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Home My WebLink About2005-4894 Civil CHRISTINA CALLAWAY, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION – LAW : NO. 05-4894 CIVIL RICKEY BREHM, a/k/a RICK : BREHM, : Defendant : : vs. : : SILVER SPRING SPEEDWAY, : INC., : Additional Defendant : JURY TRIAL DEMANDED IN RE: MOTION FOR SUMMARY JUDGMENT OF ADDITIONAL DEFENDANT, SILVER SPRING SPEEDWAY, INC. BEFORE BAYLEY, P.J., AND HESS, J. OPINION AND ORDER This case arises out of an injury to the plaintiff which occurred at the Silver Spring Speedway in Cumberland County on October 11, 2003. Ms. Callaway was injured when defendant, Rickey Brehm, drove over her left leg and foot with a trailer he was towing. The accident occurred in what is generally known as the “back pit” area of the racetrack. (Callaway Dep. 23:14-18, 52:23-54:17, Sept. 20, 2006). Upon entering the speedway premises, the plaintiff signed a release discharging releasees: FROM ALL LIABILTY TO THE UNDERSIGNED . . . FOR ANY AND ALL LOSS OR DAMAGE, AND ANY CLAIM OR DEMANDS THEREFOR 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 NO. 05-4894 CIVIL CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE. (Release ¶ 2). The release identifies as releasees track operators and owners as well as “any persons in any RESTRICTED AREA.” (Release ¶ 2.) The release does not set forth the physical boundaries of what consists of a restricted area, but defines a restricted area as “any area requiring special authorization, credentials, or permission to enter or any area to which admission by the general public is restricted or prohibited.” (Release at first un-numbered paragraph). After entering the back pit area, plaintiff helped push a racecar to be driven by her boyfriend to a table staffed by race officials in order to have a transponder installed in the car for use in later time trials. After installation, plaintiff began to push the car back to her boyfriend’s trailer, stopping when she saw defendant drive through the gate. (Callaway Dep. 40:7-43:14, Brehm Dep.27:9-17, Sept. 20, 2006) When defendant stopped briefly to talk to a person directing traffic, plaintiff moved behind defendant’s truck, standing slightly in front of the fender of the trailer he was towing. (Callaway Dep.49:23-51:18) As defendant pulled away to park, his trailer fender struck her hip, while the trailer tires ran over her left foot and leg. (Callaway Dep.57:22-58-4) Under Rule 1035.2 of the Pennsylvania Rules of Civil Procedure, summary judgment is appropriate where there is no genuine issue of material fact as to a necessary element of a cause of action or defense. Pa. R. C. P. 1035(1) (Thompson-West 2006). When a court is considering the merits of a motion for summary judgment, the court must view the facts of record in the light most favorable to the non-moving party. See Beck-Hummell v. Ski Shawnee, Inc., 2006 Pa. Super. 159, ¶ 5, 902 A.2d 1266, 1269 (2006). A summary judgment will only be entered where 2 NO. 05-4894 CIVIL it is clear that there is no genuine issue concerning any material fact, and “it is clear that that the moving party is entitled to a judgment.” See id. Although not generally favored by law, a release is enforceable if it meets the following standards: (1) it must not contravene any policy of law; (2) it must be a contract between individuals relating to their private affairs; (3) each Party must be a free bargaining agent, not simply one drawn into an adhesion contract with no recourse but to reject the entire transaction; and (4) the agreement must spell out the intent of the parties with the utmost particularity. Beck-Hummell, 2006 Pa. Super. at ¶ 7, 902 A.2d at 1269. A release agreement should be construed strictly and against the party asserting it. See id. In the case of a written contract, the intent of the parties is determined by the writing itself. See Kripp v. Kripp, 578 Pa. 82, 91, 849 A.2d 1159, 1163 (2004). A contract is ambiguous if “it is reasonably susceptible . . . [to] different constructions and capable of being understood in more than one sense.” See id. The question of whether a contract is ambiguous is a question of law. See Easton v. Washington County Ins. Co, 391 Pa. 28, 35-36, 137 A.2d 332, 336 (1957); see also Kripp, 578 Pa. at 91, 849 A.2d at 1164 n5. If there is no ambiguity, the contract is interpreted by the court as a matter of law. See Kripp, 578 Pa. at 91, 849 A.2d at 1163. Only after the court has decided that ambiguity exists does the parties’ intent become a question of fact for the jury. See Easton, 391 Pa. at 35- 36, 137 A.2d at 336. When such ambiguity exists, parol evidence may be admitted in order to resolve the ambiguity. See Kripp, 578 Pa. at 90, 849 A.2d at 1163. 3 NO. 05-4894 CIVIL Plaintiff argues that the release was determined to be ambiguous by the court as it applied between plaintiff and defendant Rickey Brehm; therefore, under the doctrine of the law of the case, plaintiff believes that the court should be precluded from reopening the issue of whether the release was ambiguous, and summary judgment should be denied. See Commonwealth v. Starr, 541 Pa. 564, 574, 664 A.2d 1326, 1331 (1995). The doctrine of the law of the case, under Pennsylvania law, mandates that: (1) upon remand for further proceedings, a trial court may not alter the resolution of a legal question previously decided by an appellate court in the matter; (2) upon a second appeal, an appellate court may not alter the resolution of a legal question previously decided by the same appellate court; and (3) upon transfer of a matter between judges of coordinate jurisdiction, the transferee trial court may not alter the resolution of a legal question previously decided by the transferor trial court. Id. Plaintiff argues that the third rule, known as the rule of coordinate jurisdiction, precludes this court from entertaining this motion for summary judgment. This is not correct. While this court determined that the release, as applied to defendant Rickey Brehm, contained genuine issues of material fact, this finding does not dictate that such issues of material fact similarly exist as the release applies to additional defendant Silver Spring Speedway. In order for the release to serve as a bar to defendant Brehm’s liability, determinations must be made as to whether Brehm was a releasee. This includes a determination as to whether the back pit area was a “restricted area” within the meaning of the release. In order for the release to serve as a bar to the additional defendant’s liability, one need only determine that the term “arising out of or relating to the event(s),” as used in the release, 4 NO. 05-4894 CIVIL includes the circumstances in which plaintiff’s injury occurred. The release explicitly includes the race track owner as a releasee; as there is no question that additional defendant is the owner of the racetrack, there is no question of whether the parties intended to include additional defendant under the terms of the release. A contract is ambiguous if “it is reasonably susceptible . . . [to] different constructions and capable of being understood in more than once sense.” Kripp, 578 Pa. at 91, 849 A.2d at 1163. However, a contract is not “rendered ambiguous by the mere fact that the parties do not agree upon the proper construction.” Metzger v. Clifford Realty Corp., 327 Pa. Super. 377, 386, 476 A.2d 1, 5 (1984). In the case at hand, the meaning of the term “arising out of or relating to the event(s)” is clear and unambiguous. The event in question is an automobile race to be held at Silver Spring Raceway. It is undisputed that plaintiff was injured in the back pit area while she was in the process of pushing a participant’s car to get a transponder installed, an instrument used during pre-race time trials. (Callaway Dep. 37:24-53:11, 57:22-58:4). The installation of the transponder was necessary to measure the driver’s time trial scores, in order to seed the driver for his later qualifying race. (Callaway Dep. 37:13-37:17). As such, one cannot make a reasonable argument that plaintiff’s injuries were not “arising out of or relating to the event(s),” as the installation of a transponder was undoubtedly race-related. Plaintiff argued, in her earlier brief in opposition to defendant Brehm’s motion for summary judgment, that because there is no description or location of “event(s)” listed in the release, the term “event(s)” could reasonably be interpreted to mean many things. While this may be the case, the release adds to the term “event(s)” the phrase “arising out of or relating to.” 5 NO. 05-4894 CIVIL As such, it becomes apparent that the release was intended to apply to all activities concerning or connected to the actual race, not merely the race itself. The Superior Court of Pennsylvania has previously found a release similar to the release in question to be unambiguous. In Seaton v. East Windsor Speedway, Inc., 400 Pa. Super. 134, 136, 582 A.2d 1380, 1381 (1990), the plaintiff, a member of the pit crew for a driver, was injured when a car crashed into the guardrail during the race. Prior to entering the pit, plaintiff signed a 1 release and waiver of liability. See id. Plaintiff sued the owner of the racetrack, seeking damages for personal injuries he suffered as a result of the crash. See Seaton, 400 Pa. Super at 136-37, 582 A.2d 1381-82. The trial court granted summary judgment for the defendant owner. 1 The release read, in pertinent part: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY AGREEMENT IN CONSIDERATION of being permitted to enter for any purpose any RESTRICTED AREA (herein defined as including but not limited to the racing surface, pit areas, infield, burn out area, approach area, shut down area, and all walkways, concessions and other areas appurtenant to an area where any activity related to the event shall take place), or being permitted to compete, officiate, observe, work for, or for any purpose participate in any way in the event, EACH OF THE UNDERSIGNED, for himself, his personal representatives, heirs, and next of kin, acknowledges, agrees and represents that he has, or will immediately upon entering any of such restricted areas, and will continuously thereafter, inspect such restricted areas and all portions thereof which he enters and with which he comes in contact, and he does further warrant that his entry upon such restricted area or areas and his participation, if any, in the event constitutes an acknowledgement that he has inspected such restricted area and that he finds and accepts the same as being safe and reasonably suited for the purposes of his use, and he further agrees and warrants that if, at any time, he is in or about restricted areas and he feels anything to be unsafe, he will immediately advise the officials of such and will leave the restricted areas: 1. HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the promoter, participants, racing association, sanctioning organization or any subdivision thereof, track operator, track owner, officials, car owners, drivers, pit crews, any persons in any restricted area, promoters, sponsors, advertisers, owners and lessees of 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 any and all loss or damage, and any claim or demands therefor on account of injury to the person or property or resulting in death of the undersigned, whether caused by the negligence of the releasees or otherwise while the undersigned is in or upon the restricted area, and/or, competing, officiating in, observing, working for, or for any purpose participating in the event[.] Seaton, 400 Pa. Super. at 136, 582 A.2d at 1381 n1. 6 NO. 05-4894 CIVIL See id. On appeal, the Superior Court upheld the grant of summary judgment. See Seaton, 400 Pa. Super. at 140, 582 A.2d. at 1383. Like the release in this case, the release in Seaton does not further define the word “event” as it relates to the release. Despite this, the Superior Court upheld the defendant’s motion for summary judgment. Admittedly, the Seaton case focused on questions of whether the release violated public policy and whether the plaintiff knowingly and voluntarily signed the release. These are not issues raised in this case. ORDER AND NOW, this day of June, 2007, following argument thereon, the motion of the additional defendant for summary judgment is SUSTAINED. BY THE COURT, _______________________________ Kevin A. Hess, J. Todd D. Getgen, Esquire For the Plaintiff George B. Faller, Jr., Esquire For Defendant Brehm Matthew L. Owen, Esquire For Additional Defendant :rlm 7 CHRISTINA CALLAWAY, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION – LAW : NO. 05-4894 CIVIL RICKEY BREHM, a/k/a RICK : BREHM, : Defendant : : vs. : : SILVER SPRING SPEEDWAY, : INC., : Additional Defendant : JURY TRIAL DEMANDED IN RE: MOTION FOR SUMMARY JUDGMENT OF ADDITIONAL DEFENDANT, SILVER SPRING SPEEDWAY, INC. BEFORE BAYLEY, P.J., AND HESS, J. ORDER AND NOW, this day of June, 2007, following argument thereon, the motion of the additional defendant for summary judgment is SUSTAINED. BY THE COURT, _______________________________ Kevin A. Hess, J. Todd D. Getgen, Esquire For the Plaintiff George B. Faller, Jr., Esquire For Defendant Brehm Matthew L. Owen, Esquire For Additional Defendant :rlm NO. 05-4894 CIVIL 9