Phibbs v. Ray's Chevrolet Corp.

• Decision Date: 03 July 1974
• Citation: 357 N.Y.S.2d 211,45 A.D.2d 897
• Parties: Darlene C. PHIBBS, as Administratrix of the Estate of James R. Phibbs, Deceased, et al., Respondents-Appellants, v. RAY'S CHEVROLET CORP. et al., Defendants, and Lebanon Valley Auto Racing Corporation, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 211

357 N.Y.S.2d 211

45 A.D.2d 897

Darlene C. PHIBBS, as Administratrix of the Estate of James R. Phibbs, Deceased, et al., Respondents-Appellants, v. RAY'S CHEVROLET CORP. et al., Defendants, and Lebanon Valley Auto Racing Corporation, Appellant-Respondent.

Supreme Court, Appellate Division, Third Department.

July 3, 1974.

Martin, Noonan, Hislop & Troue, Troy (Bernard Simon, Troy, of counsel), for respondent-appellant.

Ainsworth, Sullivan, Tracy & Knauf, Albany (Frank J. Warner, Jr., Albany, of counsel), for appellant-respondent.

Before HERLIHY, P.J., and GREENBLOTT, KANE, REYNOLDS and COOKE, JJ.

MEMORANDUM DECISION.

Cross-Appeals from an order of the Supreme Court at Special Term entered August 29, 1973 in Rensselaer County, which granted the motion of defendant Lebanon Valley Auto Racing Corp. (hereinafter Lebanon Valley) for reargument and, on reargument, adhered to an order, entered January 2, 1973, denying Lebanon Valley's motion for summary judgment dismissing the complaint and granting plaintiff's cross-motion to strike the third separate defense set forth in Lebanon Valley's answer.

Defendant Lebanon Valley owns and operates a raceway and drag strip upon which it conducts stock car automobile and motorcycle races. In the course of a trial run on his motorcycle in preparation for a race in which he was entered, plaintiff's intestate sustained fatal injuries when struck by an automobile owned by defendant Ray's Chevrolet Corp., and operated by defendant Barbara Bahorik on the trial strip area of the raceway.

The answer of defendant Lebanon Valley to plaintiff's complaint for wrongful death, conscious pain and suffering, and property damage contains, as a third separate and complete defense, the execution by plaintiff's intestate on three separate occasions (but not on the day of the accident) documents entitled 'Waiver and Release from Liability and Indemnity Agreement.' These agreements purported to exonerate defendant Lebanon Valley and certain others from any liability caused by their negligence arising from any automobile race on their premises. They also formed the basis for a motion for summary judgment by Lebanon Valley and prompted the cross-motion by plaintiff to dismiss the third separate defense. The court below denied the motion for summary judgment on the ground that the releases were not broad enough to cover motorcycle accidents and granted the cross-motion. Upon granting a motion for reargument, the court adhered to its original decision and this appeal ensued.

Although an order granting or denying a motion for reargument is not appealable (Denison v. B.P. Oil Corp., 39 A.D.2d 998, 333 N.Y.S.2d 799), since defendant Lebanon Valley submitted additional papers in support of its contentions, technically the motion was not one to re-argue, but one to renew. Accordingly, its appeal will stand.

The issues presented are (1) whether the use of the word 'automobile' in the Waiver and Release executed by plaintiff's intestate is broad enough to include a motorcycle; (2) whether the amended complaint alleges willful, wanton and gross negligence; and (3) whether a release absolving a defendant from willful, wanton and gross negligence is against public policy.

It is well established that while agreements intended to absolve a party from liability for its own negligence are closely scrutinized and strictly construed, they will be enforced by the courts absent some special legal relationship between the parties or some overriding public interest (Van Dyke Prods. v. Eastman Kodak Co., 12 N.Y.2d 301, 239 N.Y.S.2d 337, 189 N.E.2d 693; Ciofalo v. Vic Tanney Gyms, 10 N.Y.2d 294, 220 N.Y.S.2d 962, 177 N.E.2d 925). This rule has been consistently followed in cases of patrons signing agreements which would exempt amusement facilities, including auto racetracks, from liability for negligence (Church v. Seneca County Agric. 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 Corp., 36 A.D.2d 552, 317 N.Y.S.2d 228; Theroux v. Kendenburg Racing Assn., 50 Misc.2d 97, 269 N.Y.S.2d 789, affd. 28...