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Walton v. Oz Bicycle Club Of Wichita, 1991 U.S. Dist. LEXIS 17655 (Dist Kan 1991)

Walton v. Oz Bicycle Club Of Wichita, 1991 U.S. Dist. LEXIS 17655 (Dist Kan 1991)

Eric Walton, Plaintiff, vs. Oz Bicycle Club Of Wichita, Defendant.

No. 90-1597-K

United States District Court For The District Of Kansas

1991 U.S. Dist. LEXIS 17655

November 21, 1991, Decided

November 22, 1991, Filed

COUNSEL: PLAINTIFF COUNSEL: David P. Calvert, Focht, Hughey, Hund & Calvert, 807 North Waco, Suite 300, Wichita, KS 67203

DEFENSE COUNSEL: Don D. Gribble, II, Donald N. Peterson, II, Kahrs, Nelson, Fanning, Hite & Kellogg, 200 West Douglas, Suite 630, Wichita, KS 67202

JUDGES: KELLY

OPINION BY: PATRICK F. KELLY

OPINION: Nearing the end of the sixth lap of the seven-lap bicycle race held in Hutchinson, Kansas on August 12, 1989, Eric Walton began to pull into the lead. Closely pursued by two other racers, Walton approached the intersection of Crazy Horse and Snokomo Streets. The course of the race required the racers traveling east on Crazy Horse to make a left turn at the intersection onto Snokomo.

MEMORANDUM AND ORDER

Leaning into the turn at about 30 miles per hour, Walton cut the northwest corner of the intersection about two feet from the curb. Flying past the corner, Walton was able to see for the first time the car stopped at the stop sign at the intersection and which had been hidden by the crowd of spectators lining Crazy Horse. Walton turned to the right to avoid the car. His bike went off the roadway, striking the open door of the van owned by the race’s referee, Gaylen Medders. As a result of this accident, Walton sustained injuries which have formed the basis for the present action.

The defendant, Oz Bicycle Club of Wichita, Kansas, has moved for summary judgment on the claims advanced by Walton. Oz presents three arguments in support of its motion: (1) that the release signed by Walton bars the present action; (2) that Walton assumed the risk of the injuries received; and (3) that Oz assumed no duty of due care towards Walton.

[HN1] Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). [HN2] In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). [HN3] The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party need not disprove plaintiff’s claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).

[HN4] In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. “In the language of the Rule, the nonmoving party must come forward with ‘specific facts showing that there is a genuine issue for trial.'” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita). [HN5] One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

Walton was an employee of the Continental Cyclery Company in Hutchinson, Kansas, and participated in the race as a member of the Continental Cyclery team. An experienced racer, Walton had participated in 20 to 30 prior races, and had experienced two prior accidents while racing.

The August 12 race in Hutchinson was sponsored by Continental Cyclery, as well as a local pizzeria and mortuary. The race was conducted under the auspices of defendant Oz Bicycle Club of Wichita, which conducts periodic bicycle races as a part of its “Toto Racing Series.” For the August 12 race, local sponsors arranged for standby emergency medical and law enforcement services, planned the course of the race, and arranged for corner marshals along the route. Medders, the chairman of Oz, took participant applications, and served as the official and timer of the race.

Entrants in the race paid an $ 8.00 fee to Oz. In addition, entrants were required to sign a release. This release provides in part:

NOTICE: THIS ENTRY BLANK AND RELEASE FORM IS A CONTRACT WITH LEGAL CONSEQUENCES. READ IT CAREFULLY BEFORE SIGNING.

In consideration of the acceptance of my application for entry in the above event, I hereby freely agree to and make the following contractural [sic] representations and agreements.

I fully realize the dangers of participating in a bicycle race and fully assume the risks associated with such participation including, by way of example, and not limitation, the following: the dangers of collision with pedestrians, vehicles, other racers, and fixed or moving objects; the dangers arising from surface hazards, equipment failure, inadequate safety equipment, and weather conditions; and the possibility of serious physical and/or mental trauma or injury associated with athletic cycling competition.

I hereby waive, release and discharge for myself, my heirs, executors, administrators, legal representatives, assigns, and successors in interest (hereinafter collectively “successors”) any and all rights and claims which I have or which may hereafter accrue to me against the sponsors of this event, the Oz Bicycle Club, the promoter and any promoting organization(s), property owners, law enforcement agencies, all public entities, special districts, and properties (and their respective agents, officials, and employees) through or by which the events will be held for any and all damages which may be sustained by me directly or indirectly in connection with, or arising out of, my participation in or association with the event, or travel to or return from the event.

Similar releases were contained in the registration forms for each of the 20 to 30 prior races in which Walton had participated. Walton was given an opportunity to read the release. Having read similar forms on prior occasions, Walton did not read this release. Walton was aware of what was in the release and understood its terms.

Walton’s participation in the race was not required. However, Walton voluntarily wished to enter the race and knew that signing the release was a requirement for participation. Walton recognized the dangers of participating in a bike race. Walton signed the release.

Prior to the start of the race, Medders had warned the participants that the course of the race was not closed to traffic, and during the course of the race Walton had encountered other cars on the course. However, as he cut the corner at the end of the sixth lap, Walton had not thought of the possibility of a car, hidden by the crowd, laying in his path on the other side of the intersection.

The status of the doctrine of assumption of risk is not clear under present Kansas law. In Shufelberger v. Worden, 189 Kan. 379, 385, 369 P.2d 382 (1962), the court indicated that the doctrine of assumption of risk was generally limited to situations involving an “employment relationship or [a] contractual relationship, express or implied.” By a process of slow osmosis, the Kansas Supreme Court has held most recently that the doctrine of assumption of risk is “limited to cases such as this where a master-servant relationship is involved.” Borth v. Borth, 221 Kan. 494, 499, 561 P.2d 408 (1977). To what extent this evolution, reflected in Smith v. Blakey, 213 Kan. 91, 101, 515 P.2d 1062 (1973); Ballhorst v. Hahner-Forman-Cale, Inc., 207 Kan. 89, 484 P.2d 38 (1971); Perry v. Schmitt, 184 Kan. 758, 339 P.2d 36 (1959); George v. Beggs, 1 Kan.App.2d 356 Syl para. 1, 564 P.2d 593 (1977), is the result of an intentional, conscious modification of the law is uncertain. At no time have the state courts considered the impact of the adoption of comparative fault in relation to the continued validity of the doctrine of assumption of risk. But it is unnecessary to resolve the issue of assumption of risk here, since the court finds that the release signed by Walton is a valid exculpatory agreement which bars the present action.

In his brief in opposition to the motion for summary judgment, Walton presents several arguments in opposition to the application of the release agreement. Walton contends that the agreement reflects “overreaching” by the defendant, and cites the long list of persons protected by the agreement, including property owners in the area, law enforcement officers, and all public entities. This argument might be considered if the defendant were such a party, unconnected with either the race or the release agreement. Here, however, Oz is the bicycle club which helped to organize the race, took the applications of participants, and required the release agreements to be signed by those participants. In inserted, typed language, the agreement specifically lists “Oz Bicycle Club” as one of the parties protected by the release agreement.

Citing several Kansas cases, Walton contends that the law does not favor exculpatory agreements. This is certainly correct. But the cases cited by Walton merely establish that such agreements are disfavored and therefore are to be strictly construed. They do not establish that exculpatory agreements are inherently void as contrary to law. Mid-America Sprayers, Inc., v. United States Fire Ins. Co., 8 Kan.App.2d 451, 660 P.2d 1380 (1979).

It is correct, as Walton notes, that exculpatory agreements are void where they are contrary to established public interests. Hunter v. American Rentals, 189 Kan. 615, 371 P.2d 131 (1962); In re Estate of Shirk, 186 Kan. 311, 350 P.2d 1 (1960). Yet, despite this suggestion, Walton does not attempt to explain how bicycle racing affects important and established public interests.

The position advanced by Walton has been expressly rejected elsewhere. [HN6] Voluntary sporting competitions are not matters of important public interest, as that term is used in considering which matters may not be the subject of exculpatory agreements. “There is no compelling public interest in facilitating sponsorship and organization of the leisure activity of bicycle racing for public participation.” Okura v. United States Cycling Fed., 186 Cal.App.3d 1462, 231 Cal. Rptr. 429 (1986). See also Dobratz v. Thomson, 161 Wis.2d 502, 468 N.W.2d 654 (1991) (water skiing); Barnes v. Birmingham Intern. Raceway, Inc., 551 So.2d 929 (Ala. 1989) (automobile racing); Milligan v. Big Valley Corp., 754 P.2d 1063 (Wyo. 1988) (downhill skiing); Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704 (Wyo. 1987) (mock gunfight conducted by gun club); McAtee v. Newhall Land & Farming, 169 Cal.App.3d 1031, 216 Cal.Rptr. 465 (1985) (motorcross racing); Hulsey v. Elsinore Parachute Center, 168 Cal.App.3d 333, 214 Cal.Rptr. 194 (1985) (sky diving); Williams v. Cox Enternrises, Inc., 159 Ga.App. 333, 283 S.E.2d 367 (1981) (10,000 meter foot race). Even the fact that a participant considers the sport to be more than a “hobby” and hopes to someday participate at an Olympic level, will not raise the matter to a compelling public interest. Buchan v. U.S. Cycling Fed., 227 Cal. App.3d 134, 277 Cal. Rptr. 887 (1991).

Walton also argues that the danger herein — an automobile on the course of the race — was not a hazard normally associated with bicycle competitions, and cites the decision of the California Court of Appeals in Bennett v. United States Cycling Fed., 193 Cal.App.3d 1485, 239 Cal. Rptr. 55 (1987), in which the court found that an automobile’s presence on the course of the raceway was found to be a risk not normally associated with bicycle racing, and therefore not within the contemplation of an exculpatory agreement signed by the plaintiff. Unlike Bennett, where the bicycle race involved a “closed race” in which automobiles were not to be permitted on the raceway, the uncontradicted facts herein establish that the presence of automobiles on the course of the Toto race in Hutchinson was not unknown to the participants. Rather, the fact that the course was open to normal traffic was explicitly made known to the participants. Under the factual background of the case, there is no basis for the contention that the plaintiff could not or should not have anticipated the presence of automobiles on the raceway as a danger reflected in the release agreement.

[HN7] Although exculpatory agreements have an inherent potential for abuse and overreaching, and hence are subjected to close scrutiny by the courts, these agreements have a vital role to play in allowing the individual to participate in activities of his own choice. If the individual has entered into an exculpatory clause freely and knowingly, and the application of the clause violates no aspect of fundamental public policy, the individual’s free choice must be respected. Here, public policy supports, rather than detracts from, the application of the exculpatory clause. “Unless courts are willing to dismiss such actions without trial, many popular and lawful recreational activities are destined for extinction.” Buchan, 227 Cal.App.3d at 147.

IT IS ACCORDINGLY ORDERED this 21 day of November, 1991, that the defendant’s motion for summary judgment (Dkt. No. 35) is hereby granted.

PATRICK F. KELLY, JUDGE

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