Smith v. Lebanon Valley Auto Racing, Inc.

• Decision Date: 29 November 1990
• Citation: 167 A.D.2d 779,563 N.Y.S.2d 335
• Parties: Joseph A. SMITH, Respondent, v. LEBANON VALLEY AUTO RACING, INC., Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 335

563 N.Y.S.2d 335

167 A.D.2d 779

Joseph A. SMITH, Respondent, v. LEBANON VALLEY AUTO RACING, INC., Appellant, et al., Defendants.

Supreme Court, Appellate Division Third Department.

Nov. 29, 1990.

Andrew S. Fusco, P.C., Auburn, for appellant.

Connor, Curran, Connor & Schram (Paul M. Freeman, of counsel), Hudson, for respondent.

Before KANE, J.P., and WEISS, MIKOLL, YESAWICH and MERCURE, JJ.

YESAWICH, Justice.

Appeal from an order of the Supreme Court (Cobb, J.), entered November 8, 1989 in Columbia County, which, inter alia, granted plaintiff's motion to dismiss the third and fourth affirmative defenses in the answer of defendant Lebanon Valley Auto Racing, Inc.

On the evening of April 25, 1981, plaintiff was severely injured at the speedway operated by defendant Lebanon Valley Auto Racing, Inc. (hereinafter Lebanon Valley). Prior to his admission to the speedway that night, plaintiff had paid a $10 fee for a license to enable him to apply for access to the infield pit area. Plaintiff indicated on the license application that he was a member of the pit crew for car No. 111. After plaintiff received the requisite license, he paid an additional $5 at the pit gate for a pit pass. To obtain the pass, plaintiff signed a "VOLUNTARY WAIVER AND RELEASE FROM LIABILITY AND INDEMNITY AGREEMENT", which stated that he accepted all risks connected with entry into the restricted area and/or participation in any racing event.

During the final race of the evening, racing cars operated by defendants Tom Corellis and Mert Hulbert collided. The Hulbert vehicle left the raceway and hit plaintiff, seriously injuring him. Thereafter, plaintiff commenced this personal injury action against Lebanon Valley, Corellis and Hulbert. Plaintiff's motion to strike the affirmative defenses of release and indemnification contained in defendants' answers on the ground that these defenses are violative of public policy was granted as to Lebanon Valley and denied as to the remaining defendants. Lebanon Valley has appealed. Its main argument on appeal is that plaintiff was not a "user" of a facility of the type contemplated by General Obligations Law § 5-326. There is more than ample authority to the effect that an automobile raceway is an establishment within the meaning of this statute and that a release purporting to exempt the owner or operator of such a facility from liability due to negligence contravenes public policy and is void (see, e.g., Lago v. Krollage, 157 A.D.2d 49, 554 N.Y.S.2d 633; Green v. WLS Promotions, 132 A.D.2d 521, 517 N.Y.S.2d 537, lv. dismissed 70 N.Y.2d 951, 524 N.Y.S.2d 678, 519 N.E.2d 624; Miranda v. Hampton Auto Raceway, 130 A.D.2d 558, 515 N.Y.S.2d 291; Gaskey v. Vollertsen, 110 A.D.2d 1066, 488 N.Y.S.2d 922; Beardslee v. Blomberg, 70 A.D.2d 732, 416 N.Y.S.2d 855; Johnson v. Thruway Speedways, 63 A.D.2d 204, 407 N.Y.S.2d 81). In view of the fact that nothing in the legislative history of the statute supports excluding these facilities (see, Green v. WLS Promotions, supra, 132 A.D.2d at 522, 517 N.Y.S.2d 537), we find no reason to entertain Lebanon Valley's suggestion that the correctness of these holdings be reexamined.

More problematic, however, is whether the statute's protection extends to the activity in which plaintiff was engaged at the time of his injury, in short, whether plaintiff was then a "user" (see, Howell v. Dundee Fair Assn., 73 N.Y.2d 804, 806, 537 N.Y.S.2d 27, 533 N.E.2d 1056; Meier v. Ma-Do Bars, 106 A.D.2d 143, 144, 484 N.Y.S.2d 719; cf., Beardslee v. Blomberg, supra, 70 A.D.2d at 733, 416 N.Y.S.2d 855). Here, there is no question that plaintiff paid a fee to gain access to the pit area, signed a release before entering the area and was injured while there. It is not at all clear, however,...