DECISION AND ORDER
In this diversity action, the plaintiffs seek damages from the defendants NASCAR and Watkins Glen International, Inc. ("Watkins Glen")
for the wrongful death of John D. Mc Duffie, Jr. ("Mc Duffie") as a result of a fatal car crash that occurred when Mc Duffie was a participant at a race at the Watkins Glen Raceway. Mc Duffie, a veteran professional stock car driver, was killed while competing at the annual "Budweiser at the Glen" race on August 11, 1991. His widow alleges that her husband's death was caused by the defendants' negligence in knowingly providing a dangerous race track with substandard barriers. In addition, plaintiff alleges a claim for willful misconduct by the defendants.
Defendants NASCAR and Watkins Glen now move for summary judgment and for the reasons set forth below, those motions are granted and the complaint is dismissed.
Except as noted, the following material facts are not disputed by the parties. NASCAR is a Florida corporation engaged in the business of sanctioning stock car races. (Affidavit of Phillip Havens, at 1). NASCAR develops and implements rules and specifications so that races are organized and run in a fair, competitive environment. (Id.) NASCAR does not own or operate any racetracks, nor does it sponsor any races. (Id., at 2).
Defendant Watkins Glen owns a road race track in Watkins Glen, New York, which holds car races sponsored by NASCAR and a variety of other sanctioning organizations. NASCAR has sanctioned races at Watkins Glen since 1986 and was the sanctioning body for the "Budweiser at the Glen" race held at Watkins Glen on August 11, 1991 when Mc Duffie was killed.
Watkins Glen is one of two "road courses" in the Winston Cup Series of races. The remaining 27 races are run on oval tracks. Unlike the oval courses used for most of the NASCAR races, a road course has an irregular configuration with straightaways, turns in each direction, and combination turns. (Defendants' Joint Rule 25 Statement, at P 8).
Mc Duffie, 52 years old at the time of his death, had been a professional stock car driver for over 25-years. Each year of his participation in NASCAR racing, Mc Duffie completed and signed applications for NASCAR membership both as an owner and driver. These applications contained releases running in favor of NASCAR as well as the owners and operators of the tracks at NASCAR sanctioned events.
As part of his NASCAR membership, Mc Duffie was provided with insurance benefits for medical expenses and a death benefit. Mc Duffie, in his application for the NASCAR benefit plan, agreed that any claim for accident injuries (including death), incurred in any NASCAR sanctioned stock car event, was limited to those provided in the benefit plan. (See Releases attached as Exhibits 5 and 6 to defendants' Joint Rule 25 Statement).
In addition, Mc Duffie signed event releases for his participation in each NASCAR event. In all, Mc Duffie signed four liability release forms in conjunction with the four-day "Budweiser at the Glen" event. He also paid a $ 340 entry fee. The General Counsel for NASCAR describes this fee as consisting of a $ 325 NASCAR inspection fee and a $ 15 fee paid to the track to defray the cost of waste disposal. (Havens Reply Affidavit). Plaintiff characterizes the fee as a "user fee" based upon the entry form (plaintiff's Exhibit 4), which states that a "$ 325 entry fee" must be paid for all cars when signing in at the track.
Mc Duffie competed in NASCAR events at Watkins Glen in the years 1986 - 1991, completing 328 laps and earning more than $ 16,000 in prize money. On August 8, 9 and 10, 1991, Mc Duffie ran practice laps and qualifying laps at the Raceway. It is beyond dispute that Mc Duffie was thoroughly familiar with the Watkins Glen track in particular, as well as the general risks of auto racing.
As he approached the end of a long straightaway leading to Turn 5 during the fifth lap of the race on August 11, 1991, Mc Duffie's car sustained mechanical difficulties, which caused him to lose braking power and control of his vehicle. He collided with a car being driven by Jimmy Means, lost a tire, spun off the track across a large grassy area and hit the tire barrier outside Turn 5. After impact, the car overturned, and landed on its roof. Mc Duffie was killed instantly. A split second later the Means car crashed into the barrier at almost the same spot. Means climbed out of his car unhurt and summoned aid for Mc Duffie.
Plaintiff, while not disputing that Mc Duffie's car went out of control as a result of mechanical failure, nonetheless argues that Turn 5 was negligently designed, thus "encouraging speeds for which it was not designed." (Edleman Affidavit, at 3). As proof, plaintiff cites the "inner loop" or "zig zag chicane" which was added to the long straight-away leading to Turn 5 after Mc Duffie's accident. Apparently, plaintiff is contending that had the chicane been in place on August 11, 1991, Mc Duffie's speed would have been slower when his car impacted the tire barrier.
Plaintiff also argues that the tire barrier itself was substandard and did not comply with international specifications and standards set by the "Federation Internationale de la Automobile", which establishes worldwide safety standards in racing car tournaments.
I. Summary Judgment Standard
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A factual dispute is material only if it might affect the outcome of the suit under governing law. Id. Defendants move for summary judgment on the basis of Mc Duffie's assumption of risk, and on the basis of the releases he signed to obtain NASCAR membership and to compete in the race.
II. Assumption of Risk By a Professional
The Court of Appeals in the leading case of Turcotte v. Fell, 68 N.Y.2d 432, 510 N.Y.S.2d 49, 502 N.E.2d 964 (1986), firmly established the doctrine that primary assumption of risk, in the context of professional sports (there, horse racing), is a complete defense to negligence claims brought by the participant against the owner of the sport facility or the promoter. The firmly established principle in Turcotte is that "participants properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation." 68 N.Y.2d at 439. The doctrine applies "not only to any facet inherent in the activity, but also to any open and obvious condition of the place where the activity is carried on, provided the injured party, given his skill and experience at the activity, knew of the injury causing defect and appreciated the resultant risk." Owen v. R.J.S. Safety Equip., 169 A.D.2d 150, 155, 572 N.Y.S.2d 390 (3d Dep't 1991), aff'd, 79 N.Y.2d 967, 582 N.Y.S.2d 998, 591 N.E.2d 1184 (1992).
Defendants argue that the risks of racing at Watkins Glen in general, and around Turn 5 in particular, were open and obvious. They contend that it is beyond doubt that Mc Duffie, given his experience at Watkins Glen, was well aware of the conditions at Turn 5, including the speed at which Turn 5 is approached, and thus he voluntarily assumed the risks of racing there.
In opposing summary judgment, plaintiff relies on a post Turcotte case, Owen v. R.J.S. Safety Equip., supra. In Owen, plaintiff's decedent was killed when his race car left the track and struck a retaining wall during a race at the Orange County Fair Speedway, where the decedent had participated in races for a number of years. Plaintiff alleged that the design and construction of the retaining wall failed to direct the decedent's car back onto the track and caused the car to become airborne, thereby increasing the risk of serious injury or death. The affidavits of plaintiff's experts indicated that the contour of the track's retaining wall, as well as the design of its guardrail and the placement of barrels near the guardrail, "was unique and created a dangerous condition over and above the usual dangers that are inherent in the sport of auto racing." 79 N.Y.2d at 970. Despite the decedent's status as an experienced racer who assumed the risks of injury that ordinarily attend auto races, the Court of Appeals held that
[plaintiff's] affidavits were sufficient to create a triable question of fact as to whether defendants' alleged negligence, if any, engendered additional risks that "do not inhere in the sport" and, if so, whether the decedent should be deemed to have assumed those risks by voluntarily participating in the race (citation omitted).