286 F. Supp. 3d 321
N.D.N.Y.2017Background
- Plaintiffs (Kevin A. Ward, Sr. & Pamela Ward) sued driver Anthony W. Stewart for wrongful death after Stewart's sprint car struck and killed their son, Kevin A. Ward, Jr., during an ESS event at Canandaigua Motorsports Park on August 9, 2014.
- ESS and CMP required participants to sign liability releases (the ESS Release and the CMP Release); Stewart relied on those releases to seek indemnity and summary judgment on negligence claims.
- Record problems: Stewart’s ESS form bore a crew-chief signature and a different date than other drivers; Stewart’s CMP form omitted a paragraph present on drivers’ forms, and witnesses gave inconsistent testimony about pre-race signing practices.
- Plaintiffs argued New York General Obligations Law § 5-326 (voiding exculpatory clauses for fee-paying users of recreational facilities) invalidated the releases; Stewart argued Ward Jr. was not a protected “user” or was acting professionally.
- On cross-motions for summary judgment the court held § 5-326 applied (Ward Jr. was an amateur recreational user who paid fees), dismissed Stewart’s indemnity counterclaim, denied Stewart’s summary judgment on negligence (primary assumption of risk disputed), and denied summary disposition of pre-/post-impact damages claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do the Releases bar plaintiffs' negligence claims / entitle Stewart to indemnity? | Releases are invalid or inapplicable; facts cast doubt on signatures and versions. | Releases were executed by parties and cover drivers/members, so they bar claims and support indemnity. | Releases are unenforceable under GOL § 5-326; Stewart's counterclaim for indemnity is dismissed. |
| Does N.Y. GOL § 5-326 void the releases? | Ward Jr. paid fees to ESS and CMP and participated recreationally; § 5-326 protects him. | § 5-326 does not apply to participants or professional/for-profit racers. | § 5-326 applies: Ward Jr. was a fee-paying recreational user; releases void as against public policy. |
| Does primary assumption of risk bar negligence claims? | Defendant unreasonably increased risk by accelerating toward Ward Jr. during caution; triable fact issue. | Collision risk is inherent in racing; Ward Jr. assumed the risk, so no duty. | Denied as matter of law — factual dispute exists whether Stewart unreasonably increased risk during a caution; jury question. |
| Are plaintiffs' claims for pre-impact terror and conscious pain and suffering supported? | Video and eyewitness affidavit raise triable issues about perception of danger and brief consciousness/pain. | Forensic evidence shows no sufficient proof of consciousness or pre-impact terror; dismissal urged. | Denied — credibility/interpretation of video and other evidence present genuine issues for jury. |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment standard)
- Anderson v. Liberty Lobby, 477 U.S. 242 (summary judgment standard and genuine-issue test)
- Owen v. R.J.S. Safety Equip., Inc., 169 A.D.2d 150 (App. Div.) (GOL § 5-326 protects recreational racers; releases invalidated)
- Lago v. Krollage, 78 N.Y.2d 95 (Court of Appeals) (distinguishing users whose fees further the enterprise)
- Howell v. Dundee Fair Ass'n, 73 N.Y.2d 804 (Court of Appeals) (non-user status where presence was solely to work)
- Cummins v. County of Onondaga, 84 N.Y.2d 322 (Court of Appeals) (burden to prove consciousness for post-impact pain-and-suffering damages)
- O'Connor v. U.S. Fencing Ass'n, 260 F. Supp. 2d 545 (E.D.N.Y.) (applying Owen to invalidate waivers for competitive amateur participant)