Trainor v. Aztalan Cycle Club, Inc.

• Decision Date: 13 October 1988
• Docket Number: No. 87-1841,87-1841
• Citation: 147 Wis.2d 107,432 N.W.2d 626
• Parties: Kip TRAINOR, Plaintiff-Appellant, v. AZTALAN CYCLE CLUB, INC., American Motorcyclist Association, First State Insurance Company, Lexington Insurance Company, and Dane County, Defendants-Respondents. *
• Court: Wisconsin Court of Appeals

Page 626

432 N.W.2d 626

147 Wis.2d 107

Kip TRAINOR, Plaintiff-Appellant, v. AZTALAN CYCLE CLUB, INC., American Motorcyclist Association First State Insurance Company, Lexington Insurance Company, and Dane County, Defendants-Respondents. ^*

No. 87-1841.

Court of Appeals of Wisconsin.

Argued July 21, 1988.

Opinion Released Oct. 13, 1988.

Opinion Filed Oct. 13, 1988.

John A. Becker, argued, Hanson, Gasiorkiewicz & Becker, S.C., on brief, Racine, for plaintiff-appellant.

Thomas J. Arenz, argued, Charles H. Bohl, W. Timothy Steinle, and Frisch, Dudek and Slattery, Ltd., on brief, Milwaukee, for defendants-respondents.

Before GARTZKE, P.J., and DYKMAN and EICH, JJ.

EICH, Judge.

Kip Trainor, a motorcycle racer, was injured while participating in a "motocross" race sponsored by the respondents, Aztalan Cycle Club, Inc., and the American Motorcycle Association (AMA). He sued the club and the association (and their insurers) for damages, alleging that they were negligent in maintaining the racecourse. Aztalan and AMA moved for summary judgment dismissing the action on grounds that Trainor had executed releases prior to the race which relieved the race sponsors from any and all liability for negligence. The trial court granted the motion and Trainor appealed, claiming: (1) that the exculpatory agreement cannot release the sponsors' "gross" or "active" negligence; and (2) even if the agreements were valid against the club and the association, they did not release their insurers. We resolve both issues against Trainor and affirm the judgment.

The procedure used by both trial and appellate courts to determine motions for summary judgment is well-known and well-documented, State Bank of La Crosse v. Elsen, 128 Wis.2d 508, 511-12, 383 N.W.2d 916, 917-18 (Ct.App.1986), and we need not discuss its elements in detail. Applying that procedure to Trainor's case, we note first that his complaint states a cause of action for negligence against Aztalan and AMA. It alleges that both were negligent in maintaining the racecourse and in running the race on a track known to them to be dangerous to riders. We also believe the answer joins the issues, for it denies any negligence on Aztalan's or AMA's part and raises the releases as a defense to liability. We next look to the moving parties' affidavits to see whether they state a prima facie defense to the action.

The primary affidavit filed in support of Aztalan's and AMA's motions for summary judgment was a compilation of Trainor's deposition testimony which revealed the following facts. Trainor was an experienced motocross motorcycle racer. Motocross is an event in which motorcycles are driven over a hilly, curving dirt track containing several "jumps" that send motorcycles and riders flying through the air. According to Trainor, the racers' objective is to get around the track "as fast as you [can] without falling." He acknowledged that the sport carries a risk of injury. Indeed, Trainor himself had fallen nearly 100 times in his three-year racing career, sometimes suffering injuries in the process. Trainor was aware of the fact that the Aztalan track was "one of the most dangerous" in his experience. He also acknowledged that he was prepared to accept the risks of motocross racing--including the "possibility" of serious injury--because of his confidence in his skill as a racer.

Aztalan and AMA encouraged riders to personally inspect the track prior to the race, and Trainor did so. He thought that one or more of the "double jumps" were too steep and conveyed his feelings to one of Aztalan's officers. The officer replied, "Well, that's motocross," and declined to alter the course.

Trainor decided to race anyway and signed two releases, one for Aztalan and one for AMA. In the former, Trainor agreed to release and discharge Aztalan (and any cosponsor) "from any and all claims, actions, suits ... and demands of any nature ... arising from ... any accident, collision or other occurrence during or in connection with the operation of this event ... or in connection with the condition of the premises on which this event takes place." The document also acknowledged that Trainor had inspected the racecourse and that, in entering the race, he was "rel[ying] upon his own inspection and his own skill, judgment, and ability and not upon such safety precautions as may be taken by [the sponsors]." Finally, it provided that Trainor "assume[d] all risks of ... injury ... while upon the premises." The AMA release contains language of similar import.

Trainor had signed many such releases in his racing career, and he testified that he never read any of them before signing them--including the Aztalan and AMA releases for the race in which he was injured. He stated that he was aware that the purpose of the releases was to "keep [him] from suing" the race sponsors, but he assumed that if he were to be seriously injured in a race, he would still be able to "get some money out of Aztalan['s] insurance company."

We are satisfied that these facts establish a prima facie defense to Trainor's action. A prima facie case is made when "the affidavits supporting the motion ... state evidentiary facts which, unless controverted, would resolve all factual issues in the [moving party's] favor." Staples v. Young, 142 Wis.2d 194, 204, 418 N.W.2d 329, 332-33 (Ct.App.1987), petition for review granted. Aztalan's and AMA's affidavits do just that, for they establish that Trainor, knowing the condition of the track from his own inspection, signed releases absolving the race sponsors from any and all liability for injuries occurring in the race. We next look to the opposing party's affidavits to see whether they raise disputed issues of material fact. If they do, the procedure ends and the motion must be denied. If they do not, we proceed to decide the legal issues presented by the motion.

In opposition to the motions, Trainor filed his own affidavits, additional excerpts from his deposition testimony, and portions of a deposition of William Sheppard, Aztalan's president. Sheppard stated that Trainor had come to him before the race with a complaint that "some jumps were too peaking." Sheppard told Trainor that in his opinion the track was safe, and he stated that neither he nor anyone else made any alterations to the track prior to the race. Trainor testified in his deposition that he felt the "double jumps" were "too high," "too peaked off," and "too steep," and that he told Sheppard: "It sucks. The bumps are too peaked off.... Somebody is going to get hurt." Finally, Trainor's affidavit acknowledges that he never read the releases before signing them, but that he "always understood that if an accident occurred, ... one ... of the [sponsors] would have insurance to cover any injuries sustained."

The following day Trainor was injured during a pre-race practice lap when he fell going through one of the "double jumps," and this action followed. Trainor does not contend that the parties' affidavits raise any disputed factual issues, and we agree. Trainor concedes that he inspected the track, signed the releases and participated in the race, and Aztalan and AMA agree that they made no effort to alter the track surface after Trainor complained to them that the jumps were dangerous. The appeal concerns a single legal issue--the efficacy of the releases as to Aztalan, AMA and their insurers.

The essence of Trainor's argument is: (1) that Aztalan and AMA were negligent in failing to inspect and maintain the track and in sponsoring an event on a dangerous track; and (2) that such conduct constitutes "gross negligence and ... a wilful and reckless disregard of [his] rights...." Trainor acknowledges that "gross negligence" was abolished by the Wisconsin Supreme Court nearly thirty years ago. He maintains, however, that the "concept ... still applies" in certain areas--such as punitive damages--and he asks us to apply it here to defeat the releases. His argument is that because the releases seek to excuse what he defines as gross negligence--that is, acts which evidence "either a wilful intent to injur[e], or reckless and wanton disregard of the rights and safety of another person"--they are void as a matter of law on grounds of public policy. He cites three cases for the proposition: Discount Fabric House v. Wis. Tel. Co., 117 Wis.2d 587, 595, 345 N.W.2d 417, 421 (1984); Arnold v. Shawano County Agr. Society, 111 Wis.2d 203, 209, 330 N.W.2d 773, 777 (1983); and Merten v. Nathan, 108 Wis.2d 205, 212-13, 321 N.W.2d 173, 177-78 (1982).

Discount Fabric House and Merten both contain lengthy quotations from Restatement (Second) of Contracts, sec. 195 (1979), discussing various types of exculpatory contracts which courts have sometimes voided on public policy grounds. Examples include contracts exempting an employer from responsibility for employee injuries incurred in the course of employment, exempting one charged with a duty of public service from liability for breach of that duty, and exempting a party from liability for "harm caused intentionally or recklessly." Discount Fabric House, 117 Wis.2d at 595, 345 N.W.2d at 421; Merten, 108 Wis.2d at 212, 321 N.W.2d at 177. Arnold does no more than briefly summarize the Restatement discussion. Id., 111 Wis.2d at 210-11, 330 N.W.2d at 777. It is the latter "rule" that Trainor advances in this case--that "a [contract] exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy." None of the three cited cases applied that rule, however.

In Discount Fabric House, a contract relieving the telephone company of the consequences of its negligence in preparing business telephone listings was invalidated not because the company's negligence was "gross," but because, in the court's view, publication of telephone listings is affected with a public interest, and, in addition, the parties were "not on equal...