MEMORANDUM OPINION
This case is before the court on the cross motions for summary judgment filed by the plaintiff and the defendants, pursuant to Rule 56 of the Federal Rules of Civil Procedure. The Plaintiff, Joan M. Rhea, administratrix of the estate of Ricky Deward Rhea, deceased, is a resident of the State of Tennessee. She claims that by failing to design, construct, and maintain the race track in a reasonably safe condition, the defendants acted negligently and that as a result of their negligence, the plaintiff’s decedent was killed on September 27, 1981. The plaintiff seeks a judgment against the defendants, Jointly and severally, in the amount of FIVE HUNDRED THOUSAND DOLLARS ($500,000). The defendants, Horn-Keen Corporation, Clyde Horn, Jerry Horn, and Walter Keen, are residents of the Commonwealth of Virginia. They assert that because the plaintiff and the plaintiff’s decedent husband executed a “Release and Waiver of Liability and Indemnity” agreement before the decedent’s participation in the race on September 27, 1981, such release bars any cause of action which the plaintiff otherwise may have had against the defendants. This Court has diversity jurisdiction over the present cause of action, pursuant to 28 U.S.C. § 1382(a), (c).
I. ■ FACTUAL SUMMARY
The facts in this case essentially are undisputed. The plaintiff’s decedent on various occasions participated in the drag racing events which were held at the defendants’ property known as the Richlands International Dragway and located in Tazewell County, Virginia. The plaintiff and *689 the plaintiff’s decedent voluntarily signed a “Waiver and Release” form prior to but specifically related to the racing event of September 27,1981. 1 The Plaintiff alleges: that while participating in the race, the decedent experienced mechanical failure of his race ear, and as a result, his vehicle proceeded off the dragway, up and over the protective curved embankment at the end of the dragway; and that his ensuing accident resulted in his death.
The Plaintiff contends that because the defendants improperly designed, constructed, and maintained their race track, they failed to provide reasonably safe conditions at the track: Thus, their negligent acts caused the death of the plaintiff’s husband. On the other hand, the defendants deny these allegations and further argue that before the event in question, both the plaintiff and the decedent voluntarily entered into a waiver and release agreement with the defendants: Thus, such an agreement bars the plaintiff’s cause of action.
II. THE ISSUES AND THE RULINGS OF THE COURT
Under the
Erie
doctrine, a federal court exercising diversity jurisdiction must apply the rules determined by the conflict of laws of the forum state.
Erie Railroad Co. v. Tompkins,
The plaintiff alleges that because the release in question was not under seal and was not supported by valuable consideration, it was an invalid instrument. In support of her argument, the plaintiff cites
Seymour et al. v. New Bremen Speedway, Inc., et al.,
“The question of the adequacy of the consideration given for the release is undoubtedly a material one.”
Bedser v. Horton Motor Lines, Inc.,
The Doganieri Court provides a frame of reference by which this court may examine this issue, by writing:
Failure of consideration may ... invalidate a contract, since it is a fundamental rule of the law of contracts that in order for an agreement to be enforceable, it must be supported by consideration____ The consideration necessary to support a contract [,however,] need not be equal to what is being exchanged as long as it is *690 of some value____ [T]he general rule [is] that a release of an obligation must be based upon a consideration deemed valuable in law.
Doganieri v. United States,
First, the court reasons that since the release was executed without any fraud or misrepresentation
(see supra
note 1), it was supported by sufficient consideration when it was executed upon the condition that the defendants would grant the decedent the right to participate in the racing event of September 27, 1981: Such a release was valid and binding on the Plaintiff and the decedent.
See e.g.: Northwestern National Insurance Co. et al. v. Cohen,
Second, the court uses the doctrine of equitable estoppel as a basis to determine that the release in question was supported by sufficient consideration. More specifically, the plaintiff is estopped from raising the issue of the adequacy of consideration as a ground for setting aside the release. All elements of an estoppel by conduct are present in this issue. The plaintiff and the decedent’s affirmative act of signing the release agreement induced the defendants to allow the decedent’s participation in the racing event of September 27, 1981. The defendants’ reasonable reliance upon that affirmative act, however, altered their position to their detriment. Had the defendants realized, for example, that the plaintiff never intended to honor the very essence of that release, they never would have entered into that contract with these parties: Their reasons would be based on the fact that without a waiver and release agreement, their liability would increase so much that sponsoring such racing events would become financially prohibitive.
The Virginia Supreme Court discusses an estoppel by conduct in the following terms:
A waiver or release ... without consideration may sometimes be sufficient when one has thereby been induced to alter his position to his prejudice. “In order for there to be an estoppel by conduct, the party sought to be estopped must have caused the other party to occupy a more disadvantageous position than that which he would have occupied except for that conduct.” [Citations omitted],
“Cases may be suggested ... where the promisor should clearly be held discharged. Suppose the promisee informs the promisor that performance will not be required, and relying on this the promisor is not ready to perform at the day, or has so altered his position that he cannot perform at all. Though promissory estoppel is not ordinarily a substitute for consideration, justice demands that in the cases supposed the promisee should not be allowed to hold the promisor liable *691 for his non-performance.” Williston on Contracts, § 1831.
Georgeton v. Reynolds,
The plaintiff and the decedent may have acted unwisely by entering into the release agreement with the defendants. The court nevertheless stresses: “Where a legal capacity is shown to exist, that the party had sufficient understanding to clearly comprehend [sic], that he consented freely to the special matter about which he was engaged, and no fraud or undue influence is shown to have been used to bring about the result, the validity of the act cannot be impeached, however unreasonable or imprudent it may seem to others.”
Chesapeake and Ohio Railway Co. v. Mosby,
In summary, for the reasons stated above, the court concludes that the plaintiff and the decedent freely and knowingly entered into the waiver and release agreement, and such agreement was supported by adequate consideration. Thus, the plaintiff’s contention is without merit and does not constitute a ground for setting aside the release.
The second issue which the court addresses is whether the waiver and release agreement itself bars the plaintiff’s cause of action. The court notes that the validity of releases in the context of race tracks apparently has not been considered either by Virginia case law or by a Virginia statute. The Virginia Supreme Court as well as this court, however, have upheld and enforced such release provisions in other factual situations.
See e.g.: Chesapeake and Ohio Railway Company v. Clifton Forge-Waynesboro Telephone Company,
On the other hand, other jurisdictions have addressed the issue concerning the validity of waiver and release forms in the context of race tracks: Almost unanimously, they have upheld such agreements.
See e.g.: Tope v. Waterford Hills Roadracing Corporation,
In
Gore v. Tri-County Raceway, Inc.,
It should be noted that participation in automobile races and other sporting events is a voluntary undertaking. If a prospective participant wishes to place himself in the competition sufficiently to voluntarily agree [sic] that he will not hold the organizer or sponsor of the *692 event liable for his injuries, the courts should enforce such agreements. If these agreements, voluntarily entered into, were not upheld, the effect would be to increase the liability of those organizing or sponsoring such events to such an extent that no one would be willing to undertake to sponsor a sporting event. Clearly, this would not be in the public interest.
Thus, the court is of the opinion that the agreement between the parties of this suit does not involve either a public utility or a quasi-public situation, and the agreement of release, voluntarily executed by the parties, should be upheld.
III. MOTION FOR SUMMARY JUDGMENT BASED UPON THE ASSUMPTION OF RISK
The third issue which the Court raises
sua sponte
is whether the plaintiff’s cause of action in addition is barred by the assumption of risk. The essence of the assumption of risk is venturousness. “The doctrine has developed from the maxim,
volenti non fit
injuria____ The doctrine rests on two premises: First, that the nature and extent of the risk are fully appreciated; and, second, that it is voluntarily incurred.”
Hunn v. Windsor Hotel Co.,
The record shows that the decedent participated as a race driver at the defendants’ dragway on other occasions before September 27, 1981. He knew or should have known the design, construction, and conditions of that racetrack as they existed on that September date. The release that he and the plaintiff voluntarily signed, among other things, should have warned him accordingly. The decedent assumed the attendant risk when he voluntarily joined the race that day. Thus, the court holds that the record establishes the assumption of risk as a matter of law.
IV. CONCLUSION
For the reasons stated above, it accordingly is the Order, Judgment, and Decree of this court that the defendants’ motion for summary judgment be, and the same is hereby, granted, and the above styled cause is hereby dismissed.
Notes
. The plaintiff submitted affidavits in which she alleges the invalidity of the waiver and release form on,
inter alia,
the ground that the document was not signed on the day of the race. She, however, does not deny that she and the decedent voluntarily signed the document or that the release related to the race at issue and was signed before that race held on the day in question. Nor does she allege or seek to establish duress, fraud, or mutual mistake of fact. The defendants correctly conclude that "[a]t best, the affidavits create a simple issue of fact as to how long before the race plaintiff and her decedent signed the release. That is not material since the release clearly pertained to this race and was signed before decedent was allowed to participate in it. Those are the material facts, and they are not contested.” (Defendants’ Reply Brief at 9-10).
See, e.g.: Hubbard v. United States,