Lux v. Cox
| Decision Date | 23 September 1998 |
| Docket Number | No. 96-CV-495A.,96-CV-495A. |
| Citation | 32 F.Supp.2d 92 |
| Parties | Leslie N. LUX and Richard Christopher Lux, Plaintiffs, v. Barbara COX, et al., Defendants. |
| Court | U.S. District Court — Western District of New York |
Gregory P. Krull, Magner & Love, P.C., Buffalo, New York, for plaintiffs.
Dale A. Ehman, Bouvier, O'Connor, Buffalo, New York, for defendant Barbara Cox.
Lynda M. Tarantino, Saperston & Day, P.C., Buffalo, New York, for defendants Daniel Petchell, Porsche Club of America Niagara Region, Inc., Porsche Club of America, Inc. and Watkins Glen International, Inc.
Nelson E. Schule, O'Shea, Reynolds & Cummings, Buffalo, New York, for defendant Mullane Auto Center, Inc. d/b/a Mullane Mitsubishi.
John M. Socolow, Reboul, MacMurray, Hewitt, Maynard & Kristol, New York City, for defendants Mitsubishi Motor Sales of America, Inc., and Mitsubishi Motors America, Inc.
This case was referred to Magistrate Judge Carol E. Heckman pursuant to 28 U.S.C. § 636(b)(1), on December 2, 1996. Defendants Cox, Petchell, Porsche Clubs, and Watkins Glen moved for summary judgment based on a waiver that plaintiff Lux signed. All defendants moved for summary judgment based on plaintiff's assumption of the risk. On May 19, 1998, Magistrate Judge Heckman filed a Report and Recommendation recommending that the Court grant summary judgment in favor of defendants Cox, Petchell, Porsche Clubs, and Watkins Glen based on the waiver, and that the Court deny summary judgment for defendants Mullane Mitsubishi ("Mullane") and Mitsubishi Motor Sales of America and Mitsubishi Motors America ("Mitsubishi"). Plaintiff filed objections to that part of the Report and Recommendation granting summary judgment in favor of defendants Cox, Petchell, Porsche Clubs, and Watkins Glen. Defendants Mullane and Mitsubishi objected to that part of the Report and Recommendation denying them summary judgment. Oral argument on the objections was held on August 21, 1998.
Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions and hearing argument from the parties, the Court adopts the proposed findings of the Report and Recommendation.
The Court writes separately, addressing one of several objections raised by the parties, to note its agreement with Magistrate Judge Heckman's finding that plaintiff was not a "user" of the racetrack as that term is used in § 5-326.1 The Court notes that throughout these proceedings, much emphasis has been placed on cases analyzing the application of § 5-326 to situations in which injuries have occurred at racetracks. See, e.g., Owen v. R.J.S. Safety Equipment, Inc., 79 N.Y.2d 967, 582 N.Y.S.2d 998, 591 N.E.2d 1184 (N.Y.1992); Gilkeson v. Five Mile Point Speedway, Inc., 232 A.D.2d 960, 648 N.Y.S.2d 844 (App.Div.1996); Smith v. Lebanon Valley Auto Racing, Inc., 167 A.D.2d 779, 563 N.Y.S.2d 335 (App.Div.1990). These cases, however, do not provide the best analogies to the present case, counterintuitive though this may seem, as the racetrack cases deal mostly either with spectators at racetracks, see, e.g., Gilkeson, supra; Gaskey v. Vollertsen, 110 A.D.2d 1066, 488 N.Y.S.2d 922 (App.Div.1985), or persons working on a pit crew, see, e.g., Lago v. Krollage, 157 A.D.2d 49, 554 N.Y.S.2d 633 (App.Div.1990), aff'd on other grounds, 78 N.Y.2d 95, 571 N.Y.S.2d 689, 575 N.E.2d 107 (N.Y.1991); Smith, supra. It appears to the Court that the most analogous cases to the present one are Baschuk v. Diver's Way Scuba, Inc., 209 A.D.2d 369, 618 N.Y.S.2d 428 (App.Div.1994), and Castellanos v. Nassau/Suffolk Dek Hockey, Inc., 232 A.D.2d 354, 648 N.Y.S.2d 143 (App.Div.1996).
The plaintiffs in those cases are more like the plaintiff in this case than are the plaintiffs in the other racetrack cases, as the Baschuk and Castellanos plaintiffs paid fees to actively participate in events held by the defendants in much the same way plaintiff here participated in the high speed driving event. In Baschuk, the Second Department found that § 5-326 did not apply. And, in Castellanos, the Second Department held a release similar to the one in this case enforceable without discussion of § 5-326. As these cases are the most analogous to the present case, the Court finds that the plaintiff was not a "user" as that term is used in § 5-326, barring that statute's application to the present case.
Accordingly, for the reasons set forth above and in Magistrate Judge Heckman's Report and Recommendation, the Court grants summary judgment in favor of defendants Cox, Petchell, Porsche Clubs, and Watkins Glen based on the waiver, and the Court denies summary judgment for defendants Mullane Mitsubishi ("Mullane") and Mitsubishi Motor Sales of America and Mitsubishi Motors America ("Mitsubishi").
The case is referred back to the Magistrate Judge for further proceedings.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION AND DECISION AND ORDER
This matter was referred to the undersigned by Hon. Richard J. Arcara, to hear and report, in accordance with 28 U.S.C. § 636(b). All defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, and defendants Petchell, Porsche Club of America Niagara Region, Inc., Porsche Club of America, Inc. ("PCA") and Watkins Glen International, Inc. ("Watkins Glen") have moved for leave to amend their answers to assert the affirmative defense of "release." For the following reasons, it is recommended that the summary judgment motions of defendants Cox, Petchell, PCA and Watkins Glen be granted, and the summary judgment motions of defendants Mullane Auto Center, Inc., d/b/a Mullane Mitsubishi ("Mullane"), Mitsubishi Motor Sales of America, Inc. and Mitsubishi Motors America, Inc. ("Mitsubishi") be denied. The motion of defendants Petchell, PCA and Watkins Glen for leave to amend their answer is granted.
On March 12, 1992, plaintiffs brought an action in New York State Supreme Court against defendants Cox, Petchell and PCA seeking damages for personal injuries, loss of consortium and loss of property as a result of a collision between an automobile driven by plaintiff Leslie ("Mimi") Lux, and an automobile driven by defendant Barbara Cox. The collision took place on June 11, 1991, at the Watkins Glen International Race Course in Watkins Glen, New York, during a "Drivers' School" program sponsored by PCA. At the time of the collision, defendant Daniel Petchell was acting as Ms. Cox's driving instructor, and was seated in the passenger seat of Ms. Cox's car (see "General Pleadings Chronology," Ex. 1).
Subsequently, on May 18, 1993, plaintiffs commenced a second action in state court against Watkins Glen, Mullane, and Mitsubishi for negligence based on the same June 11, 1991 collision (id., Ex. 4). Plaintiffs also sued Mullane and Mitsubishi under theories of products liability, strict liability and breach of warranty (id.). The two actions were consolidated by order of Hon. Norman E. Joslin, dated October 8, 1993 (id., Ex. 10).
On May 10, 1996, after substantial discovery had taken place in the consolidated state court action, defendant Cox filed in the United States Bankruptcy Court for the Southern District of California a petition for bankruptcy pursuant to Chapter 7 of the Bankruptcy Code, 11 U.S.C. § 101 et seq. On July 26, 1996, upon notice filed by Mitsubishi, the case was removed to this court pursuant to 28 U.S.C. § 1452(a).1
The following facts are not in dispute. Both plaintiffs participated in PCA's 1991 Driver's School at Watkins Glen, as did defendant Cox. Plaintiff Leslie Lux indicated on her application that she had "Extensive high speed Driver's School Experience," having participated in 8 events, 4 of which were held at Watkins Glen (Ex. Q, attached to Item 10). The fee for the two-day program was $150.00 (id.).
The program participants were required to sign a document entitled "Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement" (the "Agreement") (id., Ex. X). Ms. Lux and Ms. Cox signed the Agreement2 on both days of the event, June 10 and 11, 1991. The Agreement provided:
IN CONSIDERATION of being permitted to compete, officiate, observe, work for, or participate in the EVENT(S) ..., EACH OF THE UNDERSIGNED, for himself, his personal representatives, heirs and next of kin:
* * * * * *
2. HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the promoters, participants, racing associations, sanctioning organizations or any subdivision thereof, track operators, track owners, officials, car owners, drivers, pit crews, rescue personnel, any persons in any RESTRICTED AREA, promoters, sponsors, advertisers, owners and lessees of premises used to conduct the EVENT(S), premises and event inspectors, surveyors, underwriters, consultants and others who give recommendations or directions, or instructions or engage in risk evaluation or loss control activities regarding the premises or EVENT(S) and each of them, their directors, officers, agents, and employees, all for the purposes herein referred to as "Releasees," FROM ALL LIABILITY TO THE UNDERSIGNED, his personal representatives, assigns, heirs, and next of kin FOR ANY AND ALL LOSS OR DAMAGE, AND ANY CLAIM OR DEMANDS THEREFORE ON ACCOUNT OF OR RELATED TO THE EVENT(S), WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE.
3. 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 arising out of or related to the EVENT(S) WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE.
4. HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE arising out of or related to the EVENT(S) whether...
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