If Kevin Ward, Jr. Signed a Release, Would His Estate be Barred From Suing Tony Stewart, the Raceway, and Others?

Sprint car driver Kevin Ward, Jr. died recently during a sprint car race at the Canandaigua Motorsports Park in Canandaigua, NY. He was struck and killed by a car driven by NASCAR champion Tony Stewart.  If Ward’s estate were to file a civil suit, the defendants would likely include Stewart, the raceway owner/operator, and Empire Super Sprints Inc., which is the sprint car series that sanctioned the race. One potential legal issue would be the extent to which a release/waiver of liability could be enforced.  As is generally the case in the sport of racing, Ward likely signed at least two releases in which he promised not to sue ESS, any driver, or any raceway owner/operator, among others. One release was probably executed at ESS’ request and applied to the 2014 season. Another release was probably executed at the raceway’s request on the date of the accident and applied to this particular race.

In New York, there is no blanket prohibition against releases, nor is there a blanket prohibition against a party exempting itself from liability for its own negligence. Such exculpatory provisions are closely scrutinized by the courts, but they are certainly enforceable. There are, however, New York statutes that prohibit exculpatory provisions in certain circumstances. The statute that would be at issue in a case involving a raceway injury/death is New York’s General Obligations Law § 5-326.  The statute reads:

§5-326.  Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable 

Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed void as against public policy and wholly unenforceable.

In order to determine whether a plaintiff’s suit is barred by a release, two main issues have to be analyzed. One issue is whether GOL § 5-326 voids the release. The other issue is whether the release expresses an unequivocal intent to release defendants from defendants’ own negligence.

Regarding the issue of whether the statute voids the release, all of the following elements have to be met in order for the release to be void: (1) the facility is a place of amusement or recreation; (2) the plaintiff was a user of the facility; (3) the release was in connection with a membership application, ticket of admission, or similar writing between the plaintiff and the owner or operator of the facility; and (4) the owner or operator received a fee or other compensation for the use of such facilities. Courts have repeatedly held that raceways are indeed places of amusement or recreation, so that element is easily met.  It is not as easy, however, to decide whether the other elements are met because the analysis is driven by the facts of any given case. For instance, if Ward signed a release for ESS, then that release would not have been between Ward and the owner/operator of the raceway, nor would the owner/operator have received a fee since the fee was probably paid to ESS. Thus the statute would not void the release as to any of the defendants.  Additionally, even if Ward signed a release for the raceway owner/operator, courts have held that participants are not “users” under the statute.  So if Ward was not a user, then even a raceway release would not be voided by the statute.

If GOL § 5-326 does not void the release, the next issue is whether the release unequivocally releases the defendants from their own negligence.  Where the language of the exculpatory agreement expresses in unequivocal terms the intention of the parties to relieve defendants of liability for the defendants’ negligence, the agreement will be enforced. In the racing world, the same or very similar exculpatory language tends to appear in releases, whether they are NASCAR releases or releases for other racing organizations such as sprint car organizations. Courts have held that these releases are enforceable when they clearly state that the defendants are released from liability for their own negligence.

So if Ward’s estate were to file suit, the case could very well be dismissed on the basis of a release. And the release issue is separate from the assumption of the risk issue, which would also surely be an affirmative defense that the defendants would assert.

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