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Gray v. Bayer

United States District Court, S.D. Illinois

July 14, 2014

JEFF GRAY, individually and as Special Administrator of the Estate of Beaulah Inez Gray, and MICHAEL GRAY, Plaintiffs,
v.
KEVIN BAYER, doing business as CLAY COUNTY SPEEDWAY, Defendant.

MEMORANDUM AND ORDER

J. PHIL GILBERT, District Judge.

This matter comes before the Court on defendant Kevin Bayer's motion for summary judgment (Doc. 26) to which plaintiffs Jeff Gray ("Jeff") and Michael Gray ("Michael") (collectively "Plaintiffs") filed responses (Doc. 31 & 35). The Court heard oral argument from the parties on June 11, 2014. For the following reasons, the Court grants in part and denies in part the motion.

1. Background

As a hobby, Michael modified vehicles for the purposes of participating in various derby races. On September 23, 2012, Michael and his mother, Beaulah Gray ("Beaulah"), participated in the powder puff race at the Clay County Speedway located in Flora, Illinois. Michael had modified their vehicle in various ways, including removing the shoulder strap of the safety belt. Beaulah drove, and Michael sat in the driver's seat. Beaulah had never participated in a high-speed race before like the incident race and there is evidence that the vehicle was wholly unsuitable for this particular race. During the incident, Michael was not wearing a seat belt and at one point prior to the accident the car lifted approximately three feet off the ground. Ultimately, the vehicle rolled resulting in Beaulah's death and Michael's serious injury

The parties agree that Michael and Beaulah signed a release prior to the race that states in pertinent part as follows:

IN CONSIDERATION of being permitted to compete, officiate, observe, work, or participate in any way in the EVENT(S) or being permitted to enter for any purpose any RESTRICTED AREA (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), EACH OF THE UNDERSIGNED, for himself, his personal representatives, heirs, and next of kin:
...
2. HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the promoters, participants, racing associations, sanctioning organization or any subdivision thereof, track operators, track owners, officials, car owners, drivers, pit crews, rescue personnel any persons in any RESTRICTED AREA, sponsors, advertisers, owners and leassees (sic) of premises used to conduct the EVENT(S), premises and event inspectors, surveyors, underwriters, consultants and others who give recommendations, direction or instruction or engage in risk evaluation or loss control activities regarding the premises or EVENT(S) and each of them, their directors, officers, agents, employees, representatives owners, members, affiliates, successors and assigns all for the purposes herein referred to as "Releasees, " FROM ALL LIABILITY TO THE UNDERSIGNED, his 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 DEATH OF THE UNERSIGNED ARISING OUT OF OR RELATED TO THE EVENT(S), WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE.
3. HEREBY AGREES TO INDEMNIFY AND SAVE AND HOLD HARMLESS the Releasees and each of them FROM ANY LOSS, LIABILITY, DAMAGE, OR COST they may incur arising out of or related to the UNDERSIGNED'S INJURY OR DEATH, WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE.
4. HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE arising out of or related to the EVENT(S) whether caused by the NEGLIGENCE OF RELEASEES or otherwise.
5. HEREBY acknowledges that THE ACTIVITIES OF THE EVENT(S) ARE VERY DANGEROUS and involve the risk of serious injury and/or death and/or property damage. Each of THE UNDERSIGNED, also expressly acknowledges that INJURIES RECEIVED MAY BE COMPOUNDED OR INCREASED BY NEGLIGENT RESCUE OPERATION OR PROCEDURES OF THE RELEASEES.
...
I HAVE READ THIS RELEASE AND WAIVER OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT, 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 ...

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