Valley Nat. Bank v. National Ass'n for Stock Car Auto Racing, Inc.

• Decision Date: 12 March 1987
• Docket Number: CA-CV,No. 2,2
• Citation: 736 P.2d 1186,153 Ariz. 374
• Parties: The VALLEY NATIONAL BANK, Conservator of the Estate of Martha Pray, an Adult Protected Person, and Jack Pray, Plaintiffs/Appellants, v. NATIONAL ASSOCIATION FOR STOCK CAR AUTO RACING, INC., aka Nascar, George Shotts and Oma Shotts, Jerry Hogan and Bette Hogan, Mel Bolas and Patricia Bolas, individually and as husbands and wives, and the Bop, Inc., Defendants/Appellees. 5918.
• Court: Arizona Court of Appeals

Page 1186

736 P.2d 1186

153 Ariz. 374

The VALLEY NATIONAL BANK, Conservator of the Estate of Martha Pray, an Adult Protected Person, and Jack Pray, Plaintiffs/Appellants, v. NATIONAL ASSOCIATION FOR STOCK CAR AUTO RACING, INC., aka Nascar, George Shotts and Oma Shotts, Jerry Hogan and Bette Hogan, Mel Bolas and Patricia Bolas, individually and as husbands and wives, and the Bop, Inc., Defendants/Appellees.

No. 2 CA-CV 5918.

Court of Appeals of Arizona,

Division 2, Department A.

March 12, 1987.

Review Denied May 5, 1987.

[153 Ariz. 375] Law Offices of Richard D. Grand by Silas H. Shultz and Michael F. Rollins, Tucson, for plaintiffs/appellants.

Bury, Moeller, Humphrey & O'Meara by David C. Bury, Tucson, for defendants/appellees.

OPINION

HOWARD, Presiding Judge.

This is an appeal from a general defense verdict in a personal injury case. We consider the facts in the light most favorable to the defendants. McFarlin v. Hall, 127 Ariz. 220, 619 P.2d 729 (1980).

The individual defendants are the incorporators of The BOP, Inc., a promoter of stock car races at Tucson International Raceway (T.I.R.). The Prays lived near Sierra Vista, Arizona, where Mr. Pray was employed at Fort Huachuca. He became acquainted with Brandon Rees, who also worked at Fort Huachuca and who raced at T.I.R. Mr. Rees suggested to Mr. Pray that the Prays should come to the Pima County Fairgrounds on September 15, 1984, to see the anniversary stock car races in which Rees was going to participate. Mr. Pray had extensive racing experience. He had been racing since 1946, he had been in hundreds of racetrack facilities including the pit areas, he was an experienced professional race car driver and had been a member of NASCAR. Martha Pray also had extensive experience at race tracks, although she was never a participant.

The Prays went to T.I.R. on September 15 to see the races. Although there was a grandstand for general spectators, Mr. Pray did not want to sit there. Instead, he wanted to be in the pit area in order to see his friend, Brandon Rees, and to be able to talk to him.

On this particular night, although several classes of cars were being raced, since one race was a NASCAR-sanctioned race, NASCAR rules governed the operation of the racetrack. One of these rules was that no spectators were to be allowed into the pit area.

The Prays went to the pit booth in order to buy a ticket to get into the pit area. The grandstand admission was $6, and the admission into the pit area was $10. The pit booth was a small room with three windows, one marked "free sheet," one "drivers," and one "pit crew." Prior to reaching the pit booth there was a table set up where every person who wanted to enter the pit booth area was required to sign a document entitled "Benefit Plan Registration--Release and Indemnity Agreement" (BP). Both Jack and Martha Pray signed one of these forms, which they then took with them while they waited in line at the pit booth window. The Prays went to the line for "drivers." There were about 30 or 40 people in line, and Mr. Pray had enough time to smoke a couple of cigarettes before he reached the booth.

Once the Prays reached the pit booth, the person at the window checked to see if the BP had been signed. They were not asked whether they were spectators, nor did they tell the lady at the booth that they were merely spectators. They were each given a copy of the BP and they were each required to sign two additional documents. One was a "Release of Liability" and the other a pit pass. The Prays would not have been allowed to enter the pit area had they not signed all three of the documents. Although spectators were not allowed into the pit area, it was the practice at the racetrack not to ask the persons coming up to the pit booth whether or not they were there simply as spectators. However, if spectators went up to the pit booth and told the operator that they were just spectators and wanted to go into the pit area, they would be told that they would have to sit in the grandstands.

As for the three documents which the Prays signed, the BP contains a medical benefit plan and a release and indemnity agreement. The release and indemnity agreement in the BP releases NASCAR, the race track promoters and NASCAR employees from any liability due to their negligence in consideration, inter alia, of being allowed into the speedway or raceway premises of any NASCAR-sanctioned event. Immediately below the line where the Prays signed the document, the following appears in large bold type: "THIS IS A RELEASE, REGISTRATION AND INDEMNITY AGREEMENT." Ostensibly, this BP is for the benefit of persons who have been licensed by NASCAR or have applied for a NASCAR license.

The Release of Liability is a long document which recites at the top in large bold type: "THIS IS A RELEASE OF LIABILITY." It is a competitor's permit that contains, in bold type, the same type of release from liability as was contained in the BP. The terms of the release are followed by signature blocks. The page on which the Prays signed contains, in large type, "THIS IS A RELEASE OF LIABILITY." This phrase is repeated three times on the page.

The pit pass also contains a release of liability. The terms of the release are on the bottom of the pit pass, which is detachable and is kept at the pit booth. The top part was given to the Prays to be displayed by them at all times when they were in the pit area.

After paying the $10 and signing the documents, the Prays entered the pit area, which was protected by a fence, including "Jersey barriers" ¹ where the area is adjacent to turn one. When the Prays entered the pit area, they set up two stools to watch the races near the hot dog stand. The area was elevated, and the Prays could easily watch the races and be protected by the barriers.

Because of the size of the race on that particular night, the designated pit area, the area which was behind the fence and barrier, was filled. For that reason, some of the drivers, including Brandon Rees, were pitted in an area about 200 feet from turn one of the half-mile race track. This area was not protected by the Jersey barriers. The Prays left the designated pit area to go over to where Mr. Rees was pitted. It was dangerous to be pitted in this area, and prior to the commencement of the race which eventually caused injuries to Mrs. Pray, racetrack officials had asked the drivers to remove their cars from that area. Mrs. Pray was sitting in a lawn chair next to Brandon Rees' trailer when, during a stock car race, two cars were involved in a collision. One of the cars scraped along the Jersey barrier, left the race track and ended up hitting the Rees trailer, causing severe head injuries to Mrs. Pray.

Because of his racing experience, Mr. Pray knew of the dangers at a race track and had himself flipped a vehicle into the grandstands in San Diego in 1947. Mrs. Pray was at the racetrack on that day, and if she did not see the accident she at least knew that the accident had occurred. Furthermore, Mr. Pray had, on more than one occasion, seen cars leave the racetrack and injure people.

Mrs. Pray, because of the brain damage, was unable to give any testimony in this case and did not attend the trial.

The plaintiffs contend (1) the releases were invalid as a matter of law; (2) the trial court erred in allowing deposition testimony to be read without requiring the deponent's corrections to be read as well; and (3) the trial court erred in instructing the jury on express and implied assumption of risk.

The verdict in this case eliminates the need to discuss the trial court's instructions on assumption of risk. Under the doctrine of comparative negligence, the jury is required to apportion the damages between the plaintiff and the defendant if it finds that the defendant was negligent and also finds that the plaintiff was guilty of contributory negligence or had assumed the risk. A.R.S. § 12-2505. Since there was only a general verdict here and no apportionment, the jury found either that the defendants were not negligent or that the releases signed by the Prays precluded them from recovering. We shall start our discussion with plaintiffs' contention that the releases were invalid as a matter of law.

Parties can expressly agree in advance that the defendant shall not be liable to the plaintiff for the defendant's negligence, absent public policy to the contrary. Central Alarm of Tucson v. Ganem, 116 Ariz. 74, 567 P.2d 1203 (App. 1977); W. Prosser and W. Keeton on Torts § 68 at 482 (5th Ed.1984). See also 57 Am.Jur.2d Negligence §§ 20 et seq.; Annot. 68 A.L.R.3d 7 (1976); Annot. 49 A.L.R.3d 321 (1973); Annot. 8 A.L.R.3d 1393 (1966); Annot. 175 A.L.R. 8 (1948). Such an agreement is unenforceable on public policy grounds if:

" * * *

2. (a) [T]he term exempts an employer from liability to an employee for injury in the course of his employment; (b) the term exempts one charged with a duty of public service from liability to one to whom that duty is owed for compensation for breach of that duty, or (c) the other party is similarly a member of a class protected against the class to which the first party belongs. * * * " Restatement (Second) of Contracts § 195.

The Restatement also notes in Comment b to § 195 that a party's attempt to exempt himself from liability for negligent conduct may fail as unenforceable under § 208 of the Restatement (Unconscionability).

Other jurisdictions have addressed the question in the context of racetrack release forms and have upheld the validity of the releases against challenges on public policy grounds. Gore v. Tri-County Raceway, Inc., 407 F.Supp. 489 (M.D.Ala.1974); Morrow v. Auto Championship Racing Ass'n Inc., 8 Ill.App.3d 682, 291 N.E.2d 30 (1972); LaFrenz v. Lake County Fair Board, 172 Ind.App. 389, 360 N.E.2d 605 (1977); Winterstein v. Wilcom, 16 Md.App. 130, 293 A.2d 821 (1972); Lee v. Allied Sports Associates, Inc., 349 Mass. 544, 209...