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 nothing that evening other than to stand, watch the races, and perhaps shout encouragement to my son and the other drivers." Id.
On the other hand, a participant is not a "user" under the statute and is not entitled to its protection. Lago v. Krollage, 157 A.D.2d 49, 52, 554 N.Y.S.2d 633 (2d Dep't 1990), aff'd, 78 N.Y.2d 95, 571 N.Y.S.2d 689, 575 N.E.2d 107 (1991); Howell v. Dundee Fair Ass'n, 73 N.Y.2d 804, 806, 537 N.Y.S.2d 27, 533 N.E.2d 1056 (1988). Defendant argues that the plaintiff was, as a matter of law, a member of the pit crew, and therefore not a "user."
For example, the court in Lago specifically held as a matter of law that the decedent, acting as a race car mechanic at the time he was killed, was not a "user" and was not entitled to the protection of the statute. 157 A.D.2d at 52. The Court of Appeals, deciding the appeal on other grounds, stated that it need not consider whether the plaintiff was a "user." 78 N.Y.2d at 101.
In Howell, the plaintiff was at the raceway solely as a volunteer fire and ambulance crew member. 73 N.Y.2d at 805. The court found that plaintiff was not a "user" under the statute, and therefore the release was valid and enforceable. Id. at 806. The parties also rely on Owen, in which the court held that the statute was applicable and the release was not enforceable. 79 N.Y.2d at 969. However, in that case the claim that the decedent, as a professional race car driver, was a "user" within the meaning of the statute was not raised before the trial court. Thus, a reading of the statute and the applicable cases leads to the conclusion that if the plaintiff was an active member of the pit crew, he would have been a participant and not a "user," and would not be entitled to the benefits of the statute.
In attempting to establish that the plaintiff was an active member of the pit crew, the defendant points to plaintiff's sworn testimony at an examination before trial and the affidavits of two raceway employees.
In the first place, the issue is the plaintiff's status on the night of the accident. A careful reading of the plaintiff's deposition reveals that he admitted being a member of his son's pit crew on many occasions over a period of years. However, there is no admission by the plaintiff that he was acting as a member of the pit crew on the night in question.2
The fact that the plaintiff worked as a member of his son's pit crew frequently over a long period of time is certainly evidence from which one might conclude that he was acting as a member of the pit crew on the night in question. Such evidence would be admissible and relevant not only as to the issue of the plaintiff's comparative negligence or awareness of the dangers of being in the pit crew, but also on the issue as to his credibility that he was merely acting as a spectator and cheerleader that night. Any inference made from that evidence, however, would be permissive rather than required.
Second, the employees' affidavits submitted by the defendant are inconclusive. The affidavit of Judy Olevnik states that she "personally observed Plaintiff take an active part in the operation of that car on that night and on other nights." (Def.'s Not. Cross-Mot. Olevnik Aff. sworn Feb. 8, 1995 (emphasis added).) This merely is a conclusion with no details and has no evidentiary value. The affidavit of Charles "Chuck" Miller merely states that he "observed Plaintiff taking an active part in the operation of his son's race car as a crew member at several ESS events." (Def.'s Not. Cross-Mot. Miller Aff. sworn Feb. 8, 1995.) Again, this provides no details, nor is it specific to the night in question.
The status of the plaintiff on August 30, 1991, will determine whether or not the release and membership applications bar his claims against the defendant. If he was merely an observer or spectator, the documents are void and unenforceable. If he was a participant as a pit crew member, the documents are valid and enforceable and the claim must be dismissed. Neither side has presented sufficient evidence for this court to determine as a matter of law the status of the plaintiff. This issue must be decided at the time of trial. Therefore, all motions are denied.
Therefore, it is
1. Plaintiff's motion to dismiss the Fifth and Seventh affirmative defenses is DENIED; and
2. Defendant's motion for summary judgment is DENIED.
IT IS SO ORDERED.
David N. Hurd
U.S. Magistrate Judge
Dated: April 14, 1995
Utica, New York.