Tope v. Waterford Hills Road Racing Corp.

Decision Date06 March 1978
Docket NumberDocket No. 30719
Citation81 Mich.App. 591,265 N.W.2d 761
PartiesDonald TOPE, Administrator of the Estate of Harry Warren Tope, Deceased, Plaintiff-Appellant, v. WATERFORD HILLS ROAD RACING CORPORATION, a Michigan Corporation, Defendant-Appellee.
CourtCourt of Appeal of Michigan — District of US

Goodman, Eden, Millender, Goodman & Bedrosian by James A. Tuck, Detroit, for defendant-appellee.

Michael F. Schmidt, Detroit, Jeffrey A. Heldt, Rochester, for plaintiff-appellant.

Before BEASLEY, P. J., and D. E. HOLBROOK, Jr., and KELLY, JJ.

KELLY, Judge.

Plaintiff appeals from an order for accelerated judgment of no cause of action granted the defendant on October 15, 1976, in Wayne County Circuit Court. Plaintiff is the administrator of the estate of Harry Warren Tope, a professional race car driver. Tope sustained fatal injuries during the Wide Track II road race held on July 5, 1975, at Pontiac, Michigan. The race was sponsored by the City of Pontiac and the defendant, Waterford Hills Road Commission, Inc., a nonprofit Michigan Corporation.

Tope had won the inaugural wide track race the year before his fatal accident. He had entered the 1975 race to promote his business, Tope Racing Enterprises, which was his source of livelihood. As a condition to participating in the race, all entrants paid $50 and signed an entry form containing an assumption of the risk, release, discharge of liability, and a separate form entitled "Waiver and Release from Liability and Indemnity Agreement".

Tope was killed when his race car collided with a guard rail during the race. The trial court noted:

"Tope's race car was a needle-nose design; the guardrail was of a single-beam design. When Tope's car collided with the guardrail, the single beam slid up the top of the car until it impacted with Tope's head."

Plaintiff administrator filed the instant action alleging that defendant's negligence in the design and layout of the race course and in the management of the race resulted in Tope's death. Defendant filed a motion for accelerated judgment based upon:

"(1) (A) purported contractual assumption of risk and release of Defendant contained in the entry blank signed by Tope prior to the race;

(2) a purported contractual assumption of risk and release of Defendant contained in the Waiver and Release from Liability and Indemnity Agreement, signed by Tope and other drivers prior to the race; and

(3) contributory negligence which Defendant claims Tope was guilty of as a matter of law." Trial court's opinion, p. 1.

The motion was granted.

Plaintiff raises one issue on appeal contending that the contract provision which exempts an auto racing club from liability for personal injuries to the auto racers caused by the club's negligence is unenforceable as being contrary to public policy.

The relevant contractual terms, pertaining to the assumption of risk provision and the release and waiver, provide:

"The entrant, in signing this agreement and in consideration of the right to use the race course at his own risk and thereby releases and discharges the Waterford Hills Road Racing, Inc. and The City of Pontiac, the organizers and race officials, together with their successors, assigns, officers, agents, employees, from all liability for injuries to person, property or reputation, suffered by him or his employees as a result of the race or races or events contemplated under this entry blank, or practice or preparation therefor, and whether caused by any condition of the road course or grounds or the conduct of any officer, agent, representative, or employee of the Waterford Hills Road Racing, Inc., or the City of Pontiac and the organizers and race officials, or conduct of said races. It is further agreed that the entrant, in signing this entry form has studied the rules and regulations in the entry form, and agrees to abide thereby. He further agrees to ensure that all crew members and driver designated to drive the car are similarly acquainted with the aforementioned rules." Official Entry Blank.

"IN CONSIDERATION of being permitted to enter for any purpose of the RESTRICTED AREA (herein defined as the area to which admission for the general public is prohibited, including but not limited to the pit area, racing surface and infield, including walkways, concessions and other appurtenances therein) each of the Undersigned, for himself and personal representatives, assigns, heirs and next of kin:

1. HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the Promoter, Racing Association, Track Operator, Track Owner, Landowner, and each of them, their officers, and employees, all for purposes herein referred to as RELEASEES, from all liability to the Undersigned, his personal representatives, assigns, heirs and next of kin, for 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 Releasees or otherwise while the Undersigned is upon the Restricted Area, and

"Each of the Undersigned warrants the following statements are true and correct and understands that the Releasees have relied on them in entering into the foregoing Release, Waiver and Indemnity Agreement and in giving the Undersigned permission to enter the Restricted Area:

"1. No oral representations, statements or inducements apart from the foregoing written agreement have been made.

"2. He assumes full responsibility and risk of bodily injury, death or property damage due to negligence of Releasees or otherwise upon entering the Restricted Area.

"3. If a driver, he has a valid driver's license from the state of his residence.

"4. That he is an independent contractor and assumes and takes all responsibility for all charges, premiums and taxes, if any, payable on any funds he may receive as a result of his activities, including without limiting the generality of the foregoing, social security, unemployment, income and withholding taxes, and Workmen's Compensation insurance.

"5. HE HAS READ AND VOLUNTARILY SIGNS THIS RELEASE AND WAIVER OF ALL LIABILITY OF INDEMNITY AGREEMENT." Waiver and Release from Liability and Indemnity Agreement (hereafter "Waiver and Release").

The waiver and release expressly exempts defendant from liability for damages to the plaintiff caused by defendant's negligence. Construing the indemnity clause strictly against defendant we find the language unequivocal in exempting defendant from liability for damages sustained by the plaintiff because of defendant's own negligence. See Klann v. Hess Cartage Co., 50 Mich.App. 703, 705-706, 214 N.W.2d 63 (1973). We are asked to determine whether or not the indemnity clause is contrary to public policy. The precise definition of "public policy" has recently been set forth by another panel of this Court quoting the language found in Skutt v. Grand Rapids, 275 Mich. 258, 263-265, 266 N.W. 344 (1936); Murphy v. Seed-Roberts Agency, Inc., 79 Mich.App. 1, 13, 261 N.W.2d 198 (1977).

A summary of the definition establishes that "public policy" evolves into constitutional provisions, statutes, and judicial decisions, " '(m)ore often * * * it abides only in the customs and conventions of the people, in their clear consciousness and conviction of what is naturally and inherently just and right between man and man' ". The definition is further qualified by the Court in the following passage:

" 'When a course of conduct is cruel or shocking to the average man's conception of justice, such course of conduct must be held to be obviously contrary to public policy, though such policy has never been so written in the bond, whether it be Constitution, statute or decree of court.' "

There is no constitutional or statutory provision, or court decision which specifically declares the instant release clause, as it relates to auto racing, contrary to public policy. Query : Is it "cruel or shocking to the average man's conception of justice" for a race promoter to insulate itself from liability for its own negligence? We are dealing with a fairly narrow segment of the public participating in a relatively dangerous sporting activity. The general public as a whole is minimally affected.

We find the contract provisions are not inimical to the public interest. Cf. Gray v. Galesburg, 71 Mich.App. 161, 166, 247 N.W.2d 338 (1976). Private interests are primarily at stake. See Winterstein v. Wilcom, 16 Md.App. 130, 293 A.2d 821, 826 (1972). The public interest would not be served by striking down a contract provision between private parties voluntarily assumed and historically sanctioned in Michigan in other factual situations. Mann v. Pere Marquette R. Co., 135 Mich. 210, 97 N.W. 721 (1903); Blazic v. Ford Motor Co., 15 Mich.App. 377, 380, 166 N.W.2d 636 (1968), lv. den., 382 Mich. 758 (1969); Shelby Mutual Insurance Co. v. Grand Rapids, 6 Mich.App. 95, 148 N.W.2d 260 (1967); United States Fibres, Inc. v. Proctor & Schwartz, Inc., 358 F.Supp. 449 (E.D.Mich., 1972).

In Gore v. Tri-County Raceway, Inc., 407 F.Supp. 489, 492 (M.D.Ala., 1974), wherein a widow of a participant in an auto race brought suit against the operator of the race track for damages for her husband's death, the court, reviewing a similar release clause, stated:

"If these agreements, voluntarily entered into, were not upheld, the effect would be to increase the liability of those organizing or sponsoring such events to such an extent that no one would be willing to undertake to sponsor a sporting event. Clearly, this would not be in the public interest." (Emphasis added).

The Gore cour...

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