*1 (1952). 383, 55 Absent requisite mutual assent between MXC,
McKennan and the Jurrens case is Jurrens,
inapplicable. See 1998 SD
¶
(An
implication
mutual assent cannot overcome direct evi- existed.) that no
dence mutual assent find
[¶ 27.] We that there was no exclu-
sive contract between McKennan and Further, deny-
MXC. the Board’s decision
ing request privileges Read’s for radiology any provision
was not based on set forth III of Bylaws,
Article and therefore
McKennan was in breach contract. It is
unnecessary for this Court to address the pertaining
issues language contract.
CONCLUSION
[¶ 28.] Based on the foregoing, we affirm
and remand this action to the trial court damages. a determination of Justice, MILLER, Chief and
AMUNDSON, KONENKAMP
GILBERTSON, Justices, concur. FITZGERALD, Circuit Judge, SABERS, Justice, disqualified.
Paul J. HOLZER J. Wal-
ters, Co-Guardians of the Person and Holzer,
Estate of Vernon Walter Appellants,
Plaintiffs SPEEDWAY, INC.,
DAKOTA a South Corporation,
Dakota and K & K In- Inc., Group,
surance Defendants and
Appellees.
No. 21065.
Supreme Court of South Dakota.
Argued March 2000. May
Decided
Thomas M. Frankman and Dana M. Van Evans, Davenport, Beek of Hurwitz and Smith, Falls, Dakota, Sioux South Attor- neys appellee K K& Insurance. *3 GILBERTSON, Justice [¶ 1.] This case arose from personal a injury accident at Speed the Lake County way, detached, when a race car’s wheel (Hol injured struck and Vernon Holzer1 zer). The circuit granted court both de fendants, Dakota Speedway, (Speed Inc.2 way) (K K K and & Group, Insurance Inc. K) summary & judgment pre- based on a accident signed by Holzer. We affirm. AND
FACTS PROCEDURE Speedway approximately is located Madison, three miles of southwest South Dakota. open Its stock car races аre public. accident, At the time of the grandstand, consisted a itself, pit racetrack a area inside the race- track, separate pit and a area outside the n track. The racetrack was mile oval track, dirt on which stock cars raced in the standard counter-clockwise direction. - pit [¶ A is an 3.] area at racetrack vehicles, where tow racecars and trailers parked prior are racing upon and leav- ing the track. This area also used for tune-ups, pre-race repairs oper- and other drivers, ations. Frequently mechanics and Gienapp David R. and H. William Diet- other pit congregate members of crews Arneson, rich of Issenhuth & Gienapp, August there.’ The area in on use Madison, Dakota, Attorneys South for of, an area and south outside of plaintiffs appellants. and edge southern the track. Schmidt, Spearfish, Harlan A. South Da- [¶ Holzer was serving as member of kota, Attorney plaintiffs appel- and August Bruce Bortnem’s crew on lants. during accident occurred when. David J. Vickers and James lap E. McMa- the ninth or tenth twelve-lap Boyce, Murphy, hon of sportsmen’s McDowell stock car feature race. The Greenfield, Falls, Dakota, Sioux South At- right away wheel and tire from a broke torneys appellee Speedway. car, airborne, Dakota race became and flew over appeal brought County Speedway This on behalf 2. Lake of Vernon is owned and con- co-guardians, Speedway, Paul Holzer and trolled Dakota Inc. The two (Holzer, Maijorie collectively), together Walters as will be entities referred this opinion Speedway. Vernon is in a coma. shaft, part axle had bly, to where Holzer was which hundred feet3 one from the mаin fractured and broken off pit area the official behind standing inside Thus, parts of portion of the axle shaft. consisting concrete barricades.4 a wall bell, brake attached axle and were still head, injuries to the He received severe to the tire and wheel when broke loose shoulder, and has been a coma- face and and struck Holzer. date the acci- since the tose condition Nordstrom, technical Arthur advis- dent. entering area 5.] Before inspector 5, 1995, late-model street stock August Holzer was racetrack sportsmen Speed- stock cars at by Speedway cars and requested officials way, Assump- in his affidavit the wheel of Liability, stated “Release Waiver *4 Indemnity Agreement.”5 off the bell assem- tion of Risk and and tire came because tire, traveling southerly inspectors, surveyors, in a and event underwrit- 3. The wheel and direction, ers, southeasterly propelled give were or consultants and others who recom- mendations, directions, straight-away edge at the of the over south the or instructions or track, parked double and over the row of engage in or risk evaluation loss control awaiting racecars the next race. regarding premises or activities EVENTS(s) the them, and each di- of their Ellingson Speedway manager 4. Ronald stated rectors, officers, agents employees, all and barricades, in his affidavit that seven concrete purposes herein referred to "Re- for as approximately high, each three feet served as leasees,” LIABILITY, FROM ALL TO THE a wall. "an di- This wall ran in east/west UNDERSIGNED, personal representa- his approximately south rection located 100 feet tives, assigns, heirs and next of kin FOR edge of the south of the racetrack.” It served DAMAGE, ANY AND ALL LOSS OR AND protect people "to and drivers from ANY CLAIM OR DEMANDS THEREFOR any oncoming anything or that came cars off ON ACCOUNT THE OF INJURY TO PER- the track.” SON OR PROPERTY OR RESULTING IN DEATH OF THE UNDERSIGNED ARIS- 5. The release stated: ING OUT OF TO OR RELATED THE being permitted IN of to CONSIDERATION EVENT(S), WHETHER CAUSED BY THE officiate, observe, for, compete, work or NEGLIGENCE OF THE OR RELEASEES EVENT(S) participate way any in the or OTHERWISE. any being permitted purpose to enter for 3. HEREBY AGREES TO INDEMNIFY (defined any any AREA RESTRICTED AND SAVE AND HOLD HARMLESS the authorization, requiring special area cre- Releasees and of each them FROM ANY permission any to or area dentials or enter LIABILITY, LOSS, DAMAGE, OR COST general to public which admission they arising of to have incur out or related prohibited), or OF UN- rested EACH THE the EVENTS WHETHER CAUSED BYTHE DERSIGNED, himself, personal rep- for NEGLIGENCE THE OR OF RELEASEES resentatives, heirs, and next of kin: OTHERWISE. Acknowledges, agrees, represents 1. and 4. HEREBY ASSUMES FULL RESPON- immediately upon that he has or will enter- OF SIBILITY FOR ANYRISK BODILY IN- AREA, ing any of such RESTRICTED and JURY, DEATH OR PROPERTY DAMAGE thereafter, inspect continuously the RE- will EVENT(S) arising out orof related to the he and STRICTED AREAS which enters he by the whether caused NEGLIGENCE OF that, agrees any further warrants if at and RELEASEES or оtherwise. time, he about AR- or RESTRICTED acknowledges 5. HEREBY THE AC- unsafe, anything EAS and he feels to be EVENT(S) TIVITIES OF THE ARE VERY immediately advise the will officials such DANGEROUS and involve risk of seri- and will leave the RESTRICTED re- and/or injury property ous death EVENT(s). and/or participate to further in the and/or fuse RELEASES, WAIVES, damage. Each THE UNDERSIGNED 2. HEREBY DIS- expressly acknowledges CHARGES, also INJU- AND COVENANTS NOT TO RIES RECEIVED MAY BE COMPOUND- participants, racing promoters, SUE the sociations, as- ED OR INCREASED sanctioning organizations BY NEGLIGENT any or thereof, RESCUE OPERATIONS OR PROCE- operators, subdivision owners, track track drivers, officials, owners, DURES OF THE RELEASEES. car crews, agrees personnel, any that this and persons any HEREBY Release rescue AREA, Assumption promoters, Liability, Waiver of and sponsors, RESTRICTED Risk advertisers, premises Indemnity Agreement extends to all acts owners and lessees Releasees, EVENT(s), premises negligence by used conduct the INCLUDING wishing Ail complaint individuals to enter the Dakota. South alleged neg- required pay entry area were fеe ligence and disregard and against reckless pro- release form. This document life, safety and health of signees vided that the covenant to sue Holzer and negligent inspection and owners, the track their insurers and others duty breach parties third against K & release, waive, discharge them from K. Both Speedway and K K& filed mo- liability all “for any damage, and all loss or tions for summary judgment, which the any claim or demands therefor on trial court granted. appeals Holzer now injury person account of property or raising review, several issues our one resulting of the undersigned death which dispositive: events, out of or arising related genuine Do issues of material fact exist negligence whether caused as to whether the waiver and release releasees otherwise.” This release was signed by Holzer was valid and enforce- any condition to allowed into “re- being able, thus relieving Speedway and its area,” pit, stricted such as applied insurer, K K liability. & from to anyone competing, officiating, observ- *5 for, ing, working participating in races or STANDARD OF REVIEW speedway. The form defines re- “any requiring special stricted area as area [¶ 8.] Our standard of review a circuit authorization, credentials, permission grant or to court’s of a motion for- summary any enter or area by to which admission judgment is well settled. As recently we the general public prohibit- restricted Land, stated Kimball Investment Ltd. ed.” At the bottom of the form are lines v. Chmela: allowing eighteen signatures. Printed Summary judgment is authorized “if the on signature capitalized each line in bold depositions, pleadings, answers to inter- letters, is “I HAVE READ THIS RE- rogatories, file, and admissions on to- signed LEASE.” Holzer this document gether affidavits, with the if any, show- top literally capitalized of these words. that there no genuine to any issue as He previously signed had agree- the same fact, moving material and that party 14, 29, ment on July June 1995 and is entitled judgment as a matter of accident, K, [¶ At the time K of the & 15-6-56(c). law.” SDCL We will affirm an underwriting agent for Transamerica only when there no genuine are issues of Group, Insurance provided liability insur- legal material fact and the questions coverage ance K & Speedway. K had correctly have been Bego decided. v. nothing inspection. do with A vehicle Gordon, (S.D.1987). 801, 407 N.W.2d 804 responsible official was for in- All reasonable inferences drawn from specting racecars each before race for the facts be viewed in favor of must safety precautions. Baldwin, non-moving party. Morgan v. July 27, 1998, On 783, (S.D.1990).
[¶7.] Holzer 450 filed N.W.2d 785 The complaint against Speedway and K & K in burden is moving party on the clearly Circuit, County, Fourth Judicial Lake an any genuine show absence of issue of TERMS,.UNDERSTAND NEGLIGENT RESCUE OPERATIONS and UNDERSTAND ITS is intended to be as broad and inclusive аs THAT I HAVE GIVEN UP SUBSTANTIAL permitted by IT, the laws of the Province or RIGHTS BY AND SIGNING HAVE Event(s) State in which conducted SIGNED IT AND FREELY VOLUNTARILY is/are any INDUCEMENT, portion and that if thereof is held inval- WITHOUT ANY ASSUR id, shall, agreed it is that the balance not- ANCE OR GUARANTEE BEING MADE TO withstanding, legal continue in full ME force AND MY SIGNATURE TO BE A INTEND and effect. COMPLETE AND ÚNCONDITIONAL RE I HAVE READ THIS RELEASE AND WAIV LEASE OF LIABILITY TO THE GREAT ALL LIABILITY, ER OF ASSUMPTION OF (emphasis RISK EST EXTENT BY ALLOWED LAW. AGREEMENT, original).
AND INDEMNITY FULLY 792 by signed The Holzer document judg- [¶ 13.] an fact and entitlement
material more separate document. As will be law. v. was Wilson ment as a matter 207, 212, fully developed, this concern is connected Co., 157 Ry. N. 83 S.D. Great knowledge (1968). and voluntari- 19, with claims 21 N.W.2d ness. ¶ 7, 289, 6, (citing 292 2000 SD ¶ ancients, Rachetto, 51, 8, of the SD Since the time
Mattson v. racing on foot and (quoting Shuck v. Per records exist of 816-17 ¶ 6, enlarged Century The 20th has 577 N.W.2d animal. County, 1998 SD kins 586)). racing competition to that of “Summary judgment scope will be rac- any dangerousness affirmed if there exists basis which motor vehicles. ruling.” automobiles at the fastest support ing the trial court’s numerous would Game, speeds and Parks is obvious. such Dept., possible v. Fish SD Wolff ¶ 23, 32, instаnce, thing as an there is no such SD 544 N.W.2d race. The one inherently Fire Marine Ins. v. safe auto closer (citing Paul & St. (S.D.1994)) S84, the risk of greater is to the action the Schilling, 520 N.W.2d added). injury placed death. Holzer’s duties (emphasis track, edge
him at the close to AND ANALYSIS DECISION racing action. recognized have that releases [¶ 15.] We genuine material Do issues of signed typical such as the form Holzer are exist the release fact as to whether racing industry. used in the See of those signed valid and en- Beauchene, Lee forceable, relieving Speedway thus *6 (S.D.1983) Nadel, (citing G. Anno- Andrea insurer, K K & from liabili- its tation, or Death Liability Injury ty. for Automobile Race Participant or Horse argues Holzer the release violates [¶ 10.] (1982) Track, 13 at Public A.L.R.4th 623 public policy and therefore is ineffective Nadel]); Randy see J. also [hereinafter He also contends and unenforceable. Annotation, Sutton, Validity, Cоnstruc- summary judg- granting the motion for tion, Agreement Exempting and Effect of improper
ment was
because whether
Facility
Li-
Operator Amusement
from
re-
knowingly
voluntarily signed
ability
Injury
Personal
or Death of
jury.
question
is a
of fact
We
lease
Patron,
(1998)[hereinaf-
5th 513
54 A.L.R.
arguments.
disagree with both
Lee,
plaintiff
In
stock car
Sutton].
ter
Policy
11.] A. Public
[¶
injuries
car
driver sustained
when his
flipped,
A
re-
a hole in the track and
involving
review of cases
struck
him
activity
leaving
paralyzed
es-
from the waist
concerning
leases
recreational
(1)
general
anticipa-
Upon entering
down.
the racetrack before
tablishes two
trends:
accident,
to
tory, pre-injury
required
are much more
Lee was
a
releases
affirming
In
the cir-
likely
agreement.
to be deemed valid and enforceable
grant
summary judgment
a
they
separate
when
are written on
docu-
cuit court’s
part
separate
speedway,
written
we stated absent
ment and not as
the defendant
(2)
directive,
inherently
legislative
“a
these releases have
material and
the more
dan-
contrary
activity,
they
attacks that
are
gerous
risky
or
recreational
withstood
Lee,
likely
public policy.”
release will
6. Public
as established
However,
lessness,”
place
[¶ 16.]
releases
that
Speedway’s
conduct
willful
or
negligence
are construed
cover
coverage
release,
outside the
of the
ques
intentional
torts are not valid and are
tion of fact must exist that Speedway acted
against public policy.
(citing
Id.
Winter-
disregard
with a “conscious
of an unrea
Wilcom,
Md.App.
stein v.
293 A.2d sonable and
substantial risk
serious bod
53-9-3).
(1972);
SDCL
“Willful and ily
to another.” Id.
harm
something
wanton misconduct
more
Although Holzer
raises this
ordinary negligence
than
but less than de
claim,
legal
the record does not contain
liberate
intentional conduct.” Id. at 829
any supporting
showing
facts
Speedway
Rohde,
(citing
66 S.D.
Granflaten
recklessly or consciously disregarded any
(1938)).
alleged
risk
substantially greater
than that
par
had become detached from a car
is necessary
which
to make his conduct
race); Kellar, 509
ticipating in a
at
N.W.2d
negligent.
(stating plaintiff
96
allege
failed to
defen
162,
v. Lloyd,
Kellar
180 Wis.2d
509 dants knew or had reason
of
to know an
87,
Thus,
(Ct.App.1993).
N.W.2d
95
for
unreasonable risk of harm her
flag
prevail
Holzer to
theory
under a
of “reck
ging workers
of
of
design
because
Inc.,
93,
providing
inherently
of
liability
limited
Sports
SD
men’s
1999
dangerous sporting
99,
events. See
ch. 42-
SDCL
v.
Corp.,
525 and Nielson AT & T
1999 SD
providing
immunity
11
engaging
limited
structure at
station
public
when
policy
violate
injured).
tory releases
where she
a matter
interest
they involve
alleged
has Holzer
[¶ 20.] Nor
large
at
or the state. Seaton v.
public
know
had reason to
knew or
Inc., 400 Pa.Su-
Speedway,
East Windsor
from
in
race car
which
any defects
(1990).
1380,
134,
1382
per.
582 A.2d
See id. The
broke loose.
tire
wheel and
However,
in
public
interest
recreation
when it stated
court was correct
circuit
facility
an es-
typically
providing
involves a
the file
“[u]pon searching
opinion,
its letter
n
Sutton, su-
public
service. See
sential
willful,
or intentional
I
no
wanton
can find
matters of interest
pra at 528. Other
place an
of fact
issue
which would
conduct
employer-
“the
public or state include
it out of the release
taking
question
service, pub-
relationship, public
employee
Lee,
at
829.
area.”7
337
See
carriers,
hospi-
utilities,
lic
common
complained
conduct
The
[¶21.]
Seaton,
1382 (citing
A.2d at
tals.”
582
that occurred are
of accident
type
Inc.,
Enterprises,
252
v. Deseret
Leidy
by, and
contemplated
within
clearly
(1977)).
164,
162, 381 A.2d
167
Pa.Super.
failed to
release. Holzer has
scope
a claim
evidentiary support for
provide any
signed
this
The
place
that would
of willful or reckless acts
public
a matter
does not involve
case
the coverage
outside
Speedway’s conduct
interest,
rather,
private
agreement
but
of the release.
Such a release has
between individuals.
little,
the release
argues
impact
Holzer also
any, negative
'if
on the
very
public
involves a
policy because
violates
v. Reading
general population. See Grbac
do not
public
in recreation. We
Co.,
interest
Inc.,
F.Supp.
521
1355
Fair
Dakota;
releases
Besides South
agree.
(W.D.Pa.1981) (concluding “a release in an
races have been
participants in automobile
participation in
agreement concerning
public
any
and found not
violate
upheld
any
automobile race does
contravene
jurisdictions.
See
policy
a number
law”).
dealing
are
with
policy of the
“We
cases);
Nadel,
(citing
Gore v.
supra
635
public par-
fairly
segment
narrow
Inc.,
F.Supp.
Raceway,
Tri-County
relatively dangerous sport-
in a
ticipating
(M.D.Ala.1974)
(citing Doster v.
public
as a whole
ing activity.
general
Inc.,
Ga.App.
Nalley,
C.V.
minimally
Tope,
affected.”
(1957);
v. New Bre
Seymour
S.E.2d 432
utility
at 764. Nor does this case involve
Inc.,
Speedway,
App.2d
31 Ohio
men
supplies
quasi-public entity
or other
(1971);
v. Keden
N.E.2d 111
Theroux
Id. at
essential services.
Assn., 50 Misc.2d
burg Racing
*8
participated
Speedway
in
25.] Holzer
[¶
789;
Sports Associ
N.Y.S.2d
Lee v. Allied
automobile races as a form of recreation—
ates,
(1965);
349
795 racing nonpaid for the Bortnem of this claim holding volunteer mindful of our Grbac, Thus, F.Supp. 521 at team. 1355. accepts “one who a contract is conclusively compelled in any way Holzer was not to presumed to know its contents and to as enter the area. See Gervasi them, fraud, sent in the absence of Inc., Raceway, Holland 40 A.D.2d misrepresentation or other wrongful act (N.Y.App.Div.1972) 334 N.Y.S.2d 529 another contracting party.” LPN Trust v. (rejecting argument that a ¶ release was Farrar, 97, 13, 1996 SD 552 N.W.2d public policy unenforceable as violative of (citing Lockhart, 799 Flynn v. racing
when
mechanics were not employ- 743,
(S.D.1995) (quoting
746
17A Am.
racetrack,
they
ees of the defendant
(1991))).
§
Jur.2d Contracts
participate
could have refused to
in the
[¶ 29.] Holzer
given
claims was
release); Gore,
sign
race
toor
“meaningful
no
opportunity
read the
(noting
at
F.Supp.
“participation
agreement
signing
before
[it].” He relies
in automobile
and other sporting
races
heavily on Eder v. Lake
Raceway,
Geneva
voluntary
is a
undertaking.”).
events
If
187 Wis.2d
429 (Ct.App.
enjoyment
Holzer’s
recreational
was
1994) for this contention. Eder
race,
involved
viewing
from
achieved
he could
who,
spectators
two
required
being
after
specta-
have entered the grandstands as a
to.
a release and waiver of liability
subject
tor and would not have been
before
entering
raceway,
injured
were
he signed
a member
aof
become
when a motorbike left the racetrack and
pit crew.
struck each of them.
davit Lee, (citing N.E.2d at Bar- fact.” 209 333 required sign waiver pit workers were 35, 33, 18 Conragan, 302 Mass. people rett v. there are several form and “that 369). Here, however, there are no N.E.2d area at waiting gain entrance repre- any indicating facts made only thing on Affi- The same time. the him, represen- false entering gate let alone time the sentations mind at the of ant’s attempt signing. is made to what he was There no tations as rаcing and therefore that waiver form.” no evidence and no contention to read the aforementioned is also However, in the rec- the sheet was printing there is no evidence the release cov- opportuni- the was denied concealed from Holzer. ord Holzer ered or otherwise may 332; Seaton, have any line that A.2d ty step out of 582 at Id. at see also had he so the release plaintiff existed and read did not make an (finding 1383 in rec- no evidence desired. There is that the he was allegation signed release it. sign forced to While ord he was hidden so as to consti- folded or otherwise fraud). waiting at people” may have been “several tute area, there same time to enter This is also not a case where [¶ 34.] workers were denied no evidence he a roster or signing Holzer was told was to read the release оr ask opportunity of instead a release. some other document Lee, 209 N.E.2d at questions about it. See (not Johnson, Compare at 698 “[although people the line of (stating 332 was told she needed to ing Johnson at on which the release sheets the table play team roster before she could on the was ‘rolling along,’ located was there were team, when the ac softball document was op- no that Lee was denied the evidence release). tually a Nor was disclaimer had so portunity to read the release he inconspicu liability language hidden desired.”). City ously in the release. See Baker v. Seattle, 405, 1. Misrepresentation 79 Wash.2d 484 P.2d 406- (1971) (holding 07 release invalid when dis “[a] This Court has held [¶ 33.] claimer was buried the middle of the if fairly not made and is invalid release is conspicuous). agreement and was misrep was of the instrument the nature presented tо Holzer contained its release was resented or there other fraudulent language capital critical in block letters in Johnson, 514 overreaching conduct.” any print. bold “In the absence con Paterek, (citing N.W.2d at 697 representations as to cealment or false Trust, 344); LPN see also SD it of the release could be contents ¶ 13, 552 at 799. Other courts also matter law that the [a] ruled as of fraud or breach look evidence Lee, procured by fraud.” was not trust: Although N.E.2d at 333. unfortunate In the of fraud or a relation absence explain is not able to his intent par- between trust and confidence release, we have not discovered signing ties, ordinarily can not avoid releasor indicating any the record he evidence upon ground of a release effect misled, signing coerced or forced into signed paper that at the time he the fоrm. contents, its but did not read it or know 2. Comprehension it. another said relied on what about Seaton, (citing Am. Paul Holzer states A.2d at 1383 (1973); Ray § affidavit that Holzer “was of lower intelli Jur.2d Release Ackler Indus., Inc., unsure whether Pa.Super. gence [Paul was] mark (1988); the release or Standard could even read [Holzer] 551 A.2d 294-95 *10 implications of what he Empire Blind v. American understand] Venetian Co. (1983)). Co., 300, states signing.” A.2d 563 was Paul Holzer further Ins. 503 Pa. 469 in in question there is fraud his affidavit: “The whether
797
poor
Vernon was a
His
student.
read
AND INTEND MY SIGNATURE TO
ing comprehension
very
was
low. The
BE A COMPLETE AND UNCONDI-
grade
highest
English
he attained
TIONAL RELEASE OF ALL LIABIL-
Literature was a D+
ninth grad
as a
ITY TO THE GREATEST EXTENT
passed
er....
through
Vernon was
BY
ALLOWED
(capitalization
LAW.
school, although I do not believe he
original).
graduated
should have been. He
105th
In addition to
statement,
this
printed on
in a
days
class
110. He had 14
each signature line in
capitalized
bold
let-
always
absences as a senior ...
I
took
ters,
“I
HAVE READ THIS RE-
care to rеad
him
things
explain
LEASE.”
signed
his name direct-
writing
that he
insure
understood
ly
top
on
these words.
read,
comprehension
what he
as his
poor.
This
ambiguous.
release
not
It
Initially,
we must
direct,
note
simple
and cannot be “understood
language
signed by
the release
Hol-
in more than one sense.”
To hold
rea
unambiguous.
zer is
“Whether the lan
person
sonable
would not realize
sig
guage of a contract is ambiguous is ordi nificance of the release signed by Holzer
narily
question
of law.” Enchanted
ignore
would be to
the unambiguous text
Buskohl,
Doll
World
Museum
398 of the document.
v. St.
Haines
Charles
149,
(S.D.1986)
N.W.2d
151
(citing Jensen
Inc.,
Speedway,
572,
(8th
874 F.2d
575
International, Ltd.,
v. Pure Plant Food
Cir.1989);
Doolin,
see also Provence v.
261,
(S.D.1979)).
274 N.W.2d
The lan
271,
Ill.App.3d
46 Ill.Dec.
414 N.E.2d
guage
may
a contract
be said to be
(1980)
(ruling the form and lan
ambiguous when “it is reasonably capable
guage
agreement
of an
stating “WAIVER
being
understood in more than one AND RELEASE FROM LIABILITY
Ponderosa-Nevada,
sense.”
Id.
(citing
AGREEMENT,”
AND INDEMNITY
“is
Venners,
Inc. v.
90 S.D.
243 N.W.2d
conspicuous
so
that reasonable men could
(1976);
Co.,
Jones v. American Oil
87 not reach different
conclusions
the im
384, 387,
(1973)).
S.D.
port and significance of the instrument
person
Johnson,
where a
knowingly
willingly
In
ruling
this Court in
document.”).
signed the
genuine
permit par
issue of material
“To
fact existed as to
ty,
contract,
when sued
whether Johnson
on a written
sign-
was aware she was
release,
ing a
admit that
signed
deny
it but to
it
recognized “the
did
plain
expresses
not contain a
the agreement
and clear
he made or
statement
directly
signature
him
allow
to admit that he
signed
lines.” 514
but
before
us,
at
did not read it or
stipulations
case before
know its
release did contain a
would
unambigu-
absolutely destroy
clear
the value of all
¶
ous
immediately
Trust,
97, 13,
statement
sig-
before the
contracts.” LPN
1996 SD
provides:
nature line. The statement
factual result. untarily, knowingly chose we are sensitive agreement. While MILLER, Justice, Chief concurs Holzer, facing now circumstances part. in part in and dissents sport placed “doubtlessly that knew result). SABERS, in (concurring Justice spectators.” pаrticipants risks both agree I with Chief Justice 48.] would [¶ volunteer crew Id. He had worked as a if the first writing this were such Miller’s other occasions member on at least two LIABILI- AND WAIVER OF RELEASE Ellingson stated prior to his accident. TY, AND IN- OF RISK ASSUMPTION Holzer was “relr although his affidavit that that DEMNITY AGREEMENT form Ver- circuit,” racing atively a new man him, Unfortunately for signed. non buying some- “looking Holzer had been third RELEASE fact is that this deeply getting “was body’s [race] car” and that OF LIABILITY form AND WAIVER in racing.” interested signed. Vernon racing not an indi- Automobile numerous driv- vidual It involves sport. MILLER, (concurring Chief Justice staff, ers, and is finan- support pit crews dissenting part) part and the attendance of cially supported by generally agree requiring I spectators. paying substantial number sign a participants to reasonable, require car race It nor realistic policy. public liability is not violative individually test each management
799
However,
grant
it
improper
was
to
sum-
to gain entrance
pit
area at the
mary judgment on the
issue
Holzer’s
only
same time. The
thing on [Sanner’s]
voluntariness,
knowledge
genu-
because
at
mind
the time of entering
gate
the
is
presented
ine issues of material fact were
racing and therefore no attempt is
made
the court.
read the aforementioned waiver form. To
the best of
knowledge,
[Sanner’s]
this is
Initially,
[¶ 50.]
it must be noted that
only
way
pit
into the
area before enter-
summary judgment
usually
is
not suitable
ing a race.”
involving
actions
state of mind. Wilson
Co.,
207, 212,
Ry.
v. Great N.
83 S.D.
157
[¶ 53.] The waiver form and Sanner’s
(1968).
also,
22
N.W.2d
See
Ahl v.
affidavit,
together with common knowl-
Arnio,
(S.D.1986).
N.W.2d
edge, could well lead a factfinder to con-
“[Sjurmise
a party
that
will not prevail
clude that Holzer unknowingly or involun-
upon trial is not
grant
sufficient basis to
tarily signed the
part
waiver form as
[summary judgment] on issues which are
pressure-filled routine of gaining
access
sham,
not shown to be
frivolous
so
pit
area.
pieces
These
of evidence
unsubstantial that it is
obvious would be
show that Holzer was among a steady
Wilson,
to try
futile
them.”
at
S.D.
stream of people waiting
pit
to enter the
21;
also, Ahl,
at
N.W.2d
see
night.
area that
at
appeal,
533. On
we are not to
[¶
As
fact,
out,
54.]
Sanner’s
points
decide the
affidavit
only
issue
whether one
Wilson,
important
211,157
exists.
signing
83 S.D. at
ramifications of
waiver
were not discussed or even men-
participants
tioned to those
in line
waiting
The record
contains several items
Instead,
to enter.
they were all handed
raise
legitimate
factual issue wheth-
form,
the roster-like
told to print
sign
and
er Holzer knowingly or willingly signed
name,
their
and then required
pay
a fee.
First,
itself,
the waiver.
the waiver form
situation,
In this
thing
the last
on the mind
which
attached to
this
writing,
confus-
of these entrants was understanding their
ing
misleading.
and
At the bottom half of
legal rights. Rather, they were focused on
the rоster-like form there are 18 lines
getting
prepare
into the
area to
for the
containing the same
signatures.
number of
Surely,
race.
when faced with
choice
signer
Each
name,
print
asked to
blindly
signing
pro-
the roster-form and
states,
sign his name
a provision
over
ceeding
area,
on into the
signing
or not
release,’’and
“I have read this
list his
jeopardizing
and
qualification
of his
printed name,
duties. Holzer’s
signature,
race,
team to
participant
opt
would
“# 2” appear
and
on the second
line
the former.
waiver,
followed
signa-
sixteen other
tures.
Moreover,
the format of the waiv-
Next,
the record contains the affi-
form clearly,
er
to de-emphasize
served
its
Sanner,
davit of Jay
who
important
Indeed,
has attended
legal effect.
it could be
races,
many automobile
including races at more
petition
likened to a
or a roster
County Sрeedway,
(forms
Lake
and has entered
that do not require an
individual
and worked in the
area for
pause
various
appreciate
race
consequences
car drivers.
document)
Based on his familiarity with signing such a
than a legally
process
gain
utilized to
entrance to
binding
release of liability.
itsWith
small
pit area of
County
Lake
Speedway,
print,
single-spaced paragraphs,
blank
that, “upon
testified
gate,
entrance to the
lines
signatures
for numerous
at the bot-
waiver form
tom,
is handed to the individual
easily
reader could
confuse the form
entering
pit, they
print
are told to
and with a
insignificant
document of
legal ram-
in,
and then pay
entry
ifications,
their
fee.” In
especially when it
presented
addition, “there are
people
several
waiting
explanation.
without
It would
been a
have
(8thCir.l989) (providing
874 F.2d
process
appropriate
meaningful
more
572/
forms).
aTo
waiver
examples of similar
an individual
given
been
person
had each
*13
function, the
reading
limited
person with
waiver.
and
release
just
well been one
have
as
form could
ap-
participants
That none of
[¶
as
legalese such
dialogues, with
Plato’s
they
what
significance
preciated the
of,” “cove-
“indemnity,” “in consideration
the waiver
from
is evident
signing
were
sue,”
in
“hold harmless”
not to
nants
participants
it directed
form itself. Where
poor reading
capital letters. Holzer’s
bold
“duties,”
including
everyone,
to list their
large
crowd
ability, combined with
numbers,
pre-
which
Holzer, merely listed
to the
gain
to
access
participants waiting
the car
number of
sumably referred
him, surely could have
pit area behind
a
Such
they worked.
team
on whose
signed
where he
a situation
created
the contention
response .supports
vague
peоple
just
the flow of
keep
to
waiver form
or the
confusing
form was
that either
least,
a
very
creates
going. At
it, or
signing
hurried into
signers were
fact.
of material
genuine issue
both.
majority
that “there
The
states
type
at
this
Any spectator
[¶57.]
Holzer was
in the record that
no evidence
parade of
certainly
seen
event has
step
to
out of
opportunity
denied the
any
wait-
race cars
trailers
pulling
vehicles
may
and read-the
have existed
line that
to the race.
prior
area
to enter the
ing
what?
had he so desired.” So
release
form, together
waiver
format of the
The
Speedway of-
it show that
Neither does
partic-
under which
the circumstances
with
it.
step
to let him
aside
read
fered
to
required
as Holzér were
ipants such
opinion further concludes
majority
The
knowing
how
about
sign,
question
create a
no
in the record
that
evidence
“[t]here
liability
a
voluntary such
a
to
it.” Such
was forced
specta-
Like the line of
could have been.
realities
is out of touch with the
conclusion
in
v.
waiting
get
to
into the race Eder
tors
above,
noted
of the situation. For reasons
Inc.,
Raceway,
187 Wis.2d
Lake Geneva
not the same scenario
clearly
this is
596,
(Ct.App.1994),
there
523 N.W.2d
Haines,
presented in
where the court
opportunity for Holzer
meaningful
nowas
functionally
opined
plaintiff
that if the
was
signing.
agreement before
to read the
illiterate,
to have someone
duty
it was his
intended
[Speedway]
cannot
“We
believe
signing
him
it.
release to
before
up
progres-
read the
would hold
that entrants
ASSUMPTION RISK AND INDEMNITY EVENT(S) officiate, observe, any in the way work or permitted participate to compete, for. IN CONSIDERATION boina authorization, (defined requiring as area any any special RESTRICTED AREA being any to enter tor permitted potpose or credentials, EACH prohibited), is restricted or permission general pubBc any to enter or area to which admission or heirs, kin: himself, and next of UNDERSIGNED, personal representatives, lor his THE OF AREAS, Immediately any of Birch RESTRICTED upon he has wiB represents or Acknowledges, agrees, entering that, agrees and warrants thereafter, which he enters and he further continuously Inspect RESTRICTED AREAS and wilt unsafe, Immediately wffl advise to be he time, anything or AREAS and feels about RESTRICTED any he Is in if EVENT(s). offc.,13 further In the participate and/or the RESTRICTED AREAS refuse to will leave of 6uch and racing participants, TO the promoters, AND COVENANTS NOT SUE RELEASES, WAIVES, DISCHARGES 2. HEREBY owneis, officials, drf- owners, car thereof, track operators, or any subdivision track associations, organizations sanctioning advertisers, AREA, owners and promoters, sponsors, any RESTRICTED crews, any vets, personnel, rescue persons underwriters, consultants Inspectors, surveyors, event EVENT(S), premises end to conduct used premises lessees of or activities directions, evaluation losа control recommendations, In risk engage or Instructions who give and others at) directors, officers, purpos- for the thorn, employees, agents their and each regarding premises EVENT(S) UNDERSIGNED, representatives, personal THE "Reléaseos," LIABILITY,TO ALL FROM referred es herein assigns, DAMAGE, ON DEMANDS THEREFOR OR AND ANY CLAIMOR Iwlra, LOSS ANY AND ALL next of tdn FOR ARIS- THE IN DEATH OF UNDERSIGNED PROPERTY OR RESULTING THE PERSON OR OF INJURY TO ACCOUNT *15 OR OF RELEASEES THE THE WHETHER CAUSED BY NEGLIGENCE EVENT(S), TO OF OR RELATED THE ING OUT OTHERWISE. ANY them end each ot FROM AND HOLD HARMLESS Rotéaseos AND SAVE TO INDEMNIFY AGREES 3. HEREBY BY CAUSED or to the WHETHER DAMAGE, arising EVENT(S) Incur out of related LIABILITY, OR LOSS, they may COST OR OTHERWISE. OF THE RELEASEES THE NEGLIGENCE INJURY, OR DAMAGE OF DEATH PROPERTY FOR ANY RISK BODILY RESPONSIBILITY ASSUMES FULL A. HEREBY or olheiwtee. by OF RELEASEES whether caused the NEGLIGENCE EVENT(S) out of related arising risk of EVENTfS) OF VERY DANGEROUS and involve the THE ARE ACTIVITIES acknowledges'that THE S. HEREBY damage. Each THE UNDERSIGNED also injury property expressly acknowledge» and/or death and/or aerious PROCE- BY RESCUE OPERATIONS OR BE OR INCREASED NEGLIGENT MAY COMPOUNDED INJURIES RECEIVED OF THE RELEASEES. DURES Agreement Rtek entendí UatNty, and Waiver agrees Assumption Indemnity Bits Release a HEREBY Releasees, broad RESCUE OPERATIONS and Is Mandad be at INCLUDING NEGILGENT acts ot nagHgence Evontfs) arty por- In Is/are conducted and that K permitted laws the Province State which and Inclusive as (otea sha», Invalid, notv/tthstaraing, legal te lhat the balance continue tul and eflecL agreed It Is tion Itereof held LIABILITY, OF ASSUMPTION OF RISK AND INDEMNITY I READ THIS AND WAIVER AGREEMENT. HAVE RELEASE TERMS, I UP BY HAVE GIVEN SUBSTANTIAL RIGHTS SIGNING Fuav UNDERSTAND ITS UNDERSTAND THAT IT. VOLUNTARILYWITHOUT ANY ASSURANCE OR GUARANTEE HAVE IT FREELY AND INDUCEMENT. AND SIGNED A OF ALL ME MY SIGNATURE TO BE COMPLETE AND UNCONDITIONALRELEASE MADE TO AND INTEND BEING ALLOWED BY LAW. LIABILITYTO THE GREATEST EXTENT MUST ALL SECTION BE COMPLETED.