Lee v. Beauchene, 13811
| Decision Date | 18 November 1982 |
| Docket Number | No. 13811,13811 |
| Citation | 337 N.W.2d 827 |
| Parties | Lloyd A. LEE, Plaintiff and Appellant, v. Cecil BEAUCHENE, Individually and d/b/a Interstate Speedway, Defendant and Appellee. . Considered on Briefs |
| Court | South Dakota Supreme Court |
Denis R. Eckert, Elk Point, for plaintiff and appellant.
John Simko of Woods, Fuller, Shultz & Smith, P.C., Sioux Falls, for defendant and appellee.
This is an appeal from an order granting appellee Cecil Beauchene's motion for summary judgment and dismissing appellant Lloyd A. Lee's complaint with prejudice. We affirm.
Appellee owns the Interstate Speedway, a dirt race track near Jefferson, South Dakota. On May 27, 1979, appellant, who had previously raced on the track, paid the entrance fee for a stock car race. Before entering the infield or racing he signed a "Voluntary Release-Assumption of Risk and Indemnity Agreement" which provided,
Each undersigned person requests and is granted permission (1) to enter the RESTRICTED AREA, (2) to participate as driver, crew or assistant in racing events, (3) to compete for money, prizes, recognition or reward, (4) to be covered by participants' hospitalization insurance, if applicable, as limited by the master insurance policy (all collectively herein called "permissive entry").
In consideration of "permissive entry" to the restricted area, which is the area from which admission to the general public is restricted, which includes but is not limited to the pit area, racing surface, infield, adjacent walkways, concessions, and other appurtenances, I (each of the undersigned) for myself, my personal representatives, heirs, next of kin, spouse and assigns, DO HEREBY:
1. RELEASE, DISCHARGE AND COVENANT NOT TO SUE the track operators, track owners, land owners, racing association, and each of them, their officers, agents and employees (all hereinafter collectively referred to as "releasees") from any and all claims and liability arising out of strict liability or ordinary negligence of releasees or any other participant which causes the undersigned injury, death, damages or property damage. I hereby covenant to hold releasees harmless and indemnify releasees for any claim judgment or expense releasees may incur arising out of my activities or presence in the restricted area.
2. UNDERSTAND that my entry into the restricted area and/or participation in racing events contains DANGER AND RISK OF INJURY OR DEATH, that conditions of the racing surface change from time to time and may become more hazardous, and that there is INHERENT DANGER in racing which I appreciate and voluntarily assume, because I choose so to do. I have observed many races of the type that I seek to participate in, I have inspected the racing surface, access roads, shoulders, equipment, barriers or lack thereof, lighting or lack thereof, and the weather conditions, I further know that other contestants and participants pose a danger to me, nevertheless, I VOLUNTARILY ELECT TO ACCEPT ALL RISKS connected with my entry into the restricted area and/or participation in any racing events.
3. ACKNOWLEDGE that I am aware of all track and equipment safety regulations and I have complied with each regulation. If I have failed so to do, I ASSUME ALL RISK for myself and assume all liability to others for such failure, and I hereby RELEASE releasees for any failure in inspecting my vehicle or others. I am not an agent, servant or employee of releasees and no oral representations or inducements have been made to me to sign this agreement. If any portion of this agreement is held invalid, it is agreed that the balance thereof shall continue in full legal force and effect.
4. AGREE that this agreement shall apply to any incident, injury, accident or death occurring at the captioned track on the above date, and to any incident, injury, accident or death occurring within a period of one (1) year after the execution of this agreement.
I HAVE READ THIS DOCUMENT. I UNDERSTAND IT IS A RELEASE OF ALL CLAIMS.
I UNDERSTAND I ASSUME ALL RISK INHERENT IN RACING.
I VOLUNTARILY SIGN MY NAME EVIDENCING MY ACCEPTANCE OF THE ABOVE PROVISIONS.
According to appellant, all race cars...
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