Johnson v. Thruway Speedways, Inc.
| Decision Date | 13 July 1978 |
| Parties | Joseph M. JOHNSON et al., Appellants, v. THRUWAY SPEEDWAYS, INC., et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Gordon, Gordon & Siegel, Schenectady (Harold D. Gordon, Schenectady, of counsel), for appellants.
Bouck, Holloway & Kiernan, Albany (John R. Casey, Albany, of counsel), for Thruway Speedways, Inc., respondent.
Carter, Conboy, Bardwell, Case & Blackmore, Albany (Wayne L. Burton, Albany, of counsel), for Richard Pollack, respondent.
Before GREENBLOTT, J. P., and KANE, MAIN, MIKOLL and HERLIHY, JJ.
On August 9, 1975 at about 10:30 P.M., while a spectator in the grassy infield portion of an automobile racetrack known as Fonda Speedway, the plaintiff Joseph M. Johnson was struck and injured by a pick-up truck driven by the defendant Richard Pollack, an employee of the defendant Thruway Speedways, Inc., the operator of the racetrack. It is his contention that he was among a crowd of spectators watching a race when the truck, a maintenance vehicle not involved in the race, came down along the grass and through the crowd, rather than use an access road provided for it, and collided with him. He also maintains that the truck was without lights or other safety equipment and that its driver had been drinking. In their answers to the complaint, defendants interposed as an affirmative defense that Johnson had executed a release of liability prior to the incident. Based on that release, Special Term granted defendants' motion for summary judgment and denied plaintiffs' cross-motion to dismiss the defense. We agree that the motion to strike the defense of release was properly denied, but conclude that the grant of summary judgment in defendants' favor was premature.
Although it is well settled that releases of liability for injuries arising in connection with auto racing were, as a general rule, valid and not against public policy at the time this incident arose (see Kotary v. Spencer Speedway, 47 A.D.2d 127, 365 N.Y.S.2d 87; Church v. Seneca County Agri. Soc., 41 A.D.2d 787, 341 N.Y.S.2d 45 affd. 34 N.Y.2d 571, 354 N.Y.S.2d 945, 310 N.E.2d 541; Gervasi v. Holland Raceway, 40 A.D.2d 574, 334 N.Y.S.2d 527; Solodar v. Watkins Glen Grand Prix, 36 A.D.2d 552, 317 N.Y.S.2d 228), 1 other factors must be considered before they can be given effect. The instrument of release must be strictly construed (Phibbs v. Ray's Chevrolet Corp., 45 A.D.2d 897, 357 N.Y.S.2d 211) and such an interpretation of the general language contained in the instant release could lead to a conclusion that it only applied to injuries sustained by a spectator which were associated with the risks inherent in the activity of automobile...
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...or understand the contents of the contract, this does not excuse her from being bound by its terms. See Johnson v. Thruway Speedways, Inc., 63 A.D.2d 204 (N.Y. App. Div. 1978). "In the absence of fraud or other wrongful act on the part of another contracting party, a party who signs or acce......
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