Hollamon v. Eagle Raceways, Inc., 37938

• Decision Date: 09 July 1971
• Docket Number: No. 37938,37938
• Citation: 188 N.W.2d 710,187 Neb. 221
• Parties: Lynch Guy HOLLAMON, Appellant, v. EAGLE RACEWAYS, INC., a Corporation, et al., Appellees.
• Court: Nebraska Supreme Court

Page 710

188 N.W.2d 710

187 Neb. 221

Lynch Guy HOLLAMON, Appellant, v. EAGLE RACEWAYS, INC., a Corporation, et al., Appellees.

No. 37938.

Supreme Court of Nebraska.

July 9, 1971.

Syllabus by the Court

1. Where one, knowing and comprehending the danger, voluntarily exposes himself to it, although not negligent in so doing, he is deemed to have assumed the risk and is precluded from a recovery for an injury resulting therefrom.

2. One who participates in the sport of stock car racing assumes the ordinary risks of that sport.

3. Summary judgment is an extreme remedy and should be awarded only when the issue is clear beyond all doubt, and any reasonable doubt touching the existence of a genuine issue of material fact must be resolved against the moving party.

4. Summary judgment is authorized when the moving party is entitled to judgment as a matter of law, it is clear what the truth is, and no genuine issue remains for trial.

Johnston, Grossman & Johnston, Lincoln, for appellant.

Cline, Williams, Wright, Johnson & Oldfather, Kevin Colleran, Ginsburg, Rosenberg, Ginsburg & Kirivosha, Joseph J. Cariotto, Lincoln, for appellees.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON and CLINTON, JJ.

SPENCER, Justice.

Plaintiff, Lynch Guy Hollamon, brought this action against Eagle Raceway, Inc., a corporation, and Louis S. Quattrocchi, defendants, for injuries sustained May 1, 1965, at the Eagle Raceway when Quattrocchi's racing car went out of control and catapulted into a spot in the pit area where plaintiff was sitting on a chair beside his own stock car which was participating in the races being held on that date. A motion for summary judgment was sustained, dismissing the action as against Eagle Raceway, Inc., which will hereinafter be referred to as defendant. Plaintiff perfected this appeal. We affirm.

The motion was premised on an anticipatory release executed by the plaintiff, and the assumption of the risks involved in automobile racing. The order of the district court did not specify the precise basis on which the dismissal was sustained.

The release and waiver of liability agreement was judicially established in Brander v. Eagle Raceways, Inc., a declaratory judgment action docketed at Docket 248, Page 194, in the district court for Lancaster County, Nebraska. That case was an equity action in which a jury was called at plaintiff's request. Among the issues presented was the execution and existence of a waiver and release from liability and indemnity agreement given by plaintiff to defendant. The jury determined that plaintiff signed the release and waiver of liability and indemnity agreement on May 1, 1965, prior to the races and prior to the accident, naming the Eagle Raceways, Inc., as the party to be released. The waiver of liability and indemnity agreement referred to in the verdict of the jury is the identical release agreement involved herein.

Plaintiff sets out 11 assignments of error. The only issue involved is whether or not the summary judgment was properly sustained and the cause of action properly dismissed as against Eagle Raceway, Inc. The answer depends upon whether there is any merit to either of the two principal issues presented: (1) The effect of the waiver and release agreement; and (2) whether plaintiff assumed the risk of injury.

In consideration of permission to enter upon the track premises operated by the defendant the plaintiff executed the release exonerating the defendant from all liability for injuries, and specifically assuming all risks incident to his presence on the premises. Plaintiff in his reply pleads fraud in the execution of the release. Whether the record sufficiently pierces the plaintiff's allegations is an issue it is not necessary for us to meet herein.

We find that the plaintiff, by participating in the racing program May 1, 1965, as a stock car owner, and entering the pit area as a participant in the racing program, brought himself within the ambit of the maxim 'volente non fit injuria,' which means where one, knowing and comprehending the danger, voluntarily exposes himself to it, although not negligence in so doing, he is deemed to have assumed the risk and is precluded from a recovery for an injury resulting therefrom. Munson v Bishop Clarkson Memorial Hospital, 186 Neb. 778, 186 N.W.2d 492.

Plaintiff in his brief contends that assumption of risk was not pleaded with sufficient factuality to constitute an issue herein. There is no merit to this contention. The defendant, more than a month before the filing of its second amended answer, had taken plaintiff's...