Winterstein v. Wilcom

The plaintiff, Winterstein, who was injured when his drag racing car hit a 36-inch hundred-pound cylinder head lying on the racing track owned and and operated by the defendant, Wilcom. The plaintiff filed a lawsuit alleging that the defendant's employees were negligent in failing to ensure that the racing track was free of debris. The defendant raised the defense of assumption of risk, based on a release that the plaintiff signed prior to participating in the race which stated in part:

REQUEST AND RELEASE

I, the undersigned, hereby request permission to enter the premises of 75-80 DRAG-A-WAY, PIT AREA, STAGING AREA, and participate in auto timing and acceleration runs, tests, contests and exhibitions to be held this day. I have inspected the premises and I know the risks and dangers involved in the said activities, and that unanticipated and unexpected dangers may arise during such activities and I assume all risks of injury to my person and property that may be sustained in connection with the stated and associated activities, in and about the premises.

In consideration of the permission granted to me to enter the premises and participate in the stated activities, and in further consideration of the provisions of a insurance medical plan, I do hereby, for myself, my heirs, administrators and assigns, release, remise and discharge the owners, operators, and sponsors of the said premises, of the activities, of the vehicles, and of the equipment therein, and their respective servants, agents, officers, and officials, and all other participants in the stated activities of and from all claims, demands, actions, and causes of action of any sort, for injuries sustained by my person and/or property during my presence in said premises and participation in the stated activities due to negligence or any other fault.

I represent and certify that my true age is stated below, and if I am under the age of 21 years, I do represent and certify that I have the permission of my parents and/or guardians to participate in the stated activities, and that they have full knowledge thereof.

I certify that my attendance and participation in the stated activities is voluntary, and that I am not, in any way, the employee, servant, or agent of the owners, operators or sponsors of the premises and the activities therein.

I HAVE READ AND UNDERSTAND THE FOREGOING REQUEST AND RELEASE.

In Witness Whereof, I have hereunto set my hand and seal. . . .”

The plaintiff argued that the release was invalid as a matter of "public policy." The trial court rejected this argumetn and dismissed the plaintiff's claim. The plaintiff appealed.