Theroux v. Kedenburg Racing Ass'n

• Citation: 269 N.Y.S.2d 789,50 Misc.2d 97
• Parties: Herman A. THEROUX, Jr., Plaintiff, v. KEDENBURG RACING ASSOCIATION, Inc., Defendant.
• Decision Date: 05 October 1965
• Court: United States State Supreme Court (New York)

Page 789

269 N.Y.S.2d 789

50 Misc.2d 97

Herman A. THEROUX, Jr., Plaintiff, v. KEDENBURG RACING ASSOCIATION, Inc., Defendant.

Supreme Court, Special Term, Suffolk County.

Oct. 5, 1965.

Jacob Heller, New York City, for plaintiff; David Herbert Schwartz, Rockville Centre, of counsel.

Victor J. Herwitz, New York City, for defendant.

JOHN P. COHALAN, Jr., Justice.

Defendant has brought on a motion for summary judgment pursuant to Rule 3212 CPLR based on a release executed by the plaintiff.

For the purpose of this motion, all the allegations in the complaint are deemed to be true, and to a marked degree are admitted (by failing to deny) in defendant's answer.

The factual background reveals that plaintiff, on August 17, 1963, was a race car driver participant in a stock car automobile race at the Freeport Stadium in Nassau County. This was the eighth time he had taken part in such races at this track.

Plaintiff's car and two others became involved in a collision during the course of the race and were immobilized on the traveled portion of the track, and to an unspecified partial degree, obstructed the free and uninhibited driving of the other participants.

Theroux suffered no hurt in this 3-car collision, but was injured in a subsequent one, as the cars continued to speed around the oval. On the third lap after the initial mishap one of them collided with plaintiff's immobilized car causing the serious injuries of which he now complains.

The employees of defendant had it within their power to flag down the other drivers and to stop the race by flashing a light or by actually semaphoring the operators to stop. This was not done and forms the basis for plaintiff's alleged cause of action.

It is his position that whereas he had assumed the risks ordinarily attendant upon such a race--such as the 3-car mishap mentioned above,--he had not assumed any risk of collision by reason of the narrowing of the traveled portion of the track.

In an affidavit submitted in opposition to the summary judgment motion, he stated: 'I could not get out of the car while the race continued and the remaining drivers sped around the track', thus implying that physically he was able to extricate himself from his damaged car and was not pinned within it.

It thus appears that he preferred the comparative safety of his vehicle to the hazard of obtaining absolute safety by crossing the track on foot.

He also stated that the failure of defendant to stop the race 'constituted gross and wanton disregard of an apparent danger to fail to use them'. Curiously the complaint charges defendant with ordinary negligence only.

The papers are silent as to the width of the track, the length of the laps and whether or not the track was banked. No mention is made either of the number of cars engaged in the subject race, although we may reasonably suppose that at least 5 took part--the three in the initial collision and 2 more to finish the race.

Theroux, to quote himself, was 'aware that automobile racing is a hazardous sport' and that when he 'agreed to compete' he 'assumed the ordinary risks which racing drivers accept.'

Further to quote him in part, 'If I had been injured in the first collision I could not complain. If my car had skidded out of control and crashed into a wall I would have to accept the consequences as within the risks assumed. But I never would have raced * * * if * * * given to understand that the standard and customary precautions of the sport were suspended and that we were participants not in a dangerous contest, but in a spectacle of slaughter for which the defendant charged admission from thousands of spectators'.

Turning to the defense, we are confronted with an instrument signed by plaintiff, at both top and bottom of which is the legend in boldface type 1/2 inch high 'THIS IS A RELEASE.' The text within it, which speaks both in praesenti and in futuro, contains as comprehensive a waiver and release from liability as one could imagine, excerpts of which follow:

'This agreement is signed for the purpose of fully and completely releasing, discharging and indemnifying from all liability as herein described, all of the parties mentioned as being released and indemnified hereby.'

'Now in consideration of receiving permission from KEDENBURG RACING ASSOCIATION, INC. to enter upon the premises commonly called FREEPORT MUNICIPAL STADIUM * * * the receipt of which is hereby acknowledged and in further consideration of receiving permission to practice, qualify or otherwise participate in any capacity in any automobile race or event held at said premises * * * each of the undersigned for himself * * * forever release * * * said KEDENBURG RACING ASSOCIATION, INC. * * * and also all agents, officers, assistants employees, servants and successors of said KEDENBURG RACING ASSOCIATION, INC. * * * during the entire year and at any and every automobile race * * * during said year, of and from any and all liability, claims, demands, actions, causes of action * * * which the undersigned may have, now has, or which may accrue in his favour in the future * * * which may arise out of injury or damage to his person * * * whether such injury or damage be known or unknown, present or future, by virtue of...