Plant v. Wilbur

• Decision Date: 09 July 2001
• Citation: 345 Ark. 487,47 S.W.3d 889
• Court: Arkansas Supreme Court

345 Ark. 487

47 S.W.3d 889

Robert L. PLANT v Gary WILBUR and Linda Wilbur d/b/a Northwest Arkansas Speedway

00-1116

SUPREME COURT OF ARKANSAS

July 9, 2001, Opinion Delivered

Mashburn & Taylor, by: Timothy L. Brooks, for appellant.

Kemp, Duckett, Spradley, Curry & Arnold, by: James M. Duckett, for appellees.

DONALD L. CORBIN, Justice. Appellant Robert L. Plant was injured by some flying debris while watching an auto race at the Northwest Arkansas Speedway. Plant sued Appellees Gary and Linda Wilbur, the owners and operators of the Speedway, alleging that his injuries resulted from their negligence. Appellees countered that Plant had signed an agreement releasing the Speedway from any liability, and therefore he could not maintain a cause of action against them. Appellees filed a motion for summary judgment based on the existence of the release, and the Benton County Circuit Court granted the motion, finding that the release was enforceable under Arkansas law. For reversal, Plant argues that the release is void as against public policy and, thus, the trial court erred in granting summary judgment. As this appeal presents an issue of first impression, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(b)(1). We affirm.

The record reveals that the Speedway is an oval-shaped dirt track located in Pea Ridge, that has been in operation since 1992. Plant was a member of a pit crew for one of the drivers who raced at the Speedway. He testified during his deposition that he believed that he had been frequenting the track since it opened, and that he believed that he had signed the release on at least twelve occasions prior to the day his accident occurred. On the night of the accident, Plant paid $ 15 in order to gain admission to an area of the racetrack, known as the pit. 1 Before entering the pit area, Plant signed a document entitled "Release and Waiver of Liability and Indemnity Agreement," as was required of anyone who wanted to enter the pit area. The release, which contains twelve signature lines, was prepared by North American Racing Insurance, Inc., and is commonly used at racetracks across the country. The release provides as follows:

IN CONSIDERATION of being permitted to enter for any purpose any RESTRICTED AREA (herein defined as including but not limited to the racing surface, pit areas, infield, burn out area, approach area, shut down area, and all walkways, concessions and other areas appurtenant to any area where any activity related to the event shall take place), or being permitted to compete, officiate, observe, work for, or for any purpose participate in any way in the event, EACH OF THE UNDERSIGNED, for himself, his personal representatives, heirs, and next of kin, acknowledges, agrees and represents that he has, or will immediately upon entering any of such restricted areas, and will continuously thereafter, inspect such restricted areas and all portions thereof which he enters and with which he comes in contact, and he does further warrant that his entry upon such restricted area or areas and his participation, if any, in the event constitutes an acknowledgment that he has inspected such restricted area and that he finds and accepts the same as being safe and reasonably suited for the purposes of his use, and he further agrees and warrants that if, at any time, he is in or about restricted areas and he feels anything to be unsafe, he will immediately advise the officials of such and will leave the restricted areas:

1. HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the promoter, participants, racing association, sanctioning organization or any subdivision thereof, track operator, track owner, officials, car owners, drivers, pit crews, any persons in any restricted area, promoters, sponsors, advertisers, owners and lessees of premises used to conduct the event and each of them, their officers 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 therefor on account of injury to the person or property or resulting in death of the undersigned, whether caused by the negligence of the releasees or otherwise while the undersigned is in or upon the restricted area, and/or, competing, officiating in, observing, working for, or for any purpose participating in the event.

2. 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 due to the presence of the undersigned in or upon the restricted area or in any way competing, officiating, observing, or working for, or for any purpose participating in the event and whether caused by the negligence of the releasees or otherwise.

3. HEREBY ASSUMES FULL RESPONSIBILITY FOR AND RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE due to the negligence of releasees or otherwise while in or upon the restricted area and/or while competing, officiating, observing, or working for or for any purpose participating in the event.

4. EACH OF THE UNDERSIGNED expressly acknowledges and agrees that the activities of the event are very dangerous and involve the risk of serious injury and/or death and/or property damage. EACH OF THE UNDERSIGNED further expressly agrees that the foregoing release, waiver, and indemnity agreement is intended to be as broad and inclusive as is permitted by the law of the Province or State in which the event is conducted and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect.

5. THE UNDERSIGNED HAS READ AND VOLUNTARILY SIGNS THE RELEASE AND WAIVER OF LIABILITY AND INDEMNITY AGREEMENT, and further agrees that no oral representations, statements or inducements apart from the foregoing written agreement have been made.

Sheldon England, an employee of North American, testified that this release is known as "participant legal coverage," and is required where a racetrack allows people into restricted areas, such as the pit area, because of the dangerous activities that take place in these areas.

On the evening of his accident, Plant was standing on a track compactor, located near the spot where the cars exit the track. While standing there, Plant was struck by a wheel and tire that became dislodged from one of the race cars. The wheel and tire went through and over the fencing that separated the track from the pit area. Plant sustained injuries to his neck, left shoulder, and left arm. Plant's left arm was eventually amputated, although it is not clear from the record before this court what led to this amputation or when it occurred. Plant testified in his deposition that the only time he was in the pit area was when his team's car was racing, otherwise he would watch the races from the grandstand area.

Plant filed a complaint against Appellees, alleging that Appellees were negligent in: (1) failing to provide adequate safety barriers between the racetrack and persons admitted into the pit area; (2) failing to properly maintain the existing fence between the racetrack and the pit area; and (3) failing to warn persons admitted to the pit area about dangers related to flying debris from race cars. In his complaint, Plant stated that he had accumulated medical expenses in excess of $ 45,000, and sought compensatory damages of $ 1,000,000. Appellees pled the affirmative defenses of waiver and release in response to the complaint, and also stated that they had paid $ 10,000 to Springdale Memorial Hospital in partial payment of Plant's medical bills.

Appellees, in turn, filed a motion for summary judgment, asserting that Plant could not maintain a cause of action against them because he had signed the release. Initially, the trial court denied the motion, but the trial court later granted Appellees' motion for reconsideration and conducted a hearing on the summary-judgment motion. During that hearing, the trial court ruled from the bench that the release was valid, and therefore, summary judgment was proper in this case. From that order, comes the instant appeal.

The appropriate standard of review to be employed when reviewing a grant of summary judgment was set forth by this court in Worth v. City of Rogers, 341 Ark. 12, 14 S.W.3d 471 (2000):

We have repeatedly held that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. George v. Jefferson Hosp. Ass'n, Inc., 337 Ark. 206, 987 S.W.2d 710 (1999); Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998);Pugh, 327 Ark. 577, 940 S.W.2d 445. Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. Wallace v. Broyles, 331 Ark. 58, 961 [345 Ark. 493] S.W.2d 712 (1998); Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997). After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable men might reach different conclusions from those undisputed facts. George, 337 Ark. 206, 987 S.W.2d 710.

Id. at 20, 14 S.W.3d at 475.

For reversal, Plant asserts that the trial court erred in granting summary judgment...