A Racing Incident


Ketchum v. Mercer Raceway Park, LLC (Pennsylvania)(Not Published)
(A race team crew member was killed when a race car left the racing surface and struck a guard rail in front of the crew member; his estate sued the speedway for wrongful death.)

The incident occurred in 2007 during a race at the defendant’s speedway.  The decedent and a friend were volunteer members of a pit crew.  They were standing near a guard rail and catch fence barrier of the pit area watching a race when a race car moved across the racing surface and collided with the guard rail and catch fence.  The concrete footing of the fence was ripped from the ground, and a steel pole was separated from the footing, striking the decedent.

According to the evidence presented, sometime prior to the incident, the owner of the racetrack hired the track’s manager to improve the fencing around the track for safety reasons.  The manager designed and installed the barrier “on his own” without instruction, guidance, or formal education or training.  He was learning as he went along and utilized his “best guess” as to how far into the ground to place each pole.  The manager was aware that steel posts could be separated from the footing of a fence and pulled from the ground because he had seen it happen before.

Prior to their entry into the facility and participation on the pit crew, the decedent and his friend paid a pit entrance fee and signed a “Release and Waiver of Liability and Indemnity Agreement.”  They understood what they were signing and knew that crashes occurred and had seen cars collide with walls/guard rails.  They had participated as pit crew members at numerous prior events and had signed many prior waiver and release agreements.  The evidence also showed that the racetrack posted rules specific to the pit area at its entrance, along with warning signs to both participants and patrons concerning the possible dangers of watching automobile racing.

In their lawsuit, the plaintiffs argued that the defendant “acted negligently with respect to the construction and installation of the guard rail and fencing.”  The defendant thereafter moved for summary judgment based upon the waiver and release agreements signed by the injured pit crew members.  The plaintiffs made several arguments against the enforceability of the waiver and release documents, but the trial court disagreed, granting the motion.  The plaintiff appealed.  On appeal, the Court of Appeals addressed each of plaintiffs arguments in turn.

Plaintiffs first argued that the trial court erred by finding that the waiver and release agreement did not violate public policy.  By way of expert declaration, plaintiffs asserted that the defendant violated Pennsylvania Department of Transportation requirements with regard to the construction and installation of the guard rail and fencing.  Furthermore, the argued that the plaintiffs could not have contemplated the “latent defects,” which they claimed “went beyond the contract.”  Citing several prior cases, including published motorsports waiver and release cases in Pennsylvania, the Court disagreed, concluding that “the Release [which was “nearly identical” to the release in once of the cited cases] was a private agreement between individuals and was not a matter of public interest.”  The experienced pit crew members had voluntarily signed the documents, and they could have walked away from participation in the event “as they did not depend on working at the racetrack for their livelihoods.”

As to the various standards cited to by the plaintiffs’ experts, including those issued by the Pennsylvania Department of Transportation, the American Section of the International Association for Testing and Materials, and local government agencies, the Court explained that the expert “failed to provide any kind of explanation as to how these standards and ordinance are applicable to the present matter.”  As further noted by the Court, “No applicable spectator racing regulations, ordinances, standards, or codes have been brought to the court’s attention nor could any zoning regulations be found upon independent review.”

Second, plaintiffs argued that the waiver and release signed by the pit crew members was “invalid due to the impossibility of performance.”  Specifically, plaintiff contended that the pit crew members were “unable to inspect the track and observe the latent defects and any time before they executed the agreement.”  However, the Court held that plaintiffs had not established that any alleged defects existed in the construction and installation of the guard rail and fencing.  Additionally, the Court referred to the language in the waiver and release which obligated the pit crew members to continuously inspect all parts of the restricted area and if they found anything to be unsafe, they needed to advise officials and leave the restricted areas.

Third, the plaintiffs argued that the waiver and release agreement was “invalid because it was unenforceable due to a lack of consideration.”  The claimed that because the pit crew members were unable to inspect the alleged latent defects of the improperly constructed catch fence footings, they were unable to provide appropriate consideration.  However, the Court said that the plaintiffs appeared to have “misinterpreted the consideration element of a contract” and noted that the agreement was signed in consideration of the pit crew members being permitted to enter the restricted area and participate in the event.

Finally, plaintiffs argued that the waiver and release agreement contained ambiguities that should be construed against the defendant.  Plaintiffs argued that the language was “extremely broad” and did not include “specific information” pertinent to the racetrack other than a handwritten notation at the top of the document.  However, the Court agreed with the trial court finding that the precise language had been upheld in a prior Pennsylvania motorsports waiver and release case, and that the document was not overly broad or too generic.

In light of all of the foregoing, the Court affirmed the trial court’s decision to grant the defendant’s motion for summary judgment.

NOTE: This is a solid and well-reasoned decision, which is consistent with the vast majority of motorsports waiver and release cases on a national basis.  The waiver and release form analyzed in this case is the typical motorsports waiver and release document that has been used, with some slight modifications, for several decades.

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