By Doyice Cotten

Michael Besner was struck and killed by a motorcycle that accidentally left a racecourse. Michael attended the event “as a spectator and to take photos.” After signing the waiver of liability, he was inside the Park watching a motorcycle race. Concrete barriers and ropes separated the racecourse “from parking and where everyone walks.”  Michael was standing “in the spectator/parking area,” that is, “in the area inside the admission gate but not within the racecourse area.”

A motorcycle went airborne over the racecourse boundary striking and killing Michael.  Selena Besner, Michael’s widow, sued Terra Adventures Inc., and the promoter of the Event, Crossroads Racing. The defendants moved for summary judgment based on the waiver. The trial court granted the motion, and Selena appeals here (Besner v. Terra Adventures, Inc., 2022).

 Waiver

Pertinent parts of the waiver required of all entrants include:

IN CONSIDERATION of being permitted to compete, officiate, observe, work, or participate in any way in the EVENT(S) or 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), EACH OF THE UNDERSIGNED, for himself, his personal representatives, heirs, and next of kin: [bold added.]

1. 1. Acknowledges, agrees, and represents that he has or will immediately upon entering any of such RESTRICTED AREAS, and will continuously thereafter, inspect the RESTRICTED AREAS which he enters, and he further agrees and warrants that, if at any time, he is in or about RESTRICTED AREAS and he feels anything to be unsafe, he will immediately advise the officials of such and if necessary will leave the RESTRICTED AREAS and/or refuse to participate further in the EVENT(S).
   2. HEREBYRELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the promoters, participants, racing associations, sanctioning organizations or any subdivision thereof, track operators, track owners, officials, competition vehicle owners, drivers, pit crews, rescue personnel, any persons in any RESTRICTED AREA, promoters, sponsors, advertisers, owners and leassees [sic] of premises used to conduct the EVENT(S), premises and event inspectors, surveyors, underwriters, consultants and others who give recommendations, directions, or instructions or engage in risk evaluation or loss control activities regarding the premises or EVENT(S) and each of them, their directors, officers, agents and employees, all for purposes herein referred to as “Releasees,” FROM ALL LIABILITYTO THE UNDERSIGNED, his personal representatives, assigns, heirs, and next of kin FOR ANY AND ALL LOSS OR DAMAGE, AND ANY CLAIM OR DEMANDS THEREFOR ON ACCOUNT OF INJURY TO THE 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.

Individuals who wanted to “access” the racecourse and otherwise “restricted” areas then had to register and pay a separate registration fee and “were given a special sticker and equipment to distinguish them from spectators and other unauthorized individuals.”

The Major Issue – AMBIGUITY!

In Indiana, a waiver is a contract and is governed by the standard rules of contract law. So the first task of the appellate court was to determine if the language at issue is ambiguous. The court stated:

 If it isn’t, “we give it its plain and ordinary meaning in view of the whole contract, without substitution or addition.” If the language is ambiguous, our task is to determine the meaning intended by the parties when they made the agreement.

The major language at issue was the word “observe.”

Ambiguity Argument

Selena first argues the first clause of the Release provides that the Release applies to all those permitted to “compete, officiate, observe, work, or participate in any way” in the Event. Initially, Selena contended:

 the word “observe” is ambiguous in this setting, and therefore subject to judicial interpretation, because it could refer to a “mere spectator” but is also regularly used to describe a person monitoring a race in an “official capacity” to ensure compliance with rules.

We agree with Selena that, at least in the racing world, the word “observe” could have two meanings and is therefore ambiguous.

Thus, the court needed to determine which meaning was intended in the Release.

Selena argues that, for several reasons, it should be interpreted in the narrower sense of observing a race in an official capacity. She cited two general principles of contract interpretation.

First, “[w]hen there is ambiguity in a contract, it is construed against its drafter.” Second, a “self-exculpatory” release like the one at issue here—a release that shields a party from liability for its own negligence—“is to be construed strictly against the party protecting itself thereby.”

Selena then argued that because the word “observe” appears alongside “a series of verbs that relate to administering the Event”—“compete,” “officiate,” “work,” and “participate”—it should be interpreted as such. She pointed out that the Indiana Supreme Court has repeatedly stated that the meaning of a word in a list is informed by the other words in the list.

Finally, Selena pointed out that if the word “observe” includes mere spectators, then everyone at the Park would fall into the first category of persons covered by the waiver.

 The court clarified that while the trial court referred to Michael as a “participant” apparently because he was taking photographs, there was no evidence  Michael was a sanctioned or official photographer for the Event or that the event organizers even knew he would be taking photos.

 Ruling

For all these reasons, we agree with Selena that the word “observe” in the Release should be interpreted to refer to those observing a race in an official capacity. And because Michael was a mere spectator, the trial court erred by granting the Racetrack summary judgment based on the word “observe.”

The court reversed the trial court’s grant of summary judgment to the Racetrack.

Photo Credit: Thanks to   via Flickr.