Opinion
January 14, 1971
Appeal from an order of the Supreme Court at Special Term, entered April 27, 1970 in Schuyler County, which granted a motion by defendants for summary judgment dismissing the complaint. Martin A. Krinner, a race car driver, was killed while participating as a contestant in a sports car race sponsored by respondents. This is an action for his wrongful death. Appellants allege that common-law negligence and the breach of respondents' duty of care to decedent resulted in his being struck by another vehicle while he was standing beside his disabled vehicle off the racing surface. Respondents contend that a release executed by decedent as a condition to entering the race bars recovery. The appellants argue that the release is void as against public policy; and further, that its language is too vague and unclear to be enforceable. The first contention urged by the appellants is based on the principle that the law looks with disfavor upon an attempt by a party to avoid liability for his own wrongful acts. As a general proposition there is merit in this contention. It is well established, however, that an exculpatory agreement or convenant not to sue is recognized by our courts. (49 N.Y. Jur., Release and Discharge, § 23; Ciofalo v. Vic Tanney Gyms, 10 N.Y.2d 294.) Such an agreement is, nevertheless, scrutinized with care. If the intent of the parties is not clearly expressed; or the contracting parties do not have equal bargaining power; or the agreement is contrary to public policy, the courts will not hesitate to nullify it. In the instant case the release was a voluntary one. Decedent was free to refuse participation in the race under the conditions imposed. In the Ciofalo case, in upholding a contract between a private health club and a member, the court said (p. 294): "Here there is no special legal relationship and no overriding public interest which demand that this contract provision, voluntarily entered into by competent parties, should be rendered ineffectual. * * * Plaintiff, * * * was not required to assent to unacceptable terms, or to give up a valuable legal right, as a condition precedent to obtaining employment or being able to make use of the services rendered by a public carrier or utility." The fact that there was a certain amount of prestige associated with this race, as compared to other races, does not alter the situation. Respondents, in sponsoring the race and being aware of the risks of financial loss due to accidents, had the right to impose such an exculpatory agreement. There is nothing in the relationship of the parties or the agreement which, in our opinion, runs counter to public policy. ( Theroux v. Kedenburg Racing Assn., 50 Misc.2d 97, affd. 28 A.D.2d 960, mot. for lv. to app. den. 20 N.Y.2d 648.) Finally, we believe the instrument was sufficiently specific and clear to exempt respondents from liability for negligence in the instant action. It provided among other things, the following: "And I hereby assume all risks of any liability for injury or damages to my person or property or of injury resulting in death while upon the premises * * * however caused and whether by negligence or otherwise". Consequently, we conclude Special Term properly granted summary judgment. Judgment affirmed, without costs. Herlihy, P.J., Aulisi, Staley, Jr., Cooke and Sweeney, JJ., concur.