Rogers v. Black Hills Speedway, Inc., s. 11169--11171

• Decision Date: 16 April 1974
• Docket Number: Nos. 11169--11171,s. 11169--11171
• Citation: 88 S.D. 169,217 N.W.2d 14
• Parties: Patty Jean ROGERS, III, Plaintiff and Respondent, v. BLACK HILLS SPEEDWAY, INC., a corporation, Defendant and Third-Party Plaintiff and Appellant, v. James FERGUSON, d/b/a Rapid City Merchant Police & Ambulance Company, Third-Party Defendant and Respondent. Steven KNIGGE, Plaintiff and Respondent, v. BLACK HILLS SPEEDWAY, INC., a corporation, Defendant and Third-Party Plaintiff and Appellant, v. James FERGUSON, d/b/a Rapid City Merchant Police & Ambulance Company, Third-Party Defendant and Respondent. Diane KNIGGE, Plaintiff and Respondent, v. BLACK HILLS SPEEDWAY, INC., a corporation, Defendant and Third-Party Plaintiff and Appellant, v. James FERGUSON, d/b/a Rapid City Merchant Police & Ambulance Company, Third-Party Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 14

217 N.W.2d 14

88 S.D. 169

Patty Jean ROGERS, III, Plaintiff and Respondent, v. BLACK HILLS SPEEDWAY, INC., a corporation, Defendant and Third-Party Plaintiff and Appellant, v. James FERGUSON, d/b/a Rapid City Merchant Police & Ambulance

Company, Third-Party Defendant and Respondent.

Steven KNIGGE, Plaintiff and Respondent, v. BLACK HILLS SPEEDWAY, INC., a corporation, Defendant and Third-Party Plaintiff and Appellant, v. James FERGUSON, d/b/a Rapid City Merchant Police & Ambulance

Company, Third-Party Defendant and Respondent.

Diane KNIGGE, Plaintiff and Respondent, v. BLACK HILLS SPEEDWAY, INC., a corporation, Defendant and Third-Party Plaintiff and Appellant, v. James FERGUSON, d/b/a Rapid City Merchant Police & Ambulance

Company, Third-Party Defendant and Respondent.

Nos. 11169--11171.

Supreme Court of South Dakota.

April 16, 1974.

Rehearing Denied May 16, 1974.

Franklin J. Wallahan and Laurence J. Zastrow of Hanley, Wallahan, Murray & Zastrow, Rapid City, for appellant, Black Hills Speedway, Inc.

Curtis D. Ireland of Whiting, Lynn, Jackson, Shultz, Ireland & Lebrun, Rapid City, for respondents, Knigge, Knigge and Rogers.

Thomas E. Simmons of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for respondent, Ferguson.

DUNN, Justice.

Plaintiffs Diane Knigge, Steven Knigge and Patty Jean Rogers brought separate actions against the Black Hills Speedway, Inc., and were awarded judgments after a jury trial; Speedway has appealed from each of these judgments. As the appeals in the three actions involve common questions of fact and law, the cases have been, by stipulation and by order of this Court, consolidated for all purposes of appeal.

All three actions arose out of an accident which occurred on July 24, 1970 at the stock car racetrack owned and operated by Black Hills Speedway, Inc., hereafter referred to as Speedway. The track, located east of Rapid City, is a one-half mile, banked, oval racetrack used primarily for stock car racing, and open to the public for admission upon payment of a fee. On the west side of the track was a grandstand area capable of holding 2500 people, protected by a concrete wall and a 12-foot wheel fence. On the night in question, the crowd was estimated in the neighborhood of 3700 people, so that approximately 1200 of the people who purchased tickets had to be accommodated on the east side of the track. On the east side there was a wheel fence approximately 5 feet high at its beginning, going to 10 feet high and ultimately to 15 feet in front of the concession stand. Before each race night, and including the night of the accident portable benches were systematically lined up in rows behind this 15-foot wheel fence on the east side. Almost as systematically, and this from the testimony of Speedway employees only and including the owner, Mr. Davis, the benches were carried to points of vantage all along the east side of the track every evening for better viewing of the races. A consensus of the testimony produced by Speedway's witnesses would be that no great effort was made by the management to dissuade the spectators so long as they stayed out of the so-called restricted areas and stayed a reasonable distance (five or six feet) from the wheel fence. The particular area involved here, hereinafter referred to as the 'designated area', is a short grass area behind the fence at Curve No. 2. This is not to be confused with a larger restricted 'long grass' area at Curve No. 2, which was fenced off and where no spectators were allowed. The designated area was behind the fence and was completely accessible to spectators as there was no fence or other obstruction, and no signs that it was a restricted area, or warning of danger in this area. Mr. Davis agreed that this area had been occupied by spectators every race night throughout the racing season, although he stated that whenever he noticed people in the area, he had ordered them moved out 'but they came right back in'. The Rapid City Merchant Police & Ambulance Co., hereafter referred to as Merchant Police, in charge of security, testified that it had no instructions from Mr. Davis to keep people out of the designated area on Curve No. 2, but only out of the restricted long grass area on this curve.

On the last (Feature) race of the evening, a car came into Curve No. 2, ran up over the bank, through the wheel fence and into the spectators in this designated area, causing the injuries complained of in these lawsuits. Speedway in each case sought indemnity or contribution from the Merchant Police in a third-party complaint. The third-party complaint alleged that the Merchant Police had entered into an oral contract with Speedway wherein for a valuable consideration the Merchant Police had undertaken the duties of policing the racetrack and keeping spectators out of dangerous areas, and that the Merchant Police had breached that duty by permitting the plaintiffs in this designated area where the accident occurred; that because of this breach of contract and negligent performance of its duties, the Merchant Police was legally obligated to indemnify Speedway and hold it harmless from any damages Speedway was required to pay to the plaintiffs; and in addition that if Speedway was guilty of any negligence, the negligence of the Merchant Police was disproportionate to that of Speedway and contribution was sought from the Merchant Police. After all of the evidence was in, the third-party complaint for indemnity and contribution was dismissed by the trial court.

Speedway's first assignment of error is directed to the dismissal of the third-party complaint against the Merchant Police.

On the question of indemnity the principles of law are set out in Degen v. Bayman, 86 S.D. 598, 200 N.W.2d 134:

"Accordingly, it is generally held that a person who, without fault on his own part, has been compelled to pay damages is entitled to recover indemnity where, as between the parties to the indemnity action, the defendant is primarily liable while the plaintiff is only secondarily liable--that is, where the plaintiff is only technically or constructively liable to the injured party, or where his liability was based on a legal or contractual relationship with the defendant. In other words, a joint tortfeasor may recover indemnity where he has only an imputed or vicarious liability for damage caused by the other tortfeasor." 41 Am.Jur.2d, Indemnity, § 20.

In discussing situations where a joint tortfeasor was actively negligent the Degen case went on to state:

'An act of omission as well as one of commission on the part of a joint tortfeasor contributing to the injury may constitute active negligence precluding his recovery of indemnity where he is under an affirmative duty to act. Bernstein v. El Mar Painting & Decorating Co., 13 N.Y.2d 1053, 245 N.Y.S.2d 772, 195 N.E.2d 456, and 41 Am.Jur.2d, Indemnity, § 21.

'If a person seeking indemnity personally participates in an affirmative act of negligence, or is physically connected with an act of omission by knowledge or acquiescence in it on his part, or fails to perform some duty in connection with the omission which he has undertaken, he is deprived of the right of indemnity. Cahill Brothers, Inc. v. Clementina Company, 208 Cal.App.2d 367, 25 Cal.Rptr. 301; Pearson Ford Company v. Ford Motor Company, 273 Cal.App.2d 269, 78 Cal.Rptr. 279.'

In the light of these principles, we shall examine the negligence of Speedway, if any, considering only the testimony of the officers and employees of the Speedway corporation. 4 Am.Jur.2d, Amusements and Exhibitions, § 78, sets out the standards for the owner or operator of an automobile racetrack:

'The owner or operator of an automobile racetrack is not an insurer of the safety of his patrons, but he is charged with a duty to exercise reasonable care under the circumstances to see that his premises are reasonably safe for spectators, such care being commensurate with the known or reasonably foreseeable dangers incident to racing motor vehicles at high speeds. This duty includes the erection of such fences or other protective devices between the track and the places assigned to spectators as will afford them reasonable protection. Liability may also be predicated upon improper construction or maintenance of the track, * * *.'

George Davis, owner of Speedway, testified as a veteran racetrack owner, that he was fully aware of the danger at Curve No. 2 to any spectators sitting in the designated area. Thus the dangers inherent in Curve No. 2 to spectators in the designated area were foreseeable to the owner and operator of the track.

With this knowledge of the danger at Curve No. 2 to spectators in the designated area, he did not erect a fence or protective device; he did not erect signs advising spectators to stay out of the area; or signs even warning of the danger on Curve No. 2 in this area.

With full knowledge of the dangers at Curve No. 2 to spectators in the designated area, people were permitted to sit in this area race night after race night with only occasional warnings from the loud speaker to 'move back' or to 'keep away from the fences'. This admitted negligence on the part of Speedway would deprive it of the right of indemnity. Clearly Speedway 'personally participated in an affirmative act of negligence', or was 'physically connected with an act of omission by knowledge or acquiescence in it on its part', and this admitted negligence was a proximate cause of the injuries here.

In addition to this, in order to support a complaint for either indemnity or contribution, there must be a showing of a breach of duty on the part of the Merchant Police. The oral contract is a little hazy as to the Merchant Police's duties, but it is agreed that they were first to act as parking attendants for automobiles in assigning parking areas until the race started; and again once the last race was completed. They were to control the drinking and...