An Arizona appeals court has affirmed a trial court’s summary judgment ruling, which dismissed a negligence claim brought by a professional race car driver, who had signed release and waiver agreements prior to entering a car race.
Plaintiff Charles Phelps was participating in a race at the Firebird Raceway on July 14, 2001 when he lost control of his vehicle and crashed into a wall. His vehicle caught fire and Phelps was severely burned. Phelps sued Firebird, alleging that its personnel were negligent in failing to more quickly rescue him from his burning vehicle and provide emergency medical care. Both sides moved for summary judgment, with the trial court siding with the defendants that the release and waiver barred Phelps’ claim of negligence.
Upon review, the Court of Appeals of Arizona, Division One, Dept. E, first reviewed the documents that Phelps had signed.
Specifically, he signed the following release:
“I HEREBY RELEASE, DISCHARGE AND ACQUIT … Firebird … from any and all liability, claims, actions, or demands, including but not limited to claim for death, which I may hereafter have because of my injury, death, or damage while on the track, … or when participating in any race activities.”
He also agreed to the following passage:
“I UNDERSTAND that participating in drag racing contains DANGER AND RISK of injury or death, … but, nevertheless, I VOLUNTARILY ELECT TO ACCEPT THE RISKS connected with my entry into the restricted area and with racing.”
As for the waiver, Phelps agreed to:
“HEREBY RELEASES, WAIVES, DISCHARGES, AND COVENANTS NOT TO SUE” (Firebird for)
“INJURY TO THE PERSON OR PROPERTY OR RESULTING IN DEATH OF THE UNDERSIGNED, WHETHER CAUSED BY THE NEGLIGENCE OF RELEASEES OR OTHERWISE, while the Undersigned is in or upon the RESTRICTED AREA, and/or competing … or for any purpose participating in such event.”
The document also stated that:
“EACH OF THE UNDERSIGNED expressly acknowledges that the ACTIVITIES OF THE EVENT ARE VERY DANGEROUS and involve the risk of serious injury and/or death and/or property damage. EACH OF THE UNDERSIGNED also expressly acknowledges the INJURIES RECEIVED MAY BE COMPOUNDED OR INCREASED BY NEGLIGENT RESCUE OPERATIONS OR PROCEDURES OF THE RELEASEES.
“EACH OF THE UNDERSIGNED further expressly agrees that the foregoing [Waiver] extends to all acts of negligence by the Releasees, INCLUDING NEGLIGENT RESCUE OPERATIONS.”
Arizona Revised Statutes section 12-556 (2003), allow “a person who operates a [racetrack] may require a [participant] to sign a motor sport liability release form as a condition of admission.” It also provides that the racetrack is “not liable for an injury to or the death of a [participant], unless the injury or death is a direct result of intentional misconduct or gross negligence.”
The appeal centered on whether a court could evaluate the defendant’s assumption of risk argument or whether that decision was supposed to be left to a jury.
The plaintiff’s argument centered on Article 18, section 5 of the Arizona Constitution, which mandates that “a defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury.”
However, the court noted that Article 18, section 5 has “never been applied in the context of an express contractual assumption of the risk.” In reviewing case law in other jurisdictions, the court noted that those courts that “have considered the issue have concluded that an express assumption of risk is a separate and distinct concept governed by contract-law principles.” Phelps v. Firebird Raceway, Inc., 1 CA-CV 03-0404
Ct.App.Ariz., Div. 1, Dept. E, 1/2904
Attorneys of record: (for plaintiff) Skousen, Skousen, Gulbrandsen & Patience, P.C., Mesa, By David L. Abney. (for defendant) Jennings, Strouss & Salmon, P.L.C., Phoenix, By Jay A. Fradkin and John J. Egbert.