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CADEK v. GREAT LAKES DRAGAWAY

February 4, 1994

ROY CADEK, Plaintiff,
v.
GREAT LAKES DRAGAWAY, INC., Defendant.



The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is the motion of defendant Great Lakes Dragaway, Inc. ("Great Lakes") for summary judgment. For the following reasons, the motion is granted in part and denied in part.

 The material facts are not in dispute. Plaintiff Roy Cadek ("Cadek") is a citizen of the State of Illinois. Great Lakes is a Wisconsin corporation with its principal place of business in Union Grove, Wisconsin. Great Lakes is engaged in the business of operating an automobile racetrack.

 On July 17, 1992, Cadek paid a fee to Great Lakes in order to drive his funny car, named "Risky Asset," at Great Lakes Dragaway racetrack located in Union Grove, Wisconsin. Prior to driving Risky Asset on Great Lakes' track, Cadek signed a release discharging Great Lakes from potential liability that may result from any and all negligence, including negligent rescue operations.

 After executing the release, Cadek operated his vehicle on the racetrack. While driving Risky Asset on the track, Cadek collided with a nameless van parked on the edge of the racetrack. Coincidentally, the parked van was also owned by Cadek. The collision itself was a minor collision; however, the impact of the collision caused a fuel spill which ignited. The ensuing flame caused considerably more damage to Risky Asset and the van than the impact of the collision.

 On March 8, 1993, Cadek filed a five-count complaint against Great Lakes alleging breach of contract, negligence, negligent misrepresentation, misrepresentation, and fraud. The crux of the complaint is that Great Lakes failed to equip the racetrack facility with an adequate fire extinguishing system. The only alleged available method of extinguishing fire on the track was an exterior water spigot and garden hose. In response to the complaint, Great Lakes filed a motion for summary judgment in lieu of an answer. *fn2"

 Great Lakes argues that there is no genuine issue of material fact and that Cadek's claims are barred as a matter of law because he executed a release. The court agrees that the facts as stated in Great Lakes 12(m) statement are not in dispute and that Great Lakes is entitled to summary judgment as to Count II; however, the court disagrees that the mere existence of a release prohibits Cadek from maintaining Counts I, III, IV and V against Great Lakes as a matter of law.

 DISCUSSION

 Rule 56(c) of the Federal Rules of Civil Procedure provides that for a party to prevail on a summary judgment motion "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, [must] 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). Even though all reasonable inferences are drawn in favor of the party opposing the motion, Beraha v. Baxter Health Care Corp., 956 F.2d 1436, 1440 (7th Cir. 1992), a scintilla of evidence in support of the nonmovant's position will not suffice to oppose a motion for summary judgment. Brownell v. Figel, 950 F.2d 1285, 1289 (7th Cir. 1991). Instead, the nonmoving party must elucidate specific facts demonstrating that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

 Moreover, to preclude summary judgment the disputed facts must be those that might affect the outcome of the suit, First Indiana Bank v. Baker, 957 F.2d 506, 508 (7th Cir. 1992), and a dispute about a material fact is "genuine" only if the evidence is such that a reasonable jury could return a verdict 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).

 In order to address the issue of whether the release executed by Cadek is enforceable, thus barring him from maintaining the instant action, the court applies the law of Wisconsin. It is a well settled principle that the district court, exercising diversity jurisdiction over the parties and sitting in the State of Illinois, must apply Illinois' choice-of-law rules and statutes of limitations. Anabaldi v. Sunbeam Corp., 651 F. Supp. 1343, 1344 (N.D. Ill. 1987); see also Colonial Penn Life Ins. Co. v. Assured Enterprise, Ltd., 151 F.R.D. 91, 95 (N.D. Ill. 1993). Illinois applies the "most significant contacts" test to determine the applicable law in tort cases. Vantassell-Matin v. Nelson, 741 F. Supp. 698, 702 (N.D. Ill. 1990) (citing Ingersoll v. ...


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