I've read the decision - Under New York law there IS a problem with the waivers in question that unfortunately is probably shared with many of the wavers we sign with tracks and organizers - they attempt to exempt the organizer and the track from liability for negligence. Laws on this vary from state to state, but under the applicable NY law, if the law applies to the release in question, the release is "wholly unenforceable."
Here's the relevant law:
[e]very covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admissions or similar writing, entered into between the owner or operator of any pool, gymnasium, 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 [*20] 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.
Here's the organizer's release:
In consideration of being permitted to join Empire Super Sprints, Inc. (hereinafter called "ESS") and being permitted to participate in or be a spectator at Empire Super Sprints, Inc. membership events during 2014 I hereby:
1. Release, waive, discharge, and promise not to sue ESS, any of it's [sic] officials, any of its members, any of it's [sic] sponsors, or car owners, drivers, pit crews, for personal injury or property damage which I sustain during 2014 arising out of an ESS event, whether my loss is caused by the negligence of ESS or it's [sic] members. This does not waive rights of suit in the event that an action is termed criminal within the jurisdiction of applicable [*5] law.
2. Agree to indemnify and hold harmless ESS, its officials and members for any loss, liability, damage, or cost which may incur due to my presence at an ESS event, whether I am competing, officiating, or observing an ESS event.
3. Assume the risks inherent in automobile racing and assume responsibility for the bodily injury or property damage which those risks can cause.
Here's the track's release:
In consideration of being permitted to compete, officiate, observe, work for, or participate in any way in the Event(s) pr 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), I, the undersigned, for myself, my personal representatives, heirs, and next of kin:
. . . .
3. Hereby release, waive, discharge and covenant not to sue the promoters, participants, [or others] . . . from all liability to the undersigned . . . for any and all loss [*6] or damage, and any claim or demands therefor on account of injury to the undersigned's person or property or resulting in death of the undersigned arising out of or related to the event(s), whether caused by the negligence of the releasees or otherwise.
4. Hereby agree to defend, indemnify and save and hold harmless the Releasees and each of them from any loss, liability, damage or cost they may incur due to claims brought against the releasees arising out of or related to the undersigned's injury or death from the event(s) whether caused by the negligence of the releasees or otherwise.
5. Hereby assume 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.
The judge found that Ward paid money to both the organizer and the track, and was not a professional racer - i.e., he wasn't making money from racing (like most, the family was spending massive amounts of money to go racing). He paid money to participate for fun (even though some prize money was available) and in those circumstances he was a "user" of a "recreational" facility and the statute operated to invalidate both waivers in their entirety.
One issue that I did not see raised in any of the case law cited in this decision was the issue of prize money and whether that transforms an event from "recreational" into "professional". I'm not sure if there's case law on that issue. If there is I assume it would have been cited by Stewart's lawyers but it was not cited by the court. Assuming Stewart appeals this decision that might be a big part of it.
Another item I noticed is there was an exception for "instruction." It was a skydiving case - basically if you are paying to receive instruction it is not a recreational activity. That distinction might save many HPDE's from having the same thing happen to them.
Once again, this is a ruling under the specific New York state law cited above. Laws on these types of releases vary considerably from state to state and I would not be at all surprised to see a completely different result given exactly the same facts had they occurred somewhere other than New York.
Electric Mayhem Racing