Beardslee v. Blomberg

— Appeal from an order of the Supreme Court at Special Term,, entered August 14, 1978 in Chemung County, which denied a motion to dismiss the complaint. On July 22, 1977, plaintiff, while a spectator at defendant Chemung Speedrome, an auto race track owned and operated by defendant Robert Blomberg, responded to a call for participants from the grandstand and volunteered to take part in a "Powder Puff Derby”, a stock car race for women. She sustained injuries when her vehicle struck a retaining wall of the race track allegedly as a result of defendant’s negligence in providing her with an unsafe vehicle, a defective helmet and in failing to supply her with a fire suit. Defendants moved to dismiss the complaint upon the ground that plaintiff had signed a release prior to entering the derby. Releases absolving recreational facilities, including auto raceways, from liability for their negligence have been upheld provided certain qualifications were met (see Ciofalo v Vic Tanney Gyms, 10 NY2d 294; Johnson v Thruway Speedways, 63 AD2d 204; Rotary v Spencer Speedway, 47 AD2d 127; Church v Seneca County Agrie. Soc., 41 AD2d 787, affd 34 NY2d 571; Gervasi v Holland Raceway, 40 AD2d 574; Solodar v Watkins Glen Grand Prix Corp., 36 AD2d 552). However, section 5-326 of the General Obligations Law (L 1976, ch 414, § 1), effective September 1, 1976, now provides, in part, that: "Every * * * agreement * * * in or in connection with, or collateral to any * * * ticket of admission * * * entered into between the owner or operator of any * * * place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.” Special Term concluded that under Johnson v Thruway Speedways (supra), where in dictum this court stated, without elaboration, that section 5-326 voids releases of liability for injuries arising 733 in connection with auto racing, the release signed by plaintiff was invalid. We disagree. Johnson merely considered the validity of a release executed by a spectator who was injured while watching a race; it did not address the issue presented by this appeal of whether a release executed by a participant in an auto race is valid. Therefore, Johnson is not controlling. Turning then to the statute’s applicability, it voids releases "in or in connection with, or collateral to” tickets of admission. Here, plaintiff paid an entrance fee and had been admitted to the grandstand to watch the races. Later, in response to a call for participants from the grandstand, she volunteered to take part in a race. It was in this connection that she signed the release, and not in connection with her admission ticket. Thus, the statute by its terms is plainly inapplicable since the release was neither "in [n]or in connection with, or collateral to” plaintiff’s admission ticket (see NY Legis Ann, 1976, p 71). The release absolves the defendants from liability for any injury plaintiff might sustain while in the "restricted area”, which includes the race track proper. It does not, however, specifically refer to equipment furnished by the defendants. Releases from liability for negligence are closely scrutinized and strictly construed, and a release general in its terms will not bar claims outside the parties’ contemplation at the time it was executed (Johnson v Thruway Speedways, supra). Furthermore, since the release herein is not entirely free of ambiguity, an issue of fact exists as to whether the risk of faulty equipment or the failure to furnish essential equipment was within the contemplation of the parties at the time it was executed (Lachs v Fidelity & Cas. Co. of N. Y., 306 NY 357, 364, mot for rearg den 306 NY 941; Rogers v Niforatos, 57 AD2d 984, 986). Order affirmed, without costs. Greenblott, J. P., Main and Herlihy, JJ., concur; Kane and Mikoll, JJ., concur in separate memoranda.