Defendants admitted that Combs was injured while in the infield, but filed a motion for summary judgment based upon a waiver signed by Combs; also, Siloam claimed that Combs assumed the risk by voluntarily participating in the speedway activities. Combs had volunteered to help in the infield in exchange for admission. Combs claimed the document he signed was a sign-in sheet and did not release defendants.

 Oklahoma Waiver Law (Shown in Italics)

The Oklahoma Supreme Court in Manning v. Brannon (1998) and Schmidt v. United States (1996) established the validity of liability waivers.

• The Oklahoma Supreme Court has long recognized that exculpatory contracts, i.e., a contract to avoid liability for damages also known as a ‘waiver’ or ‘release,’ may be valid and enforceable.” 
• While these exculpatory promise-based obligations are generally enforceable, they are distasteful to the law.
• For a validity test the waiver must pass a gauntlet of judicially-crafted hurdles:

Hurdle 1— their language must evidence a clear and unambiguous intent to exonerate the would-be defendant from liability for the sought-to-be-recovered damages;

Hurdle 2 – at the time the contract (containing the clause) was executed there must have been no vast difference in bargaining power between the parties; and

Hurdle 3 – enforcement of these clauses must never (a) be injurious to public health, public morals or confidence in administration of the law or (b) so undermine the security of individual rights vis-à-vis personal safety or private property as to violate public policy.

• The Supreme Court further stated that such a clause “will never avail to relieve a party from liability for intentional, willful or fraudulent acts or gross, wanton negligence.”  

As to the first hurdle, the Supreme Court explained that

1.   Both the identity of the tortfeasor to be released and the nature of the wrongful act — for which liability is sought to be imposed — must have been foreseen by, and fall fairly within the contemplation of, the parties.
2.  The clause must also identify the type and extent of damages covered — including those to occur in futuro.

The Racetrack Waiver

The waiver in the present case explicitly provides that

EACH OF THE UNDERSIGNED

RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the promoter, participants, racing association, . . . track operator, track owner, officials, car owners, drivers, pit crews, . . . owners and lessees of premises used to conduct the event and each of them, their officers and employees, all for the purposes herein referred to as “releasees,” from all liability to the undersigned . . . 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, whether caused by the negligence of the releasees or otherwise while the undersigned is in or upon the restricted area, and/or, competing, officiating in, observing, working for, or for any purpose participating in the event.

The Combs court pointed out that:

• The waiver refers to “negligence” of the defendants three times.
• It also states that the undersigned “HEREBY ASSUMES FULL RESPONSIBILITY FOR AND RISKS OF BODILY INJURY, DEATH OR PROPERTY DAMAGE due to the negligence of releasees or otherwise while in or upon the restricted area and/or while competing, officiating, observing, or working for or for any purposes participating in the event.”
• It also describes with particularity the entities and individuals protected under the waiver.
• Further, the waiver in this case identifies, as protected parties, “owners . . . of [the] premises,” as well as the “track operator” and “track owner.” It further identifies, as protected parties, “lessees of premises” in addition to “car owners” and “drivers.”
• The release clearly demonstrates an intent to relieve all the Defendants named in the petition from fault for negligence.

The court concluded that the waiver passed the first hurdle established by the Supreme Court. The Combs court looked again to the Supreme Court in determining whether the waiver met the second hurdle.

The Oklahoma Supreme Court explained that courts consider two factors in determining equality of the parties’ bargaining power:

1. the importance of the subject matter to the physical or economic well-being of the party agreeing to the release and
2. the amount of free choice that party could have exercised when seeking alternate services.

The Combs court felt that attending a car race at a speedway – “is plainly not of any significant importance to the physical or economic well-being of Combs who states in his deposition he was not even a volunteer, much less an employee, at the time of the accident, and who states he was simply in the infield area to observe the race without having to pay for a stadium ticket.”

Regarding the second factor, the Combs court said the second factor was not applicable because Combs was not seeking any “services” at the Speedway, but was merely there for entertainment. The court then concluded that the waiver passed the second hurdle.

The third hurdle required by the Supreme Court provides that  enforcement of these clauses must never

1. be injurious to public health, public morals or confidence in administration of the law or 
2. so undermine the security of individual rights vis-à-vis personal safety or private property as to violate public policy.

The Combs court concluded that the Siloam waiver Combs signed for entry into the racetrack infield would in no way “injure public morals, public health or confidence in the administration of the law.” It added that the waiver would not “destroy . . . rights to personal safety or private property.” Combs could have simply decided to not enter the infield.

The court ruled that enforcement of the waiver did not violate public policy; thus, the third hurdle was satisfied. Further, the court ruled the waiver to be valid and enforceable.

Photo Credit: Thanks to Stuart Seeger via Flickr.