451 S.E.2d 489 | Ga. Ct. App. | 1994
Charlene P. Sewell, individually and as personal representative of the estate of Cecil L. Sewell, deceased, appeals the trial court’s order granting Dixie Region Sports Car Club of America, Inc.’s (Dixie Region) motion for summary judgment. Sewell brought the underlying wrongful death and loss of consortium action to recover damages incurred as a result of the death of her husband.
The undisputed facts show that Sewell and her husband were at a Dixie Region Solo II
1. Sewell alleged Dixie Region was grossly negligent
Dixie Region asserts that the decedent assumed the risk of his actions. “The elements of assumption of risk are: (1) a hazard or danger which is inconsistent with the safety of the invitee, (2) the invitee must know and appreciate the danger, and (3) there must be an acquiescence or willingness on the part of the invitees to proceed in spite of the danger. [Cits.]” Fagan v. Atnalta, Inc., 189 Ga. App. 460, 461 (376 SE2d 204) (1988). “[Plaintiff’s assumption of the risk will bar his action even though there was wilful and wanton misconduct on defendant’s part. [Cit.]” Newman v. Collins, 186 Ga. App. 595, 596 (367 SE2d 866) (1988).
Sewell argues that the doctrine of assumption of the risk does not apply herein because Sewell neither expressly nor impliedly assumed the risk of his injuries. However, “[i]n the absence of anything to the contrary, every adult is presumed to possess such ordinary intelligence, judgment, and discretion as will enable him to appreciate obvious danger.” (Citation and punctuation omitted.) Fagan, supra at 461. The decedent had attended approximately twelve Solo II events, and one of those events was also located at the Bainbridge Industrial Airport. Sewell deposed that while attending one such previous event with her husband she witnessed her son’s car spin out momentarily while trying to negotiate a slalom or turn. The decedent also acknowledged on the release that the activities of the event were dangerous. Furthermore, despite being told to leave the area and directed toward the area for spectators by another driver, the decedent returned to the area where he was struck.
“That which a plaintiff may not do without barring himself from recovery is to accept a risk so obvious that taking it amounts to failure to exercise ordinary care for his own safety, or recklessly to test an observed and clearly obvious peril. A person cannot undertake to
2. Sewell’s loss of consortium claim is dependent on her husband’s right to recover against Dixie Region, and because her husband assumed the risk of his actions, he cannot recover, and, therefore, the loss of consortium claim must also fail. See Lovelace v. Figure Salon, 179 Ga. App. 51 (345 SE2d 139) (1986).
3. Our holding in Division 1 renders Sewell’s additional enumeration of error moot.
Judgment affirmed.
A Solo II event is a non-speed driving skill contest in which an amateur driver navigates a course delineated by cones or pylons. They are run on short courses that emphasize car handling and agility rather than speed or power.
Both parties agree that under Georgia law, a release does not bar a claim for gross negligence. See Wade v. Watson, 527 FSupp. 1049 (N.D. Ga. 1981).