LaFrenz v. Lake County Fair Bd., 3--975A189

• Decision Date: 03 March 1977
• Docket Number: No. 3--975A189,3--975A189
• Parties: David LaFRENZ, Administrator of the Estate of Linda LaFrenz, Deceased, Plaintiff-Appellant, v. LAKE COUNTY FAIR BOARD et al., Defendants-Appellees.
• Court: Indiana Appellate Court

Page 605

360 N.E.2d 605

172 Ind.App. 389

David LaFRENZ, Administrator of the Estate of Linda LaFrenz Deceased, Plaintiff-Appellant, v. LAKE COUNTY FAIR BOARD et al., Defendants-Appellees.

No. 3--975A189.

Court of Appeals of Indiana, Third District.

March 3, 1977.

James R. Bielefeld, Crown Point, for plaintiff-appellant.

Michael L. Muenich, Hand, Muenich & Rodovich, Hammond, for Lake County Fair Bd.

Timothy M. Swan, Spangler, Jennings, Spangler & Dougherty, Crown Point, for Variety Attractions, Inc.

HOFFMAN, Judge.

On August 19, 1972, Linda LaFrenz was fatally injured when an automobile participating in a demonition derby jumped a barrier striking her. At the time of the occurrence, the decedent was standing in the pit area. Before entering the pit area, decedent had executed an instrument entitled, 'WAIVER AND RELEASE FROM LIABILITY AND INDEMNITY AGREEMENT.' Appellant David LaFrenz, Administrator of the Estate of Linda LaFrenz, filed a complaint to recover damages from the various defendants. ¹ Defendants-appellees Lake County Fair Board and Variety Attractions, Inc. moved for summary judgment based on the release. Such motions were sustained by the trial court on October 24, 1974.

Appellant brings this appeal contending that there are genuine issues of material fact which preclude the entry of summary judgment. Appellant asserts that these fact issues involve the decedent's state of mind as to whether she knowingly and willingly assumed the risk and as to whether she knowingly and willingly signed the release.

In reviewing the propriety of a summary judgment, the materials on file are to be liberally construed in favor of the opponent of the motion, and any doubt as to the existence of a genuine issue of material fact must be resolved against the proponent of the motion. Collins v. Dunifon (1975), Ind.App., 323 N.E.2d 264.

Appellant David LaFrenz testified in his deposition that a demolition derby was to be held at the Lake County Fair on August 19, 1972. Approximately four to six weeks prior to August 19, 1972, Linda LaFrenz signed an entry blank to participate in the demolition derby. She had attended demolition derbies previously. In 1970 she observed a demolition derby from the grandstand, and in 1971 she worked in a booth selling tickets. She was aware of the nature of a demolition derby in that the cars would crash into each other.

On August 19, 1972, the demolition derby was scheduled for two sessions--one in the afternoon and another in the evening. Linda LaFrenz was in the pit area during both sessions. She signed documents to be in the pit area as opposed to the grandstand area. She executed a document entitled, 'WAIVER AND RELEASE FROM LIABILITY AND INDEMNITY AGREEMENT' which stated that in consideration of being permitted in the 'RESTRICTED AREA' ² she agreed to release the appellees 'from all liability to the Undersigned, his personal representatives, assigns, heirs and next of kin for all loss or damage, and any claim or demands therefor, on account of injury to the person or property or resulting in death to the Undersigned, whether caused by the negligence of Releasees or otherwise while the Undersigned is upon the Restricted Area.' The agreement also contained a provision in which Linda LaFrenz agreed to indemnify and hold the Releasees harmless for 'any loss, liability, damage or cost they may incur due to the presence of the Undersigned in or about the Restricted Area and whether caused by the negligence of the Releasees or otherwise.'

Linda LaFrenz was issued a pit pass for the evening session after signing in. She obtained the pit pass to assist her husband, David LaFrenz, as a helper or mechanic.

Later that evening, while standing in the pit area, an automobile participating in the demolition derby jumped the arena barrier striking Linda LaFrenz. She subsequently died from these injuries.

At the time of the occurrence, Linda LaFrenz was twenty-six years of age, had graduated from high school, and had attended two years as a part-time student at Indiana University Northwest.

Before considering whether the release bars recovery in the immediate case, the public policy ramifications of exculpatory agreements should be examined. In this respect, parties are generally permitted to agree in advance that one is under no obligation of care for the benefit of the other, and shall not be liable for the consequences of conduct which would otherwise be negligent. Prosser, Law of Torts, § 68, at 442 (4th Ed. 1971).

Thus, in the absence of legislation to the contrary, there is ordinary no public policy which prevents parties from contracting as they see fit. Consequently, it is not against public policy to enter into an agreement which exculpates one from the consequences of his own negligence. Weaver v. American Oil Co. (1971), 257 Ind. 458, 276 N.E.2d 144, 49 A.L.R.3d 306; Indiana State Highway Commission v. Thomas (1976), Ind.App., 346 N.E.2d 252 (transfer denied); Vernon Fire & Casualty Insurance Co. v. Graham (1975), Ind.App., 336 N.E.2d 829; Loper v. Standard Oil Company et al. (1965), 138 Ind.App. 84, 211 N.E.2d 797. See also, 57 Am.Jur.2d, Negligence, §§ 20, et seq., at 362; Restatement of Contracts, § 574, at 1079, § 575, at 1080 (1932); Annot., 68 A.L.R.3d 7 (1976); Annot., 49 A.L.R.3d 321 (1973); Annot., 8 A.L.R.3d 1393 (1966); Annot., 175 A.L.R. 8 (1948).

Other jurisdictions which have addressed the question in the context of race track release forms have upheld the validity of the releases as against challenges that such were against public policy. Morrow v. Auto Championship Racing Ass'n Inc. (1972), 8 Ill.App.3d 682, 291 N.E.2d 30; Winterstein v. Wilcom (1972), 16 Md.App. 130, 293 A.2d 821; Theroux v. Kedenburg Racing Association (1965), 50 Misc.2d 97, 269 N.Y.S.2d 789; Seymour v. New Bremen Speedway, Inc. (1971), 31 Ohio App.2d 141, 287 N.E.2d 111; French v. Special Services, Inc. (1958), 107 Ohio App. 435, 159 N.E.2d 785.

However, there are several exceptions to the general rule that exculpatory clauses are not against public policy. For example, the Legislature has recently enacted a statute declaring all agreements in construction or design contracts (except highway contracts), which purport to indemnify the promisee against liability arising from the sole negligence or wilful misconduct of the promisee, void as against public policy. IC 1971, 26--2--5--1 (Burns Supp.1976).

Prosser, in his work on torts, notes several other exceptions to the general rule. One proviso is that the relationship of the parties must be such that their bargaining be free and open. Thus where one party is at such an obvious disadvantage in bargaining power that the effect of the contract is to put him at the mercy of the other's negligence, the contract is void as against public policy. This proviso is applicable on this basis between employer and employee. Prosser, Law of Torts, supra, § 68, at 442 (4th Ed. 1971).

A second exception noted by Prosser arises in transactions affecting the public interest, such as public utilities, common carriers, innskeepers, and public warehousemen. Id. at 443. Likewise it is against public policy in Indiana for a railway company, acting as a common carrier, to contract for indemnity against its own tort liability when it is performing either a public or quasi public duty such as that owing to a shipper, passenger, or servant. The Pennsylvania Railroad Co. v. Kent (1964), 136 Ind.App. 551, 560, 198 N.E.2d 615, 14 A.L.R.3d 434 (transfer denied, 246 Ind. 101, 202 N.E.2d 893).

This exception has been extended to other professional bailees who are under no public duty but who deal with the public, such as garagemen, owners of parking lots, and of parcel checkrooms, on the ground that the indispensable need for their services deprives the customer of all real equal bargaining power. Prosser, Law of Torts, supra, at 443--44. General Grain, Inc. v. Internat'l Harvester Co. (1968), 142 Ind.App. 12, 232 N.E.2d 616 (transfer denied).

Prosser finally notes that exculpatory agreements are not construed to cover the more extreme forms of negligence or any conduct which constitutes an intentional tort. Prosser, Law of Torts, supra, at 444--45.

The leading case in Indiana on exculpatory provisions is Weaver v. American Oil Co., supra (1971), 257 Ind. 458, 276 N.E.2d 144, 49 A.L.R.3d 306, wherein our Supreme Court struck down an exculpatory clause in a commercial lease arrangement. The court, at 464 of 257 Ind., at 148 of 276 N.E.2d, stated:

'When a party can show that the contract, which is sought to be enforced, was in fact an unconscionable one, due to a prodigious amount of bargaining power on behalf of the stronger party, which is used to the stronger party's advantage and is unknown to the lesser party, causing a great hardship and risk on the lesser party, the contract provision, or the contract as a whole, if the provision is not separable, should not be enforceable on the grounds that...