(Download) "Donald Gervasi v. Holland Raceway" by Supreme Court of New York # Book PDF Kindle ePub Free
eBook details
- Title: Donald Gervasi v. Holland Raceway
- Author : Supreme Court of New York
- Release Date : January 06, 1972
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 61 KB
Description
[40 A.D.2d 574 Page 574] Memorandum: Appellant's motion for summary judgment was denied, on the ground that "There are many questions of fact which
must first be determined before it would be possible to apply the law and determine whether or not the releases are valid".
The releases executed by the deceased Robert Kraemer, whose administratrix is a respondent herein, and respondent William
H. Robinson provided that persons signing the instruments completely and fully released the Raceway from any claims growing
out of injuries to persons at the track acting in the capacity of driver, laborer, pit man, mechanic, owner, participant,
spectator, repairman, or helper. A provision of the release stated that "The undersigned recognizes that automobile racing
is a hazardous sport or occupation and is entering into such activity * * * voluntarily, as an independent contractor and
not as an employee, servant or agent of any party to this agreement". Kraemer and Robinson were mechanics for individuals
whose automobiles were competing in races conducted by appellant Raceway. para. Respondents contend that the releases violated
public policy and are, therefore, invalid and unenforceable. In Ciofalo v. Vic Tanney Gyms (10 N.Y.2d 294), the Court of Appeals
cautioned that such exculpatory clauses must be carefully scrutinized and are not valid in certain types of contracts. The
court recognized, however, that where parties voluntarily entered into a contract in an activity where there was "no overriding
public interest" (p. 297), where there was no obligation to accept the plaintiff and where he, in turn, "was not required
to assent to unacceptable terms" (p. 298), the plaintiff could not later repudiate his agreement. The release in the case
at bar was clearly marked at the top and the bottom in bold face type "THIS IS A RELEASE", as was the case in 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). Theroux rejected the argument
that the instrument was violative of public policy. The same determination was reached in Solodar v. Watkins Glen Grand Prix
Corp. (36 A.D.2d 552). The respondent mechanics were not employees [40 A.D.2d 574 Page 575]