Wagner v. Sfx Motors Sports, Inc., Civil Action No. 05-2336-KHV.

CourtUnited States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
Writing for the CourtVratil
Citation460 F.Supp.2d 1263
PartiesArthur C. WAGNER, Jr., Individually, and Arthur C. Wagner, Jr., for the benefit of, Jean Marie Wagner, Plaintiff, v. SFX MOTOR SPORTS, INC., et al., Defendants.
Docket NumberCivil Action No. 05-2336-KHV.
Decision Date27 October 2006
460 F.Supp.2d 1263
Arthur C. WAGNER, Jr., Individually, and Arthur C. Wagner, Jr., for the benefit of, Jean Marie Wagner, Plaintiff,
SFX MOTOR SPORTS, INC., et al., Defendants.
Civil Action No. 05-2336-KHV.
United States District Court, D. Kansas.
October 27, 2006.

Page 1264

Adam M. Crane, Crane Law Firm, Prairie Village, KS, Larry G. Pepperdine, Steven R. Fabert, Fisher, Patterson, Sayler & Smith, Topeka, KS, for Plaintiff.

Paul M. Croker, Richmond M. Enochs, Wallace Saunders Austin Brown & Enochs Chtd., Overland Park, KS, for Defendants.


VRATIL, District Judge.

Arthur C. Wagner, Jr., individually and on behalf of his wife, Jean Marie Wagner, brings suit against SFX Motor Sports, Inc. d/b/a Clear Channel Entertainment-Motor Sports, SFX Entertainment, Inc. d/b/a Clear Channel Entertainment, Clear Channel Communications, Inc., Jayhawk Racing Properties, L.L.C., and Heartland Park Raceway, L.L.C. Plaintiff alleges ordinary negligence, wanton conduct and loss of consortium arising out of injuries which he sustained while competing in a motorcycle race on August 8, 2003. This matter comes before the Court on Defendants' Motion For Summary Judgment (Doc. # 54) filed July 17, 2006. For reasons set forth below, the Court sustains defendants' motion in part.

Legal Standards

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252, 106 S.Ct. 2505.

The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548,

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91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir. 1991). Once the moving party meets its burden, the nonmoving party must demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Inn, Inc. v. First Affiliated Securities, Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). The nonmoving party may not rest on its pleadings but must set forth specific facts in opposition of the motion. Applied Genetics, 912 F.2d at 1241.

The Court must view the record in the light most favorable to the party opposing the motion for summary judgment. Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Summary judgment may be granted if the nonmoving party's evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.

Factual Background

The following facts are uncontroverted, deemed admitted or, where disputed, viewed in a light most favorable to plaintiff.

On August 8, 2003, Arthur Wagner wrecked his motorcycle while competing in the Formula USA 250K Team Challenge Endurance Race at Heartland Park Topeka racetrack in Topeka, Kansas. The City of Topeka owned the racetrack, but it had assigned the right to operate the racetrack to Jayhawk Racing Properties, L.L.C. ("Jayhawk").1 Jayhawk in turn had assigned its right to operate the racetrack to Heartland Park Raceway, L.L.C. ("Heartland").2

On March 1, 2003, Heartland entered into a track rental agreement with SFX Motor Sports, Inc. d/b/a Clear Channel Entertainment-Motor Sports ("SFX Motor Sports").3 In the agreement, Heartland authorized SFX Motor Sports to stage Formula USA Series and Championship Cup Series ("CCS") motorcycle races at the racetrack from August 8 through 10, 2003. The track rental agreement provided in pertinent part as follows:

This contract is entered into as of the 1 st day of March, 2003 by and among HEARTLAND PARK RACEWAY, LLC, a Kansas limited liability company (hereinafter referred to as "HPT" or "Lessor"), and [SFX Motor Sports, Inc. d/b/a Clear Channel Entertainment-Motor

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Sports] (hereinafter referred to as "Lessee").

* * *

1. HPT will make available to Lessee specific areas of the premises commonly known as Heartland Park Topeka ..., consisting primarily of a drag strip, road racing course, dirt track, off-road facilities and ancillary buildings, for the purpose indicated on Exhibit A (the "Event").

* * *

11. HPT requires that there be a minimum of one (1) licensed and staffed Paramedic Ambulance on the Premises during all events. The cost of [two] staffed Paramedic Ambulance[s] [on duty from 8:00 AM until 6:00 PM, each day] shall be included in the Track Rental.

12. HPT will furnish the following equipment for use of Lessee: Fire Extinguishers: 10 and 20 lbs. charged; Oil Dry; Shovels; Brooms; and Water Jugs. In addition, one (1) wrecker, one flatbed truck and one (1) fire truck are also available for use.

13. HPT will provide a marked location for all corner workers who must remain within the marked areas, except as may be specifically required to perform their duties.

* * *

20. Lessee warrants and represents that all racing or on-track activities shall be conducted in accordance with the rules and regulations of the governing sanctioning body in effect as of the date of the Event. Lessee shall be responsible for enforcing ... all rules and regulations. Lessee shall also be responsible for the conduct of all workers, officials, spectators, guests or other parties on the Premises during the terms of this Agreement, as well as the safe conduct of the Events. Lessee shall establish a minimum level of staffing necessary for the conduct of on-track activities and shall inform HPT of the minimum. Lessee shall not conduct any on-track activities unless the minimum requirement is met. If HPT determines, in its sole discretion, that inadequate staffing is in place, HPT may place additional workers on location at the expense of Lessee. HPT MAKES ABSOLUTELY NO WARRANTIES, EITHER EXPRESSED OR IMPLIED concerning the safety of any persons or property as a result of complying with the requirements of this Agreement. Lessee acknowledges that motor sports activities are hazardous and participation can lead to serious or fatal injury; the hazards of motor sports are known to its members; and its members, participants, their crews and guests have assumed the risk of any injury by choosing to participate and attend the event at the Premises.

Exhibit N to Defendant's Memorandum In Support Of Motion For Summary Judgment ("Defendant's Memorandum") (Doc. # 55) filed July 17, 2006.

Some time in 2003, before the races in August, Heartland entered into an oral agreement with Great American Management ("GAM") by which it delegated some duties to GAM, including opening the gates of the racetrack, preparing the bathrooms, ensuring that the public address system worked and providing water.

Before the race on August 8, plaintiff signed a release and waiver of liability.

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The waiver provided in pertinent part as follows:

IN CONSIDERATION (a) of being permitted to compete ... EACH OF THE UNDERSIGNED, for himself/herself, his/her personal representatives, parent or legal guardian, heirs, and next of kin:

* * *

2. HEREBY RELEASE, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE SFX Motor Sports, Inc., d/b/a Clear Channel Entertainment-Motor Sports, and its affiliates and related companies including specifically SFX Entertainment, Inc., d/b/a Clear Channel Entertainment, Clear Channel Communications, [I]nc., ... track operators, ... owners and lessees of premises used to conduct the Event(s), ... all for the purposes herein referred to as "Releasees", FROM ALL LIABILITY TO THE UNDERSIGNED, his personal representatives, parent or legal guardian, assigns, heirs, and the next of kin FOR ANY AND ALL LOSS OR DAMAGE, AND ANY CLAIM OR DEMANDS THEREFORE ON ACCOUNT OF INJURY TO THE PERSON OR PROPERTY, OR RESULTING IN DEATH, OF THE UNDERSIGNED ARISING OUT OF OR RELATED TO THE EVENT(S), WHETHER CAUSED, IN WHOLE OR IN PART, BY THE SOLE OR CONCURRENT NEGLIGENCE OR WRONGDOING, STRICT LIABILITY OR FAULT OF THE RELEASEES OR OTHERWISE.

Exhibit J to Defendants' Memorandum at 14.4

During the race, plaintiff's motorcycle entered corner 10 of the racetrack at a speed of 100 to 130 miles per hour, and began to slide. The motorcycle hit a speed bump, and plaintiff and the motorcycle slid across the grass and dirt on the outside of corner 10 (the "run-off" area) into an unprotected concrete barrier approximately 25 to 50 feet away. The collision ignited a fire which engulfed both plaintiff and the motorcycle, and plaintiff suffered severe injuries.

Before the race, Keith Abbott and Kevin Elliot, who worked for SFX Motor Sports, made a few trips around the racetrack to identify primary target zones of impact. Gordon Spieckerman, another employee of SFX Motor Sports, rode his motorcycle around the racetrack to inspect...

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