at 477-78, 385 A.2d at 438. The defendant moved for summary judgment on the ground that the signed document constituted a valid release from liability for personal injury. The trial court granted the defendant's motion; the plaintiff appealed.

The Superior Court framed the issue as "whether the agreement is valid and enforceable such that appellee is not legally liable for injuries suffered by appellant." Id. at 478, 385 A.2d at 438-39. Acknowledging that the law does not favor exculpatory clauses, the court stated that it would construe the document strictly and resolve any ambiguities against the ski rental shop. The court used a four-part test to determine the validity of the exculpatory clause: (1) the contract must not violate any policy of the law; (2) the contract must be between individuals and relate to their private affairs; (3) each party must be a free bargaining agent rather than one drawn into a contract of adhesion; and (4) the agreement must express the intent of the parties with the utmost particularity. Id., 385 A.2d at 439.

Applying the four-part test to the facts of the case before it, the Superior Court quickly concluded that the ski rental agreement did not violate any policy of the law, that the agreement related to the private affairs of individuals and that the case did not involve a contract of adhesion because the plaintiff voluntarily chose to ski for recreation. The fourth part of the test, however, raised a more difficult issue. The plaintiff argued that the terms of the agreement lacked sufficient particularity, and therefore, that the agreement failed to advise him adequately that he was signing a release from liability for personal injury. In support of his position, the plaintiff noted that the word "negligence" did not appear in the document and that the title of the document — "Rental Agreement And Receipt" — did not reasonably suggest to the reader that the document contained an exculpatory clause. The Superior Court rejected the plaintiff's argument, stating that it had to consider the agreement as a whole. Relying on the language in the document that provided that "bindings will not release under ALL circumstances and are no guarantee of my safety" and that "I ... release Mitchell and Ness from any liability for damage and...