Trumbower v. Sports Car Club of America, Inc.

• Decision Date: 12 August 1976
• Docket Number: No. CIV-76-0024-D.,CIV-76-0024-D.
• Parties: Joan TRUMBOWER, Plaintiff, v. SPORTS CAR CLUB OF AMERICA, INC., a Foreign Corporation, et al., Defendants.
• Court: U.S. District Court — Western District of Oklahoma

428 F. Supp. 1113

Joan TRUMBOWER, Plaintiff, v. SPORTS CAR CLUB OF AMERICA, INC., a Foreign Corporation, et al., Defendants.

No. CIV-76-0024-D.

United States District Court, W. D. Oklahoma.

August 12, 1976.

John C. Niemeyer, David W. Edmonds, Oklahoma City, Okl., for plaintiff.

Kenneth N. McKinney, Philip L. Savage, Oklahoma City, Okl., for defendants.

ORDER

DAUGHERTY, Chief Judge.

Plaintiff Joan Trumbower brings this action to recover for the allegedly wrongful death of Stanford Trumbower, deceased. Plaintiff alleges that on and prior to July 6, 1974, the Defendants jointly sponsored an automobile racing event known as the Ponca City Grand Prix. Plaintiff's deceased entered this event and was fatally injured in the sixth race when his vehicle collided with a tree branch which extended into the track from a cedar tree growing on the left side of the track. Plaintiff charges Defendants with numerous counts of negligence in failing to protect her deceased from the hazard presented by the aforementioned tree branch.

Defendants have filed herein a joint Motion for Summary Judgment on the basis of two releases of liability signed by Plaintiff's deceased prior to entering into the aforementioned race. The subject releases, which are identified by affidavit, read in part:

"IN CONSIDERATION of being permitted (1) in racing events to enter for any purpose the RESTRICTED AREA ** each of the Undersigned, for himself and personal representatives, heirs, and next of kin:

HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the Sports Car Club of America, Inc., SCCA Regions, their officers and members; officials, car owners, drivers, pit crews, participants, persons in the Restricted Area, promoters, sponsors, advertisers, owners and lessees of the premises used to conduct the event, and each of them, their officers and employees, all for the 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 damage 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 in or upon the Restricted Area, and/or competing, officiating in, working or for any purpose participating in such event;

HEREBY AGREES TO INDEMNIFY AND SAVE AND HOLD HARMLESS the Releasees and each of them from any loss, liability, damage, or cost they may incur due to the presence of the Undersigned in or upon the Restricted Area and whether caused by the negligence of the Releasees or otherwise; and HEREBY ASSUMES FULL RESPONSIBILITY FOR AND RISK of bodily injury, death or property damage due to negligence of Releasees or otherwise while in or upon the Restricted Area, and/or while competing, officiating in, working or for any purpose participating in such event; Each of the Undersigned expressly agrees that the foregoing Release, Waiver, and Indemnity agreement is intended to be as broad and inclusive as is permitted by the law of the state in which the event is conducted and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect;

I, THE UNDERSIGNED, BEING OF LAWFUL AGE, IN CONSIDERATION OF MY BEING PERMITTED TO PARTICIPATE IN, VIEW, AND/OR ATTEND IN ANY CAPACITY WHATSOEVER THE NATIONAL RACE MENTIONED ABOVE, OR IN ANY ACTIVITIES CONNECTED WITH SUCH RACE, DO FOR MYSELF, MY HEIRS, EXECUTORS, ADMINISTRATORS AND ASSIGNS, HEREBY RELEASE, AND REMISF sic AND FOREVER DISCHARGE THE OKLAHOMA REGION, SPORTS CAR CLUB OF AMERICA, INC., THE AMERICAN BUSINESS CLUB OF PONCA CITY, THE CITY OF PONCA CITY, AND ALL OTHER PARTICIPANTS AND/OR/ANY INDIVIDUAL, GROUP, CORPORATION, OR GROUP SPONSORING SUCH RACES, HIS/HER/THEIR HEIRS, ADMINISTRATORS AND EXECUTORS OF AND FROM ANY AND EVERY CLAIM, DEMAND, ACTION OR RIGHT OF ACTION, OF WHATSOEVER KIND OF NATURE, EITHER IN LAW OR IN EQUITY ARISING FROM OR BY REASON OF ANY BODILY INJURY OR PERSONAL INJURIES, KNOWN OR UNKNOWN, DEATH AND/OR PROPERTY DAMAGE RESULTING OR TO RESULT FROM ANY ACCIDENT WHICH MAY OCCUR AS A RESULT OF PARTICIPATION IN OR ATTENDANCE AT SUCH NATIONAL RACE, OR ANY ACTIVITIES IN CONNECTION WITH SUCH RACE, ON THE DATES MENTIONED ABOVE, WHETHER BY NEGLIGENCE OR NOT. I FURTHER RELEASE ALL OFFICIALS AND PROFESSIONAL PERSONNEL FROM ANY CLAIM WHATSOEVER ON ACCOUT sic OF FIRST AID, TREATMENT OR SERVICE RENDERED ME DURING THIS EVENT. THIS RELEASE CONTAINS THE ENTIRE AGREEMENT BETWEEN PARTIES HERETO AND THE TERMS OF THE RELEASE ARE CONTRACTUAL AND NOT A MERE RECITAL. I FURTHER STATE THAT I HAVE CAREFULLY READ THE FOREGOING RELEASE AND KNOW THE CONTENT THEREOF AND I SIGN AS MY OWN FREE ACT."

Plaintiff opposes Defendants' Motion for Summary Judgment on the grounds that the subject releases are void as being violative of the public policy of the State of Oklahoma and that exculpatory contracts are prohibited by the Constitution of the State of Oklahoma in death cases. Plaintiff's contentions will be considered in reverse order.

In support of her constitutional argument Plaintiff relies on Sections 7 and 8 of Article 23 of the Constitution of the State of Oklahoma, which reads in pertinent part:

"The right of action to recover damages for injuries resulting in death shall never be abrogated ***"

and

"Any provision of a contract, express or implied, made by any person, by which any of the benefits of this Constitution is sought to be waived, shall be null and void."

Plaintiff's reliance is misplaced. It is well settled that the former section means that the right of action to recover damages for injuries resulting in death shall never be abrogated by the legislature. In F. W. Woolworth Co. v. Todd, 204 Okl. 532, 231 P.2d 681 (1951) the Court stated:

"Section 7 of Article 23 of the constitution which plaintiff asserts the release violates, provides: `The right of action to recover damages for injuries resulting in death shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitations.'

"The words `shall never be abrogated' as there used, mean: Shall never be annulled or repealed by an authoritative act, that is, shall never be withdrawn or taken away by the authority which bestowed it, that is, the legislative act, or other legislative authority."

In Roberts v. Merrill, 386 P.2d 780 (Okl. 1963) the Court stated:

"In its original form, Art. 23, Sec. 7, unmistakably comprises two distinct concepts, both equally categorical and absolute in their terms — protection against legislative abrogation of the right of action for injuries resulting in death and interdiction of any statutory limitation upon the amount recoverable in that class of actions. While the 1950 amendment did qualify the latter inhibition, it left the former intact and unaffected."

In view of the foregoing the Court has no difficulty in concluding that Section 7 of Article 23 of the Oklahoma Constitution does not prohibit private contracts excusing a party from his own acts of negligence.

It is equally clear that the public policy of the State of Oklahoma does not, in all cases, prohibit exculpatory contracts. In Gulf, C. & S.F.Ry. Co. v. Anderson, 120 Okl. 60, 250 P. 500 (1926) the Court stated:

"We would not hold that a contract governing and exempting liability for future damages resulting from the negligence of the defendant might not be entered into ***"

In Mohawk Drilling Company v. McCullough Tool Company, 271 F.2d 627 (Tenth Cir. 1959) the Court quoted a portion of the opinion of the Supreme Court of Oklahoma in Sinclair Refining Co. v. Lang which had appeared in the Oklahoma Bar Association Journal but which opinion was withdrawn by the Court when ...