The opinion of the court was delivered by: DAVID N. HURD
The plaintiff has moved to dismiss the Fifth and Seventh affirmative defenses raised by the defendant in its answer. The defendant has cross-moved for summary judgment dismissing the complaint. The motions were submitted to the court without oral argument.
The defendant is the owner and operator of an automobile racetrack located in Dundee, New York. On August 30, 1991, the plaintiff paid an entrance fee which allowed him admission to the racetrack and to the pit area. On payment of the fee, he also signed a "Release and Waiver of Liability and Indemnity Agreement" which provided in part:
IN CONSIDERATION of being permitted to enter for any purpose any RESTRICTED AREA (herein defined as including but not limited to the racing surface, pit areas, infield, burn out area, approach area, shut down area and all walkways, concessions and other areas appurtenant to any area where any activity related to the event shall take place), or being permitted to compete, officiate, observe, work for, or for any purpose participate in any way in the event . . .
(Pl.'s No. Mot. Ex.2.) Also, prior to that evening, the plaintiff had become a member of Empire Super Sprints, Inc. ("ESS") which included a membership contract that provided in part that the signor "release, waive, discharge, and promise not to sue the ESS, [or] any of its officials, [or] any of its members, any of its sponsors . . . ." Id. Ex.1. The defendant was a sponsor of the racing events which occurred on October 30, 1991. Plaintiff's son participated in the events as a race car driver.
During the course of the evening, the plaintiff was allegedly injured while in the pit area when a race car caused a large rock or other debris from the racetrack to strike him in the face. As a result, he sustained the personal injuries which are the subject of this action.
In the Fifth affirmative defense, the defendant alleges that it is not liable by reason of the "Release and Waiver of Liability and Indemnity Agreement" signed by the plaintiff upon entering the premises. In the Seventh affirmative defense, the defendant alleges that it is not liable by reason of the membership contract plaintiff signed with ESS.
The plaintiff moves to strike the two affirmative defenses on the basis of a New York Law which voids agreements between owners and users of places of recreation which purport to exempt the owner from liability for the owner's negligence.
The defendant moves to dismiss the complaint in its entirety on the basis of the two documents signed by the plaintiff prior to his accident.
The issue before the court, therefore, is whether § 5-236 applies to render the releases signed by the plaintiff unenforceable. It is clear that the racetrack is a facility which is covered by the statute. Owen v. R.J.S. Safety Equip. Inc., 79 N.Y.2d 967, 967, 582 N.Y.S.2d 998, 591 N.E.2d 1184 (1992); Green v. WLS Promotions, Inc., 132 A.D.2d 521, 521, 517 N.Y.S.2d 537 (2d Dep't 1987), appeal dismissed without op., 70 N.Y.2d 951, 524 N.Y.S.2d 678, 519 N.E.2d 624 (1988); Gaskey v. Vollertsen, 110 A.D.2d 1066, 1066-67, 488 N.Y.S.2d 922 (4th Dep't 1985). Thus, to resolve the issue before the court, the status of the plaintiff must be determined. If the plaintiff was a "user," then the statute is applicable, and the affirmative defenses must be stricken. On the other hand, if the plaintiff was an actual "participant" in the event, § 5-326 is not applicable, and the two documents signed by the plaintiff are enforceable and the complaint must be dismissed.
A spectator or observer who pays a fee to enter the racetrack is entitled to the protection of section 5-326. Gaskey, 110 A.D.2d at 1066-67 (spectator in pit area entitled to protection); see Green, 132 A.D.2d at 521. Plaintiff contends that he was merely a spectator on the night in question, thus falling under the protection of the statute.
Plaintiff supports his position by pointing to his two affidavits. First plaintiff stated that from the time he entered the racetrack until he was injured, he "observed the races from [the pit] area for approximately an hour." (Pl.'s Not. Mot. Thomas Aff. sworn Jan. 24, 1995.) Plaintiff further stated that "on the night of the accident, I was there simply to watch the race . . . , and did nothing with regard to maintenance of the car." (Pl.'s Aff. sworn February 21, 1995.) "I did ...