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HomeMy WebLinkAbout96-5370 civilKENNETH J. TUCKER AND IN THE COURT OF COMMON PLEAS OF SYLVIA M. TUCKER CUMBERLAND COUNTY, H~sband and Wife, PENNSYLVANIA Plaintiffs v. NO. 96-5370 CIVIL SEL-WiL, INC.; SEL-WIL, INC. t/d/b/a WILLIAMS GROVE SPEEDWAY; WILLIAMS GROVE AMUSEMENTS, INC.; WILLIAMS GROVE, INC.; and WORLD OF OUTLAWS, INC., Defendants IN RE: DEFENDANTS WILLIAMS GROVE~ INC.'S AND WORLD OF OUTLAWS, INC.'S MOTION FOR SUMMARY JUDGMENT Before HOFFER~ P.J. and OLER~ J.. ORDER OF COURT AND NOW, ~ ~ ~1! 2000, after consideration of the briefs submitted by both parties, the facts of record, and the applicable law, Defendants Williams Grove Speedway, Inc.'s and World of Outlaws, Inc.'s Motion for Summary Judgment against Plaintiffs Kenneth and Sylvia Tucker is hereby granted. By the Court, ~'o~ ~[. ~(~ffer, )' P.J. Melvin: Hess, Esquire Gibbei, Kraybill & Hess 41 East Orange Street Lancaster, PA 17602 Attorney for Plaintiffs Timothy J. McMahon, Esquire Marshall, Dennehey, Coleman, Warner, & Goggin 100 Pine Street- 4th Floor P.O. Box 803 Harrisburg, PA 17108 Attorney for Defendants Williams Grove, Inc., and World of Outlaws, Inc. Richard L. P!acey, Esquire PLACEY & WRIGHT The Fulton Building, 11th Floor 200 N. Third Street P.O. Box 99 Harrisburg, PA 17108-0099 Attorney for Defendants SeI-Wil, Inc. 2 KENNETH J. TUCKER AND IN THE COURT OF COMMON PLEAS OF SYLVIA M. TUCKER CUMBERLAND COUNTY, Husband and Wife, PENNSYLVANIA ?!~intifi's : v. NO. 96-5370 CIVIL SEL-WIL, INC.; SEL-WIL, INC. t/d/b/a WILLIAMS GROVE SPEEDWAY; WILLIAMS GROVE AMUSEMENTS, INC.; WILLIAMS GROVE, INC.; and WORLD OF OUTLAWS, INC., Defendants IN RE: DEFENDANTS WILLIAMS GROVE, INC.'S AND WORLD OF OUTLAWS, INC.'S MOTION FOR SUMMARY JUDGMENT Before HOFFER, P.J. and OLER, J. OPINION HOFFER, P.J.: In this opinion, we address the motion for summary judgment filed by defendants Williams Grove, Inc. and World of Outlaws, Inc. It is pleaded that on September 30, 1994, plaintiff Kenneth Tucker attended a race car sporting event held at the Williams Grove Speedway (hereinafter Speedway) in Mechanicsburg, Pennsylvania. (Plaintiffs' Complaint, I] 11). During this event, plaintiff was acting as a "push truck driver." (Tucker Depo. p.68). A push truck driver uses a pickup truck to assist with the starting of the race cars prior to the beginning of each race. (Tucker Depo. pp.68-69). As a benefit of being a push truck driver, plaintiff gained free admission into the infield area of the speedway where he could view the races. (Tucker Depo. pp.69-70). On the evening in question, as plaintiff was standing in the bed of his truck watching a race from the infield, a race car crashed i.qto the chain link fence around the infield. (Tucker Depo. p.102). Upon perceiving the impending collision, plaintiff jumped out of his truck to avoid being struck. (Tucker Depo. p.107, lines 2-9). Plaintiff testified that he sustained various injuries, including a broken foot. (Tucker Depo. pp.112-113). Plaintiff's complaint alleges that the accident is a result of defendants' negligent failure to maintain the fence surrounding the infield (Plaintiffs' complaint, ¶ 24). Defendants Williams Grove, Inc. and Worid of Outlaws, Inc. filed a motion for summary judgment. As the basis for their motion, defendants presented a track release dated April 1, 1994, and signed by plaintiff. (Tucker Depo. p.71, lines 7-19). The release states, in pertinent part, as follows: WILLIAMS GROVE SPEEDWAY This is a TRACK RELEASE The driver and/or entrant, in signing this agreement, elects to use said track at his, or its, own risk and thereby release and discharges said SPEEDWAY and organizers, together with their successors, officers, agents and employees and their heirs and personal representatives from all liability from personal injuries that may be received by said entrant, and from all claims and demands for damages to personal property or employee, growing out of, or resulting from the race or races or events contemplated under this entry blank, or caused by any construction or conditions of the track of WILLIAMS GROVE SPEEDWAY or said organizers. 2 (Exhibit D, Defendants' motion for summary judgm-~nt). Plaintiff admits that he received in the mail a track release from Willi,am:~ ~?'ove Speedway that he signed, dated April 1, 1994. (Tucker Depo. p.71, lines 7-19). Plaintiff also testified that he acted as a push truck driver throughout the racing season at the Speedway, and that he had participated in racing events I~imself on numerous occasions. (Tucker Depo. p.89, lines 3-7). The sole issue before us is whether the exculpatory clause in the track release is valid and enforceable such that it releases defendants from responsibility for plaintiffs' injuries whether due to defendants' negligence or otherwise. Discussion Summary judgment must be entered if the pleadings, depositions, answers to interrogatories, and admissions show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 507 A.2d 323 (1986). In deciding a motion for summary judgment, the court will "view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party." Ertel v. Patriot News Co., 544 Pa. 93, 98-99, 674 A.2d 1038, 1041 (1996). Additionally, the moving party has the burden of proving that no genuine issue of material fact exists. Thompson v. Nason Hosp., 527 Pa. 330, 591 A.2d 703 (1991). Upon review of the record, we find that no genuine issue of material fact exists as to the question of the enforceability of defendants' 3 release. The parties have agreed that Kenneth Tucker received the track release from the Speedway in the mail, filled out the release with his name, aodres¢:. ;:,.,:~e, date of birth and signature, signed the release and returned it to the Speedway. We now proceed to the legal issue of the sufficiency of the release. The issue before this court is whether the language of defendants' release is sufficiently specific to spell out an intention of the parties to release defendants from liability for any negligence. The plaintiffs claim that if parties to an exculpatory contract intend to include provisions within exculpatory or indemnit}~ clauses that cover losses due to their own negligence, they must do so with great particularity, using words that are clear and unequivocal. Plaintiffs allege that since defendants did not specifically use the term "negligence" in their release, the release should be declared null and void. We begin our analysis by examining the requirements for an exculpatory agreement to be valid and enforceable. The Pennsylvania Supreme Court has set forth the test to determine whether an exculpatory clause is valid. See Employers Liability Assurance Corp. v. Greenville Business Men's Association, 423 Pa. 288, 292, 224 A.2d 620, 622 (1966). Generally, an exculpatory clause is valid if (1) it does not contravene any policy of the law; (2) the contract is between private persons relating entirely to their own private affairs; and (3) each party is a free bargaining agent so that the contract is not in effect one of adhesion. Id. See also Topp Copy Products v. Singletary, 533 Pa. 468, 626 A.2d 98 (Pa. 1993). Because the parties have agreed that the 4 release is valid, we need not address the issue of the validity of the release. Therefore, we proceed to the question of the enforceability of the release. An exculpatory agreement, although valid, will be unenforceable unless ~i~e language of the parties is clear that a person is being relieved of liability for his own acts of negligence. Topp Copy, 626 A.2d at 99. We now proceed to the determination of whether the language of the release signed by Kenneth Tucker is sufficiently clear to meet the standards enunciated under Pennsylvania law for an enforceable release of liability. The Pennsylvania Supreme Court has listed the following as guiding standards in interpreting exculpatory clauses: (1) the contract language must be construed strictly, since exculpatory language is not favored by the law; (2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; (3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and (4) the burden of establishing the immunity is upon the party invoking protection under the clause. Topp Copy, 626 A.2d at 99. Plaintiffs argue that defendants' release is not sufficiently specific to cover defendants' acts of negligence. In support of this argument, plaintiffs compare this case to Ruzzi v. Butler Petroleum Co., 527 Pa. 1, 588 A.2d 1 (1991). In Ruzzi, an employee of a sign company brought suit against a contractor and gasoline station owners alleging negligence. Id. The contractor and the gasoline 5 station owners had signed an indemnification agreement purporting to release the contractor from liability for injuries occurring on the gasoline station premises. Id. at 3. The court ruled that although the release stated that the contractor was to be released from "any and all liability for claims for loss, damage, injury or other casualty to persons or property...," the language of the contract was not specific enough to release the contractor from its own acts of negligence. Id. The court determined that for an indemnification agreement to be enforceable as to one's own acts of negligence, the exculpatory language must include "an express stipulation concerning negligence." Id. at 4. Citing Perry v. Payne, 217 Pa. 252, 66 A. 553 (1907), the court reasoned that the liability on such [an] indemnity [contract] is so hazardous, and the character of the indemnity so unusual and extraordinary, that there can be no presumption that the indemnitor intended to assume the responsibility unless the contract puts it beyond doubt by express stipulation. Id. Plaintiff argues that under this standard, the language of defendants' release of liability is not enforceable. However, a more recent Pennsylvania Supreme Court case compares the enforceability of an indemnity clause in a construction contract to an exculpatory clause in a lease. See Topp Copy, 626 A.2d at 99. In Topp Copy, a tenant brought suit against the landlord when the tenant's property was injured by water leakage resulting from the landlord's negligence. Id. at 99. The lease between the parties contained an exculpatory provision that stated, in pertinent part, "said lessee does hereby release and discharge said lessor ... from any and all liability 6 for damage caused by water .... "Id. at 99, fn.1. The court determined that the ex-::ulpatory provision was sufficiently clear to relieve the landlord from liability for his own negligence. Id. at 99. Using Cannon v. Eiresch, 307 Pa. 31, 160 A. 595, 596 (1932) as precedent, the court stated that the word "all" is not a sufficiently specific term to relieve an indemnitee of liability for his own acts of n~gl~gen,,e in an indemnity contract. Id. at 99. However, the word "all" in an exculpatory clause is clear enough to relieve a lessor of liability for his own ~'~e~ligence in a lease. Id. at 101. Thus, the court explained that Perry and Ruzzi are examples of "how our general rules of contract interpretation for clauses which purport to relieve a party of his responsibility for his own negligence are applied in the unique circumstance of an indemnity arrangement." Id. at 101. See also P.A. Engineering Corp. v. McGraw-Edison Co., 500 Pa. 605, 459 A.2d 329 (1983) (distinguishing between a broadly worded, standardized release agreement as a condition of equipment rental and a clearly worded indemnification agreement negotiated between two sophisticated business entities). Having examined the nature of both types of agreements, we determine that the release signed by plaintiff is more similar to an exculpatory clause in a lease than an indemnity agreement in a construction contract. As the Supreme Court has already stated, an indemnity clause is an unusual kind of agreement. An indemnity clause provides that the signor will answer for the liability of another to a third party, which is the "unusual and extraordinary" character of the 7 indemnity to which the Supreme Court has referred. Perry v. Payne, 217 Pa. 252, ~6 ,~', ~:,~'", (1907). Additionally, it is commonplace for sponsors of dangerous sporting and recreational activities to require participants to sign waivers of liability. See generally Kotovsky v. Ski Liberty Operating Corp., 412 Pa. Super. 442, 603 A.2d 663 (1992), Search v. East Windsor Speedway, 82 Berks L.J. 206 (1990), afl'd, 400 Pa. Super. 134,582 A.2d 1380 (1990), Valeo v. Pocono Intern. Raceway, Inc., 347 Pa. Super. 230, 500 A.2d 492 (1985), Miele v. Chadds Ford Ski School, 37 D&C 3d 325 (1985), Dohm v. Trailways Sports Club, Inc, 19 Adams L.J. 29 (1977). Therefore, we apply the less rigorous standard of specificity set forth in Topp Copy. With these principles in mind, courts have looked at such agreements as a whole, using common sense in interpreting the agreement. See Zimmer v. Mitchell and Ness, 253 Pa. Super. 474, 385 A.2d. 437 (1978). In Zimmer, the Superior Court analyzed a ski rental agreement in which the renter accepted "full responsibility for any and all ... damage or injury." Id. at 438. The renter brought suit against the rental shop for injuries sustained while skiing. Id. In examining the release to determine whether its language was sufficiently clear to render the release enforceable, the court concluded that "no clearer expression of intent to exculpate [the rental shop] is conceivable." Id. The court ruled that "the mere fact that the word "negligence" does not appear in the agreement is not fatal to appellee's position." Id. See also Schillachi v. Flying Dutchman Motorcycle Club, 751 F.Supp. 1169 (E.D.Pa. 1990) (holding that a racetrack release 8 absolving the track of "al! liability ... for any injury" is specific enough to cover the racetrack's own r~e.~li~!~:: Without question, the release signed by plaintiff does not use the word "negligence." However, the release does spell out that the signor releases the defendants (speedway and organizers) from "all liability from personal injuries" as well as "all claims and demands for damages...resulting from the race...or caused by any construction or conditions of the track." We find this language sufficient to release defendants from liability for their own negligence, if any. As the court stated in Topp Copy, "the word afl needs no definition; it includes everything, and excludes nothing. There is no more comprehensive word in the language, and as used here it is obviously broad enough to cover liability for negligence." Id. at 100, citing Cannon, 160 A. 595 (1932). (emphasis added). In further support of their position, plaintiffs also cite Brown v. Racquetball Centers, Inc., 369 Pa. Super. 13, 534 A.2d 842 (1987) as precedent for the proposition that the wording of the defendants' release is not sufficiently clear and unequivocal to satisfy the' requirements for enforceability. Brown, 534 A.2d 842. In Brown, a club member slipped in the shower on a wet tile floor in a racquetball club. Id. The club member had signed an agreement stating, "1 hereby ...assume all risks of injury to my person ... that may be sustained in connection with the stated and associated activities in and about [the] premises." Id. at 843. The court held that the release did not absolve the club of liability for its own acts of negligence. Id. The court explained that "the 9 language can more clearly be interpreted to relieve the club of liability as the result of injuries sustained by a member while participating in certain activities of the club." Id. Brown is distinguishable from the case at hand. In Brown, the court did not give effect to the release because the stated scope of the release covered only those "associated activities in and about the premises." Brown, 534 A.2d. at 843. The court determined that the club member had not contemplated slipping on a wet floor in signing the release, and found the release invalid. Id. The club member suffered his injuries, not in an "activity of the club", but while engaged in an ancillary activity. Id. See also Schillachi, 751 F.Supp. at 1174. Whereas in the case at hand, plaintiffs claim to have been injured as a result of a negligently maintained track. As stated in the waiver, the signor released the defendants (speedway and organizers) from "all liability from personal injuries...resulting from the race...or caused by any construction or conditions of the track." As the condition of the track as well as injuries resulting from the race were both contemplated in the release, we find that the plaintiff has released defendants from any such liability. 10