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Jordan Polansky v. Michael Kelly

March 6, 2012

JORDAN POLANSKY, PLAINTIFF,
v.
MICHAEL KELLY, AN INDIVIDUAL, AND SPORTS CAR CLUB OF AMERICA, INCORPORATED, A CONNECTICUT CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Herndon, Chief Judge:

ORDER

This case arose out of a solo autocross*fn1 accident which resulted in plaintiff Jordan Polansky being injured after being struck by the vehicle driven by defendant Michael Kelly while plaintiff was acting as a corner captain*fn2 during Kelly's course run in the parking lot of the Gateway International Raceway. As a result, plaintiff sued Kelly for negligence and the event organizer, defendant Sports Car Club of America, Inc. (Sports Car Club), for wilful and wanton conduct. Both Sports Car Club and Kelly have filed motions for summary judgment (Docs. 84 & 85), arguing that the "release and waiver of liability, assumption of risk and indemnity agreement" (the release and waiver) signed by plaintiff bars his claims and that plaintiff cannot establish any wanton and willful misconduct. The Court agrees, and grants defendants' motions for summary judgment.

I. Background

Plaintiff is an experienced autocross racer, having participated in approximately thirty-two or thirty-three autocross events since 2003, including two or three events organized by Sports Car Club. Prior to each race, plaintiff was required to sign a release and waiver of liability before he was able to participate. The event causing plaintiff's injuries was no different, and on March 4, 2010, when plaintiff arrived at the Gateway International Raceway to participate in Sport's Car Club's autocross event, he signed the release and waiver at issue which provided as follows:

RELEASE AND WAIVER OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT (READ CAREFULLY BEFORE SIGNING)

IN CONSIDERATION of being permitted to compete, officiate, observe, work for, or participate in any way in any Sports Car Club of America or SCCA Pro Racing ("SCCA") events or activities (EVENTS) or being permitted to enter for any purpose any RESTRICTED AREA hereof (defined as any area requiring special authorization, credentials, or permission to enter or any area to which admission by the general public is restricted or prohibited), I, for myself, my personal representative, heirs and next of kin:

1. Hereby acknowledge, agree, and represent that I will immediately upon entering of any such RESTRICTED AREAS, and will continuously thereafter, inspect the RESTRICTED AREAS which I enter and I further agree and warrant that, if at any time, I am in or about the RESTRICTED AREAS and I feel anything to be unsafe, I will immediately advise the officials of such and will leave the RESTRICTED AREAS and will refuse to participate further. I understand that the nature of the EVENT may not permit me to inspect the RESTRICTED AREAS and/or EVENT course and facilities (including adjacent areas thereof) with which I may contact during the EVENT prior to my participation and that there may be risks not known to me that are not foreseeable at this time. I agree that, if at any time, I feel anything to be UNSAFE, I will immediately take all necessary precautions to avoid the unsafe area and REFUSE TO PARTICIPATE further in the EVENT.

2. Hereby RELEASE, WAIVE, and DISCHARGE SCCA, the promoters, participants, racing associations, sanctioning organizations or any affiliate, subsidiary or subdivision thereof, track operators, track owners, officials, car owners, drivers, pit crews, rescue personnel, any person in any RESTRICTED AREA, sponsors, advertisers, owners, and lessees of premises used to conduct the EVENTS, premises and event inspectors, surveyors, underwriters, consultants, and others who give recommendations, directions, or instructions or engage in risk evaluation or loss control activities regarding the premises or EVENTS and for each of them, their directors, officers, agents, and employees, all for the purposes herein referred to as "RELEASEES," FROM ALL LIABILITY TO ME, my personal representatives, assigns, heirs, and next of kin FOR ANY AND ALL LOSS OR DAMAGE AND ANY CLAIM OR DEMANDS THEREFOR ON ACCOUNT OF INJURY TO THE PERSON OR PROPERTY OR RESULTING IN THE DEATH OF THE UNDERSIGNED ARISING OUT OF OR RELATED TO THE EVENTS, WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE. In addition, I COVENANT NOT TO SUE any of the RELEASEES based upon any claim arising out of any of the EVENTS.

3. Hereby ASSUME FULL RESPONSIBILITY FOR ANY RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE arising out of or related to the EVENTS whether caused by the NEGLIGENCE OR RELEASEES or otherwise.

4. Hereby AGREE TO INDEMNIFY AND SAVE AND HOLD HARMLESS the RELEASEES and each of them from any loss, liability, damage, or cost they may incur due to claims brought against the RELEASEES arising out of my injury, or death, or damage to my property while I am in the RESTRICTED AREAS and/or while competing, practicing, officiating, observing or working for or for any purpose participating in the EVENTS and whether caused by the negligence of the RELEASEES or otherwise.

5. Hereby acknowledge that THE EVENTS ARE POTENTIALLY VERY DANGEROUS and involve the risk of serious injury and/or death and/or property damage. I also expressly acknowledge that INJURIES MAY BE COMPOUNDED OR INCREASED BY NEGLIGENT RESCUE OPERATIONS OR PROCEDURES BY THE RELEASEES.

6. Hereby agree that this Release and Waiver of Liability, Assumption of Risk and Idemnity Agreement extends to all acts of negligence by the RELEASEES, INCLUDING NEGLIGENT RESCUE OPERATIONS and is intended to be as broad and inclusive as is permitted by the laws of the Province or State in which th EVENTS are conducted and that if any portion thereof is held invalid, it is agreed that the balance shall, not withstanding, continue in full legal force and effect.

I HAVE READ THIS RELEASE AND WAIVER OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT, FULLY UNDERSTAND ITS TERMS, UNDERSTAND THAT I HAVE GIVEN UP SUBSTANTIAL RIGHTS BY SIGNING IT, AND HAVE SIGNED IT FREELY AND VOLUNTARILY WITHOUT ANY INDUCEMENT, ASSURANCE, OR GUARANTEE BEING MADE TO ME AND INTEND MY SIGNATURE TO BE A COMPLETE AND UNCONDITIONAL RELEASE OF ALL LIABILITY TO THE GREATEST EXTENT ALLOWED BY LAW.

After signing the release and waiver,*fn3 although plaintiff claims he did not read it, plaintiff had his car inspected and then walked the course "[a]t least three, maybe four" times, including once with a group. During his walks, plaintiff noticed that it was wet that day but did not report that nor any other unsafe conditions to any Sports Car Club officials. Following the group walk-through, a driver meeting was held where things such as "[k]eeping the car under control, what responsibilities you have as a course worker, [and] what to do if you see what you believe to be an unsafe condition" were discussed. Thereafter, plaintiff was given a work assignment as a corner captain for the third of four runs that day. Because plaintiff had participated in two to three other events hosted by Sports Car Club, he knew that he was required to work the course in order to drive it, although he did not know what job he would be assigned. Two other corner workers were assigned to corner three with plaintiff. Of the three persons assigned to the particular corner, plaintiff was the most experienced, which caused plaintiff to believe resulted in his assignment as the captain. Plaintiff had worked the corner in many races before, having participated in thirty-two or more previous races. Plaintiff was given a red flag that could be used to stop the race and a radio that was connected to the race starter, timekeeper, and other corner captains.

Plaintiff drove in the second run without incident. During the third run, plaintiff along with his two co-corner workers reported to the third corner work station to perform their duties. The work station was designated by a numbered cone and which had a fire extinguisher. The third corner work station was located approximately fifty feet from the course. There was a concrete barrier in plaintiff's corner, which he could have positioned himself behind for protection, but chose not to do so. While acting as corner captain, plaintiff noticed Kelly's vehicle was out of control and coming towards him. Plaintiff ran backwards in an attempt to avoid Kelly's vehicle, but did not succeed and was struck by Kelly's vehicle, causing plaintiff injuries. The other two corner workers were also struck by Kelly's vehicle.

II. Standard of Review

This case was removed to federal court based upon diversity jurisdiction. In a diversity case, the Court applies state law to substantive issues. RLI Ins. Co. v. Conseco, Inc., 543 F.3d 384, 390 (7th Cir. 2008). Federal law governs procedure. Fednav Int'l Ltd. v. Cont'l Ins. Co., 624 F.3d 834, 838 (7th Cir. 2010). When neither party raises a conflict of law issue in a diversity case, as is the case here, the applicable law is that of the state in which the federal court sits. Id. Thus, Illinois law applies.

Summary judgment is appropriate only when "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. PROC. 56(c). A genuine issue of material fact exists when the evidence is such that a reasonable jury could find for the non-movant. Buscaglia v. United States, 25 F.3d 530, 534 (7th Cir. 1994). The movant in a motion for summary judgment bears the burden of demonstrating the absence of a genuine issue of material fact by specific citation to the record; if the party succeeds in doing so, the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue of fact for trial. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. ...


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