Maness v. Santa Fe Park Enterprises
Annotate this Case
FOURTH DIVISION
August 27, 1998
No. 1-96-4215
LEANNE MANESS, Indiv. and as ) APPEAL FROM THE
Special Adm'r of the Estate ) CIRCUIT COURT OF
of Edward L. Maness, Deceased, ) COOK COUNTY
)
Plaintiff-Appellant, )
)
v. ) No. 95 L 10687
)
SANTA FE PARK ENTERPRISES, INC., )
d/b/a Santa Fe Speedway, and )
NATIONAL ASSOCIATION FOR
STOCK CAR AUTO RACING, INC., ) HONORABLE
) PADDY H. McNAMARA,
Defendants-Appellees. ) JUDGE PRESIDING.
JUSTICE McNAMARA delivered the opinion of the court:
Plaintiff's decedent, Edward L. Maness (Maness), suffered an
ultimately fatal heart attack while participating in a stock car race
at Santa Fe Speedway (Santa Fe) on July 10, 1993. Plaintiff, Leanne
Maness (plaintiff), filed suit individually and as special
administrator of the estate of her husband, seeking damages as a
result of Edward's death. On October 23, 1996, the trial court
granted the motion of defendants, Santa Fe Enterprises, Inc., d/b/a
Santa Fe Speedway, and National Association for Stock Car Auto Racing,
Inc. (NASCAR) (defendants), to dismiss plaintiff's second amended
complaint with prejudice. Plaintiff appeals that order. We affirm.
The relevant facts are as follows.
On July 10, 1993, Maness participated in an auto race at
defendants' race track. At the time Maness was 51 years old and had
been racing stock cars for many years. During the race Maness
suffered an ultimately fatal heart attack. Maness died on July 11,
1993. Plaintiff was named special administrator of her husband's
estate.
Prior to participating in the July 10, 1993, race, Maness signed
three releases/waivers of liability expressly agreeing to release,
waive, and discharge defendants from all liability for his injury or
death whether caused by the negligence or gross negligence of
defendants or otherwise.
In April 1993, Maness applied for NASCAR membership and a NASCAR
license in order to participate in NASCAR sponsored racing events. In
exchange for becoming a member and receiving a NASCAR license Maness
paid a $65 fee and signed a "Release and Waiver of Liability and
Indemnity Agreement," which provided in pertinent part that Maness:
"1. HEREBY RELEASES, WAIVES, DISCHARGES AND
COVENANTS NOT TO SUE the promoter, participants,
racing association, sanctioning organization or any
subdivision thereof, track operator, track owner, ***
from all liability to the undersigned, his/her personal
representatives, assigns, heirs and next of kin for any
and all loss or damage, and any claim or demands
therefore on account 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(S);
2.HEREBY AGREES TO INDEMNIFY AND SAVE AND HOLD
HARMLESS the 'releasees' and each of them for any loss,
liability, damage, or cost they may incur due to the
presence of the undersigned in or upon the restricted
area or in any way competing, officiating, observing,
or working for, or for any purpose participating in the
EVENT(S) and whether caused by the negligence or gross
negligence of the 'releasees' or otherwise.
3. HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY RISK
OF BODILY INJURY, DEATH OR PROPERTY DAMAGE due to the
negligence or gross negligence of 'releasees' or
otherwise while in or upon the restricted area and/or
while competing, officiating, observing, or working for
or for any purpose participating in the EVENT(S)."
Prior to the July 10, 1993, race, Maness also signed a competitor
permit, which contained a release and waiver of liability agreement
identical to that contained in the NASCAR membership application.
Maness signed this release in consideration for being allowed to
compete in the race.
Moreover, on July 10, 1993, Maness paid a fee and obtained a pit
permit, which allowed him to enter the pit area at the race track and
to compete in the races being held that evening. The pit permit
contained the following release agreement, which Maness signed:
"I hereby release speedway owner, operator, promoter,
sanctioning body and any other person or persons
connected with the racemeet for which this Pit Permit
has been issued from all liability for personal injury
or property damage whether arising from claims of
negligence, gross negligence or any other cause, while
preparing, practicing, qualifying or participating in
or attending said racemeet."
On July 6, 1995 plaintiff, individually and as special
administrator of her husband's estate, filed a two-count complaint
against defendants. Count I, sounding in negligence/wrongful death,
alleged that defendants negligently delayed providing medical
assistance to Maness, causing his heart attack to become
"irreversible" and resulting in his death. Count II was brought by
plaintiff individually and alleged infliction of mental distress. The
trial court granted defendants' motion to dismiss and granted
plaintiff leave to file her first amended complaint.
Plaintiff's first amended complaint set forth expanded versions
of the two counts contained in the original complaint. Count I
sounded in negligence, alleging that Maness was participating in a
race when his car struck the track's outside wall and rolled to a stop
in the track's infield; that Maness gave no hand signal to indicate
that he was not in need of medical aid; that defendants negligently
failed to immediately stop the race and dispatch medical personnel;
that defendants did not dispatch medical personnel until the next race
event was completed; that as a proximate result of this negligence
Maness's heart attack "went unattended for a protracted amount of time
so that it became irreversible"; and that the "danger of not being
promptly sent medical assistance was not foreseeable because Maness
"had a reasonable expectation that he would receive prompt medical
attention." Count II attempted to state a cause of action for
"extreme and outrageous misconduct" alleging:
"19. That the plaintiff, Leanne Maness, was the
wife of Edward L. Maness; she was present in the
grandstands of the defendants' track; she saw that her
husband needed help; she saw no movement in his car;
she saw no signal from him indicating that he was all
right; she saw his pit crew pleading for someone to go
help; she heard others asking officials to send help;
she ran to the starter's gate to go help her husband;
defendants' employees stopped her; defendants'
employees heard her yells, screams and crying; and she
observed the defendants' employees refusing to allow a
registered nurse from going to her husband's
assistance.
20. That the defendants ignored all entreaties
for help, refused to allow others to help and observed
plaintiff's anguish resulting therefrom.
21. That as a direct and proximate result of the
aforesaid extreme and outrageous misconduct of
defendants' agents, servants and employees, the
plaintiff, Leanne Maness, sustained severe and
permanent mental and emotional trauma and shock."
The trial court granted defendants' motion to dismiss the first
amended complaint with prejudice on July 11, 1996. The court found
count I to be barred by the releases signed by Maness, which "were
clearly intended to cover any and all risk of death due to the
negligence or gross negligence of the defendants." Count II was
dismissed for failure to state a cause of action, as Illinois law does
not recognize the tort of "outrageous misconduct" and the facts
alleged were insufficient to state a cause of action for intentional
or negligent infliction of emotional distress. The court granted
plaintiff leave to file her second amended complaint.
On July 31, 1996, plaintiff filed a four-count second amended
complaint. Counts I and II were repled from the first amended
complaint to preserve them for appeal. Count III alleged the breach
of an implied in fact contract between defendants and Maness under
which defendants were required to provide "reasonably prompt emergency
medical personnel to aid plaintiff's decedent in the event that he
became injured or ill." Count IV alleged that defendants
intentionally failed to promptly provide medical assistance to Maness.
Defendants moved to dismiss counts I and II in accord with the court's
July 11, 1996 order; to dismiss count III under section 2-619 of the
Code of Civil Procedure (the Code)(735 ILCS 5/2-619 (West 1996)) as
barred by the releases signed by Maness; and to dismiss count IV under
section 2-615 of the Code (735 ILCS 5/2-615 (West 1996)) on statute of
limitations grounds and for failure to state a cause of action.
On October 23, 1996, the trial court granted defendants' motion
to dismiss plaintiff's second amended complaint with prejudice.
Counts I and II were dismissed for the reasons stated in the court's
July 11, 1996, order. Count III was dismissed based upon the releases
signed by Maness, which the court found to clearly absolve defendants
from liability for negligent and grossly negligent acts. The court
found that no implied contract to provide prompt medical assistance
could coexist with these express waivers of liability. Count IV was
dismissed for failure to state a cause of action. Plaintiff appeals
from this order.
On appeal plaintiff contends that: (1) the trial court erred in
ruling that the releases signed by Maness defeated plaintiff's claim
for defendants' negligent failure to promptly provide medical
assistance; (2) the trial court erred in dismissing count II because
it stated a valid, recognized cause of action for outrageous
misconduct; (3) the trial court erred in dismissing count III because
it stated a valid cause of action for breach of an implied in fact
contract; and (4) the trial court erred in dismissing count IV, which
pled a cause of action for intentionally withholding medical
assistance.
Plaintiff first contends that the trial court erred in ruling
that the releases signed by Maness defeated her claim for defendants'
negligent failure to promptly provide medical assistance to Maness.
Specifically, plaintiff contends that the delay in providing medical
treatment during Maness' heart attack was not the type of risk that
ordinarily accompanies auto racing and therefore was not covered by
the signed releases. We disagree.
In general, exculpatory contracts, such as the releases signed by
Maness, are valid and enforceable in Illinois as long as they are not
violative of public policy and there is not a unique relationship
between the parties such as common carrier/passenger or
employer/employee, which militates against enforcement of the
agreement. Lohman v. Morris, 146 Ill. App. 3d 457, 497 N.E.2d 143
(1986); Harris v. Walker, 119 Ill. 2d 542, 519 N.E.2d 917 (1988). Our
courts have consistently held that exculpatory contracts, such as the
releases signed by Maness, bar negligence claims in the auto racing
context. Schlessman v. Henson, 83 Ill. 2d 82, 413 N.E.2d 1252 (1980);
Koch v. Spalding, 174 Ill. App. 3d 692, 529 N.E.2d 19 (1988); Morrow
v. Auto Championship Racing Ass'n, 8 Ill. App. 3d 682, 291 N.E.2d 30
(1972); Rudolph v. Santa Fe Park Enterprises, Inc., 122 Ill. App. 3d
372, 461 N.E.2d 622 (1984); Lohman, 146 Ill. App. 3d at 461, 497 N.E.2d at 145.
The releases signed by Maness contain broad exculpatory language
that clearly releases defendants from all liability for personal
injury or death resulting from their negligence, including their
alleged delay in providing prompt medical assistance to Maness. The
decision in Schlessman is instructive on this point. Mr. Schlessman
was injured while participating in a stock car race when a portion of
the track collapsed, causing his car to crash. Before participating
in the race, Schlessman signed a broad release releasing defendants
from "all liability" to him "whether caused by the negligence of
Releasees or otherwise" while he was in the restricted area.
Plaintiff argued that the occurrence was not within the terms of the
release. In holding plaintiff's negligence claim against the track
owner barred by the release the court stated:
"The release in question was designed to encompass all
claims against defendant based on its negligence, even
though the precise cause of the accident may have been
extraordinary. The very nature of the parties' activity
requires this result, absent contrary legislation."
(Emphasis added.) Schlessman, 83 Ill. 2d at 86, 413 N.E.2d
at 1254.
Maness signed three similarly broad releases releasing defendants
from "any and all loss or damage, and any claim or demands therefore
on account of the 'releasees' or otherwise" and from "all liability
for personal injury or property damage whether arising from claims of
negligence, gross negligence, or any other cause." Maness expressly
assumed "full responsibility for ANY RISK OF BODILY INJURY, DEATH, or
PROPERTY DAMAGE due to the negligence or gross negligence of
'releasees' or otherwise." As in Schlessman, these releases were
clearly designed to cover all claims against defendants based on their
negligence, including their alleged negligent delay in providing
medical assistance to Maness.
Plaintiff attempts to circumvent the application of these
releases by arguing that the releases do not bar her negligence claim
because the risk faced by Maness (a delay in providing medical
treatment during Maness' heart attack) was not the type of risk that
ordinarily accompanies auto racing and was not foreseeable to Maness.
We reject this argument.
The risk of requiring medical attention during a race is one that
ordinarily accompanies the dangerous sport of auto racing. Plaintiff
admitted as much in her pleadings. Paragraph 21 of count I states:
"Plaintiff's decedent had a reasonable expectation that he would
receive prompt medical attention under the circumstances as
aforesaid." Incidents requiring medical attention are common at
racetracks. Maness, as an experienced racer, expected prompt and
adequate medical care at every race. Likewise, he should have
expected that negligence on the part of defendants regarding the
medical care provided was possible and could result in serious injury
or death to participants in the race.
The fact that Maness could not foresee the exact circumstances
necessitating prompt medical assistance is irrelevant. As our supreme
court noted in Schlessman:
"A myriad of factors, which are either obvious or
unknown, may singly or in combination result in
unexpected and freakish racing accidents. Experienced
race drivers, such as plaintiff, are obviously aware of
such occurrences and the risks attendant to the sport
of auto racing. The parties may not have contemplated
the precise occurrence which resulted in plaintiff's
accident, but this does not render the exculpatory
clause inoperable. In adopting the broad language
employed in the agreement, it seems reasonable to
conclude that the parties contemplated the similarly
broad range of accidents which occur in auto racing."
(Emphasis added.) Schlessman, 83 Ill. 2d at 86, 413 N.E.2d
at 1254.
Defendants' reliance on Simpson v. Byron Dragway, Inc., 210 Ill. App.
3d 639, 569 N.E.2d 579 (1991), is misplaced. The driver in Simpson
was killed when his race car struck a deer that had run onto the
racetrack. The court held that the risk of an animal running onto the
racetrack was not the type of risk that ordinarily accompanied the
sport of auto racing. Therefore the incident was not covered by the
release signed by plaintiff.
The risk of requiring medical attention during a race, unlike the
risk of hitting a stray deer that has wandered onto a racetrack, is
one that ordinarily accompanies auto racing as evidenced by
plaintiff's admission that Maness had a reasonable expectation of
receiving prompt medical attention. Maness accepted this risk and
agreed to exculpate defendants from any alleged negligence in
connection with it when he executed the broad releases expressly
releasing defendants from all liability for personal injury and death
arising from any negligence on their part.
Plaintiff's argument that the releases do not apply because
Maness was no longer participating in the event at the time of
defendants alleged delay in sending medical assistance is untenable.
The release and waiver of liability agreement and the competitor
permit signed by Maness specifically state that defendants are
released from liability for their negligent and grossly negligent acts
"while the undersigned is in or upon the restricted area." The
definition of restricted area expressly includes the infield where
Maness sat in his car during defendants' alleged delay in providing
medical assistance. The releases apply to defendants' conduct and the
trial court did not err in finding count I barred by them.
Plaintiff next contends that the trial court erred in dismissing
count II because it states a valid, recognized cause of action for
outrageous misconduct. We disagree.
Relying on Doe v. Calumet City, 161 Ill. 2d 374, 641 N.E.2d 498
(1994), plaintiff contends that Illinois courts recognize a tort for
outrageous misconduct. However, the opinion in Doe makes it clear
that outrageous misconduct is one element of the tort of intentional
infliction of emotional distress, not a separate and distinct tort.
Doe, 161 Ill. 2d at 392, 641 N.E.2d at 506. Count II does not state a
cause of action as Illinois courts do not recognize a cause of action
for outrageous misconduct. Nor does plaintiff state a cause of action
for intentional or negligent infliction of emotional distress.
A bystander, such as plaintiff, cannot recover for negligent
infliction of emotional distress unless she establishes that: (1) she
was in the "zone of danger"; (2) she had a reasonable fear for her own
safety; and (3) she suffered physical injury or illness resulting from
the alleged emotional distress. Rickey v. Chicago Transit Authority,
98 Ill. 2d 546, 457 N.E.2d 1 (1983). Count II fails to allege any of
these requisite elements. In order to be in the "zone of danger" a
bystander "must have been in such proximity to the accident in which
the direct victim was physically injured that there was a high risk to
[her] of physical impact." Rickey, 98 Ill. 2d at 555, 457 N.E.2d at
5. Here plaintiff alleges that she was in the grandstands when she
witnessed defendants' negligent failure to provide prompt medical
assistance to her husband, who was in the infield of the track. There
was certainly no risk of physical impact to her. Moreover, count II
fails to allege that plaintiff had a reasonable fear for her own
safety or that she suffered any physical injury or illness.
To state a cause of action for intentional infliction of
emotional distress one must establish that: (1) defendant's conduct
was extreme and outrageous; (2) defendant intended that his conduct
inflict severe emotional distress or knew there was a high probability
that his conduct would cause severe emotional distress; and (3)
defendant's conduct in fact caused severe emotional distress. Doe,
161 Ill. 2d at 392, 641 N.E.2d at 506. Count II fails to allege that
defendants intended their conduct to inflict severe emotional distress
or that they knew there was a high probability that it would.
We find that the trial court did not err in dismissing count II
for failure to state a cause of action.
Plaintiff next contends that the trial court erred in dismissing
count III because it stated a valid cause of action for breach of an
implied in fact contract. Specifically, plaintiff contends that
defendants accepted Maness' money and agreed to provide him with their
services and facilities for racing, including two ambulances with
emergency personnel. According to plaintiff, these circumstances gave
rise to an implied in fact contract between defendants and Maness
requiring defendants to provide prompt medical attention to Maness in
the event that he became injured or ill.
Plaintiff's contention flies in the face of the general
principles of contract law. The law is clear that an implied contract
cannot coexist with an express contract on the same subject. Zadrozny
v. City Colleges of Chicago, 220 Ill. App. 3d 290, 581 N.E.2d 44
(1991); Stone v. City of Arcola, 181 Ill. App. 3d 513, 536 N.E.2d 1329
(1989); Gadsby v. Health Insurance Administration Inc., 168 Ill.
App. 3d 460, 522 N.E.2d 865 (1988); Board of Directors of Carriage
Way Property Owners Ass'n v. Western National Bank, 139 Ill. App. 3d
542, 487 N.E.2d 974 (1985); Industrial Lift Truck Service Corp. v.
Mitsubishi International Corp., 104 Ill. App. 3d 357, 432 N.E.2d 999
(1982).
In the case sub judice there are three express contracts in the
form of the releases signed by Maness which expressly relieve
defendants from liability for all negligent and grossly negligent
acts. These express contracts negate the existence of any implied in
fact contract. We reject plaintiff's contention that the alleged
implied in fact contract merely supplements the express written
contracts. Plaintiff's interpretation, that defendants impliedly
agreed to provide Maness with medical care and to be responsible for
the failure to do so, is directly contrary to the express terms of the
written releases, which indicate defendants' intention to be free from
all responsibility for any harm that might come to Maness in
connection with the race. Allowing this cause of action to stand
would enable plaintiff to sue for damages on an implied duty when that
very duty had been expressly waived by Maness. Plaintiff cannot
resort to quasi-contractual theories to shift Maness' contractually
assumed risk of injury or death resulting from defendants' negligence
or gross negligence. Industrial Lift Truck Service Corp. v.
Mitsubishi International Corp., 104 Ill. App. 3d 357, 432 N.E.2d 999
(1982).
Plaintiff makes three arguments as to why defendants should not
be able to rely on the releases signed by Maness. We reject all
three. Plaintiff first argues that defendants cannot avail themselves
of the benefit of the releases because they did not perform their
obligations under the contract. This argument is not supported by the
record. Maness released defendants from all liability for injury or
death resulting from defendants' negligence or otherwise in exchange
for defendants' permission to enter the restricted areas and
participate in the stock car races. Defendants fulfilled their
contractual obligations by allowing Maness to enter the restricted
areas and participate in the July 10, 1993, race and therefore are
entitled to enforce Maness' release.
Plaintiff's second argument is that the foreseeability rule
espoused in Simpson v. Byron Dragway, Inc., 210 Ill. App. 3d 639, 569 N.E.2d 579 (1991), prevents defendants from using the releases as a
defense. We have already rejected this argument above.
Plaintiff's third argument is that the doctrine of equitable
estoppel bars defendants use of the releases. Estoppel must be pled
to be available (Estes Co. of Bettendorf v. Employers Mutual Casualty
Co., 79 Ill. 2d 228, 402 N.E.2d 613 (1980); Meier v. Aetna Life &
Casualty Standard Fire Insurance Co., 149 Ill. App. 3d 932, 500 N.E.2d 1096 (1986); Chicago Budget Rent-A-Car Corp. v. Maj, 5 Ill. App. 3d
265, 282 N.E.2d 155 (1972)) and cannot be raised for the first time an
appeal (People ex rel. Skinner v. Graham, 170 Ill. App. 3d 417, 524 N.E.2d 642 (1988)). Plaintiff did not plead estoppel below. Indeed,
plaintiff relies on several facts that were never pled, such as
"defendants knew that they would not send assistance to decedent
that"; "defendants knew decedent would rely on them to provide
emergency medical assistance in the event of injury or illness"; and
"decedent signed the releases because he believed the defendants would
send emergency medical assistance," to support her claim of equitable
estoppel. A required element of equitable estoppel is that the party
against whom the estoppel is alleged must have had knowledge at the
time the representations were made that the representations were
untrue. Vaughn v. Speaker, 126 Ill. 2d 150, 162, 533 N.E.2d 885, 890
(1988). Yet, there is no allegation in the second amended complaint
that defendants knew that they would not send aid to Maness that
night.
We find that the trial court correctly dismissed count III as the
three express written contracts entered into between Maness and
defendants negate the existence of any implied contract and release
defendants from any liability to plaintiff.
Finally, plaintiff contends that the trial court erred in
dismissing count IV, which pled a cause of action for intentionally
withholding medical assistance. We disagree.
Count IV is little more than a restatement of plaintiff's
previously dismissed negligence count with the addition of the word
"intentionally." The mere addition of the words "intentionally" or
"wilfully and wantonly" to the factual allegations used in plaintiff's
negligence claim is insufficient to support a cause of action for
intentional tort. Harkcom v. East Texas Motor Freight Lines, Inc.,
104 Ill. App. 3d 780, 433 N.E.2d 291 (1982); Holtz v. Amax Zinc Co.,
165 Ill. App. 3d 578, 519 N.E.2d 54 (1988). Conclusory allegations or
mere characterizations of alleged acts as intentional or wilful and
wanton are insufficient. Dowd & Dowd, Ltd. v. Gleason, 284 Ill. App.
3d 915, 672 N.E.2d 854 (1996); Winfrey v. Chicago Park District, 274
Ill. App. 3d 939, 654 N.E.2d 508 (1995).
Furthermore, in order to state a claim for intentional misconduct
the plaintiff must allege that the defendant committed the act with
the intent to cause harm or with "substantial certainty" that harm
would result. Wells v. I F R Engineering Co., 247 Ill. App. 3d 43,
617 N.E.2d 204 (1993). Plaintiff failed to allege either that
defendants intended to harm Maness or that defendants acted with
"substantial certainty" that harm would result. The only intentional
act alleged is the intentional withholding of medical care. It is
simply not enough to allege that defendants intentionally failed to
stop the race and dispatch emergency medical personnel and
intentionally failed to send a tow truck. Wells, 247 Ill. App. 3d at
45-46, 617 N.E.2d at 205. Plaintiff must also allege defendants'
intention to harm Maness. She did not.
The two cases relied on by plaintiff, Siemieniec v. Lutheran
General Hospital, 117 Ill. 2d 230, 512 N.E.2d 691 (1987) and Sutton v.
Overcash, 251 Ill. App. 3d 737, 623 N.E.2d 820 (1993), are inapposite
as they address the proper measure of damages in a tort action, not
the intent element required to state a cause of action for intentional
tort. We find that the trial court did not err in dismissing count IV
for failure to state a cause of action.
Accordingly for the reasons set forth above, the judgment of the
circuit court of Cook County is affirmed.
Affirmed.
CERDA, P.J., and SOUTH, J., concur.
August 27, 1998
No. 1-96-4215
LEANNE MANESS, Indiv. and as ) APPEAL FROM THE
Special Adm'r of the Estate ) CIRCUIT COURT OF
of Edward L. Maness, Deceased, ) COOK COUNTY
)
Plaintiff-Appellant, )
)
v. ) No. 95 L 10687
)
SANTA FE PARK ENTERPRISES, INC., )
d/b/a Santa Fe Speedway, and )
NATIONAL ASSOCIATION FOR
STOCK CAR AUTO RACING, INC., ) HONORABLE
) PADDY H. McNAMARA,
Defendants-Appellees. ) JUDGE PRESIDING.
JUSTICE McNAMARA delivered the opinion of the court:
Plaintiff's decedent, Edward L. Maness (Maness), suffered an
ultimately fatal heart attack while participating in a stock car race
at Santa Fe Speedway (Santa Fe) on July 10, 1993. Plaintiff, Leanne
Maness (plaintiff), filed suit individually and as special
administrator of the estate of her husband, seeking damages as a
result of Edward's death. On October 23, 1996, the trial court
granted the motion of defendants, Santa Fe Enterprises, Inc., d/b/a
Santa Fe Speedway, and National Association for Stock Car Auto Racing,
Inc. (NASCAR) (defendants), to dismiss plaintiff's second amended
complaint with prejudice. Plaintiff appeals that order. We affirm.
The relevant facts are as follows.
On July 10, 1993, Maness participated in an auto race at
defendants' race track. At the time Maness was 51 years old and had
been racing stock cars for many years. During the race Maness
suffered an ultimately fatal heart attack. Maness died on July 11,
1993. Plaintiff was named special administrator of her husband's
estate.
Prior to participating in the July 10, 1993, race, Maness signed
three releases/waivers of liability expressly agreeing to release,
waive, and discharge defendants from all liability for his injury or
death whether caused by the negligence or gross negligence of
defendants or otherwise.
In April 1993, Maness applied for NASCAR membership and a NASCAR
license in order to participate in NASCAR sponsored racing events. In
exchange for becoming a member and receiving a NASCAR license Maness
paid a $65 fee and signed a "Release and Waiver of Liability and
Indemnity Agreement," which provided in pertinent part that Maness:
"1. HEREBY RELEASES, WAIVES, DISCHARGES AND
COVENANTS NOT TO SUE the promoter, participants,
racing association, sanctioning organization or any
subdivision thereof, track operator, track owner, ***
from all liability to the undersigned, his/her personal
representatives, assigns, heirs and next of kin for any
and all loss or damage, and any claim or demands
therefore on account 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(S);
2.HEREBY AGREES TO INDEMNIFY AND SAVE AND HOLD
HARMLESS the 'releasees' and each of them for any loss,
liability, damage, or cost they may incur due to the
presence of the undersigned in or upon the restricted
area or in any way competing, officiating, observing,
or working for, or for any purpose participating in the
EVENT(S) and whether caused by the negligence or gross
negligence of the 'releasees' or otherwise.
3. HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY RISK
OF BODILY INJURY, DEATH OR PROPERTY DAMAGE due to the
negligence or gross negligence of 'releasees' or
otherwise while in or upon the restricted area and/or
while competing, officiating, observing, or working for
or for any purpose participating in the EVENT(S)."
Prior to the July 10, 1993, race, Maness also signed a competitor
permit, which contained a release and waiver of liability agreement
identical to that contained in the NASCAR membership application.
Maness signed this release in consideration for being allowed to
compete in the race.
Moreover, on July 10, 1993, Maness paid a fee and obtained a pit
permit, which allowed him to enter the pit area at the race track and
to compete in the races being held that evening. The pit permit
contained the following release agreement, which Maness signed:
"I hereby release speedway owner, operator, promoter,
sanctioning body and any other person or persons
connected with the racemeet for which this Pit Permit
has been issued from all liability for personal injury
or property damage whether arising from claims of
negligence, gross negligence or any other cause, while
preparing, practicing, qualifying or participating in
or attending said racemeet."
On July 6, 1995 plaintiff, individually and as special
administrator of her husband's estate, filed a two-count complaint
against defendants. Count I, sounding in negligence/wrongful death,
alleged that defendants negligently delayed providing medical
assistance to Maness, causing his heart attack to become
"irreversible" and resulting in his death. Count II was brought by
plaintiff individually and alleged infliction of mental distress. The
trial court granted defendants' motion to dismiss and granted
plaintiff leave to file her first amended complaint.
Plaintiff's first amended complaint set forth expanded versions
of the two counts contained in the original complaint. Count I
sounded in negligence, alleging that Maness was participating in a
race when his car struck the track's outside wall and rolled to a stop
in the track's infield; that Maness gave no hand signal to indicate
that he was not in need of medical aid; that defendants negligently
failed to immediately stop the race and dispatch medical personnel;
that defendants did not dispatch medical personnel until the next race
event was completed; that as a proximate result of this negligence
Maness's heart attack "went unattended for a protracted amount of time
so that it became irreversible"; and that the "danger of not being
promptly sent medical assistance was not foreseeable because Maness
"had a reasonable expectation that he would receive prompt medical
attention." Count II attempted to state a cause of action for
"extreme and outrageous misconduct" alleging:
"19. That the plaintiff, Leanne Maness, was the
wife of Edward L. Maness; she was present in the
grandstands of the defendants' track; she saw that her
husband needed help; she saw no movement in his car;
she saw no signal from him indicating that he was all
right; she saw his pit crew pleading for someone to go
help; she heard others asking officials to send help;
she ran to the starter's gate to go help her husband;
defendants' employees stopped her; defendants'
employees heard her yells, screams and crying; and she
observed the defendants' employees refusing to allow a
registered nurse from going to her husband's
assistance.
20. That the defendants ignored all entreaties
for help, refused to allow others to help and observed
plaintiff's anguish resulting therefrom.
21. That as a direct and proximate result of the
aforesaid extreme and outrageous misconduct of
defendants' agents, servants and employees, the
plaintiff, Leanne Maness, sustained severe and
permanent mental and emotional trauma and shock."
The trial court granted defendants' motion to dismiss the first
amended complaint with prejudice on July 11, 1996. The court found
count I to be barred by the releases signed by Maness, which "were
clearly intended to cover any and all risk of death due to the
negligence or gross negligence of the defendants." Count II was
dismissed for failure to state a cause of action, as Illinois law does
not recognize the tort of "outrageous misconduct" and the facts
alleged were insufficient to state a cause of action for intentional
or negligent infliction of emotional distress. The court granted
plaintiff leave to file her second amended complaint.
On July 31, 1996, plaintiff filed a four-count second amended
complaint. Counts I and II were repled from the first amended
complaint to preserve them for appeal. Count III alleged the breach
of an implied in fact contract between defendants and Maness under
which defendants were required to provide "reasonably prompt emergency
medical personnel to aid plaintiff's decedent in the event that he
became injured or ill." Count IV alleged that defendants
intentionally failed to promptly provide medical assistance to Maness.
Defendants moved to dismiss counts I and II in accord with the court's
July 11, 1996 order; to dismiss count III under section 2-619 of the
Code of Civil Procedure (the Code)(735 ILCS 5/2-619 (West 1996)) as
barred by the releases signed by Maness; and to dismiss count IV under
section 2-615 of the Code (735 ILCS 5/2-615 (West 1996)) on statute of
limitations grounds and for failure to state a cause of action.
On October 23, 1996, the trial court granted defendants' motion
to dismiss plaintiff's second amended complaint with prejudice.
Counts I and II were dismissed for the reasons stated in the court's
July 11, 1996, order. Count III was dismissed based upon the releases
signed by Maness, which the court found to clearly absolve defendants
from liability for negligent and grossly negligent acts. The court
found that no implied contract to provide prompt medical assistance
could coexist with these express waivers of liability. Count IV was
dismissed for failure to state a cause of action. Plaintiff appeals
from this order.
On appeal plaintiff contends that: (1) the trial court erred in
ruling that the releases signed by Maness defeated plaintiff's claim
for defendants' negligent failure to promptly provide medical
assistance; (2) the trial court erred in dismissing count II because
it stated a valid, recognized cause of action for outrageous
misconduct; (3) the trial court erred in dismissing count III because
it stated a valid cause of action for breach of an implied in fact
contract; and (4) the trial court erred in dismissing count IV, which
pled a cause of action for intentionally withholding medical
assistance.
Plaintiff first contends that the trial court erred in ruling
that the releases signed by Maness defeated her claim for defendants'
negligent failure to promptly provide medical assistance to Maness.
Specifically, plaintiff contends that the delay in providing medical
treatment during Maness' heart attack was not the type of risk that
ordinarily accompanies auto racing and therefore was not covered by
the signed releases. We disagree.
In general, exculpatory contracts, such as the releases signed by
Maness, are valid and enforceable in Illinois as long as they are not
violative of public policy and there is not a unique relationship
between the parties such as common carrier/passenger or
employer/employee, which militates against enforcement of the
agreement. Lohman v. Morris, 146 Ill. App. 3d 457, 497 N.E.2d 143
(1986); Harris v. Walker, 119 Ill. 2d 542, 519 N.E.2d 917 (1988). Our
courts have consistently held that exculpatory contracts, such as the
releases signed by Maness, bar negligence claims in the auto racing
context. Schlessman v. Henson, 83 Ill. 2d 82, 413 N.E.2d 1252 (1980);
Koch v. Spalding, 174 Ill. App. 3d 692, 529 N.E.2d 19 (1988); Morrow
v. Auto Championship Racing Ass'n, 8 Ill. App. 3d 682, 291 N.E.2d 30
(1972); Rudolph v. Santa Fe Park Enterprises, Inc., 122 Ill. App. 3d
372, 461 N.E.2d 622 (1984); Lohman, 146 Ill. App. 3d at 461, 497 N.E.2d at 145.
The releases signed by Maness contain broad exculpatory language
that clearly releases defendants from all liability for personal
injury or death resulting from their negligence, including their
alleged delay in providing prompt medical assistance to Maness. The
decision in Schlessman is instructive on this point. Mr. Schlessman
was injured while participating in a stock car race when a portion of
the track collapsed, causing his car to crash. Before participating
in the race, Schlessman signed a broad release releasing defendants
from "all liability" to him "whether caused by the negligence of
Releasees or otherwise" while he was in the restricted area.
Plaintiff argued that the occurrence was not within the terms of the
release. In holding plaintiff's negligence claim against the track
owner barred by the release the court stated:
"The release in question was designed to encompass all
claims against defendant based on its negligence, even
though the precise cause of the accident may have been
extraordinary. The very nature of the parties' activity
requires this result, absent contrary legislation."
(Emphasis added.) Schlessman, 83 Ill. 2d at 86, 413 N.E.2d
at 1254.
Maness signed three similarly broad releases releasing defendants
from "any and all loss or damage, and any claim or demands therefore
on account of the 'releasees' or otherwise" and from "all liability
for personal injury or property damage whether arising from claims of
negligence, gross negligence, or any other cause." Maness expressly
assumed "full responsibility for ANY RISK OF BODILY INJURY, DEATH, or
PROPERTY DAMAGE due to the negligence or gross negligence of
'releasees' or otherwise." As in Schlessman, these releases were
clearly designed to cover all claims against defendants based on their
negligence, including their alleged negligent delay in providing
medical assistance to Maness.
Plaintiff attempts to circumvent the application of these
releases by arguing that the releases do not bar her negligence claim
because the risk faced by Maness (a delay in providing medical
treatment during Maness' heart attack) was not the type of risk that
ordinarily accompanies auto racing and was not foreseeable to Maness.
We reject this argument.
The risk of requiring medical attention during a race is one that
ordinarily accompanies the dangerous sport of auto racing. Plaintiff
admitted as much in her pleadings. Paragraph 21 of count I states:
"Plaintiff's decedent had a reasonable expectation that he would
receive prompt medical attention under the circumstances as
aforesaid." Incidents requiring medical attention are common at
racetracks. Maness, as an experienced racer, expected prompt and
adequate medical care at every race. Likewise, he should have
expected that negligence on the part of defendants regarding the
medical care provided was possible and could result in serious injury
or death to participants in the race.
The fact that Maness could not foresee the exact circumstances
necessitating prompt medical assistance is irrelevant. As our supreme
court noted in Schlessman:
"A myriad of factors, which are either obvious or
unknown, may singly or in combination result in
unexpected and freakish racing accidents. Experienced
race drivers, such as plaintiff, are obviously aware of
such occurrences and the risks attendant to the sport
of auto racing. The parties may not have contemplated
the precise occurrence which resulted in plaintiff's
accident, but this does not render the exculpatory
clause inoperable. In adopting the broad language
employed in the agreement, it seems reasonable to
conclude that the parties contemplated the similarly
broad range of accidents which occur in auto racing."
(Emphasis added.) Schlessman, 83 Ill. 2d at 86, 413 N.E.2d
at 1254.
Defendants' reliance on Simpson v. Byron Dragway, Inc., 210 Ill. App.
3d 639, 569 N.E.2d 579 (1991), is misplaced. The driver in Simpson
was killed when his race car struck a deer that had run onto the
racetrack. The court held that the risk of an animal running onto the
racetrack was not the type of risk that ordinarily accompanied the
sport of auto racing. Therefore the incident was not covered by the
release signed by plaintiff.
The risk of requiring medical attention during a race, unlike the
risk of hitting a stray deer that has wandered onto a racetrack, is
one that ordinarily accompanies auto racing as evidenced by
plaintiff's admission that Maness had a reasonable expectation of
receiving prompt medical attention. Maness accepted this risk and
agreed to exculpate defendants from any alleged negligence in
connection with it when he executed the broad releases expressly
releasing defendants from all liability for personal injury and death
arising from any negligence on their part.
Plaintiff's argument that the releases do not apply because
Maness was no longer participating in the event at the time of
defendants alleged delay in sending medical assistance is untenable.
The release and waiver of liability agreement and the competitor
permit signed by Maness specifically state that defendants are
released from liability for their negligent and grossly negligent acts
"while the undersigned is in or upon the restricted area." The
definition of restricted area expressly includes the infield where
Maness sat in his car during defendants' alleged delay in providing
medical assistance. The releases apply to defendants' conduct and the
trial court did not err in finding count I barred by them.
Plaintiff next contends that the trial court erred in dismissing
count II because it states a valid, recognized cause of action for
outrageous misconduct. We disagree.
Relying on Doe v. Calumet City, 161 Ill. 2d 374, 641 N.E.2d 498
(1994), plaintiff contends that Illinois courts recognize a tort for
outrageous misconduct. However, the opinion in Doe makes it clear
that outrageous misconduct is one element of the tort of intentional
infliction of emotional distress, not a separate and distinct tort.
Doe, 161 Ill. 2d at 392, 641 N.E.2d at 506. Count II does not state a
cause of action as Illinois courts do not recognize a cause of action
for outrageous misconduct. Nor does plaintiff state a cause of action
for intentional or negligent infliction of emotional distress.
A bystander, such as plaintiff, cannot recover for negligent
infliction of emotional distress unless she establishes that: (1) she
was in the "zone of danger"; (2) she had a reasonable fear for her own
safety; and (3) she suffered physical injury or illness resulting from
the alleged emotional distress. Rickey v. Chicago Transit Authority,
98 Ill. 2d 546, 457 N.E.2d 1 (1983). Count II fails to allege any of
these requisite elements. In order to be in the "zone of danger" a
bystander "must have been in such proximity to the accident in which
the direct victim was physically injured that there was a high risk to
[her] of physical impact." Rickey, 98 Ill. 2d at 555, 457 N.E.2d at
5. Here plaintiff alleges that she was in the grandstands when she
witnessed defendants' negligent failure to provide prompt medical
assistance to her husband, who was in the infield of the track. There
was certainly no risk of physical impact to her. Moreover, count II
fails to allege that plaintiff had a reasonable fear for her own
safety or that she suffered any physical injury or illness.
To state a cause of action for intentional infliction of
emotional distress one must establish that: (1) defendant's conduct
was extreme and outrageous; (2) defendant intended that his conduct
inflict severe emotional distress or knew there was a high probability
that his conduct would cause severe emotional distress; and (3)
defendant's conduct in fact caused severe emotional distress. Doe,
161 Ill. 2d at 392, 641 N.E.2d at 506. Count II fails to allege that
defendants intended their conduct to inflict severe emotional distress
or that they knew there was a high probability that it would.
We find that the trial court did not err in dismissing count II
for failure to state a cause of action.
Plaintiff next contends that the trial court erred in dismissing
count III because it stated a valid cause of action for breach of an
implied in fact contract. Specifically, plaintiff contends that
defendants accepted Maness' money and agreed to provide him with their
services and facilities for racing, including two ambulances with
emergency personnel. According to plaintiff, these circumstances gave
rise to an implied in fact contract between defendants and Maness
requiring defendants to provide prompt medical attention to Maness in
the event that he became injured or ill.
Plaintiff's contention flies in the face of the general
principles of contract law. The law is clear that an implied contract
cannot coexist with an express contract on the same subject. Zadrozny
v. City Colleges of Chicago, 220 Ill. App. 3d 290, 581 N.E.2d 44
(1991); Stone v. City of Arcola, 181 Ill. App. 3d 513, 536 N.E.2d 1329
(1989); Gadsby v. Health Insurance Administration Inc., 168 Ill.
App. 3d 460, 522 N.E.2d 865 (1988); Board of Directors of Carriage
Way Property Owners Ass'n v. Western National Bank, 139 Ill. App. 3d
542, 487 N.E.2d 974 (1985); Industrial Lift Truck Service Corp. v.
Mitsubishi International Corp., 104 Ill. App. 3d 357, 432 N.E.2d 999
(1982).
In the case sub judice there are three express contracts in the
form of the releases signed by Maness which expressly relieve
defendants from liability for all negligent and grossly negligent
acts. These express contracts negate the existence of any implied in
fact contract. We reject plaintiff's contention that the alleged
implied in fact contract merely supplements the express written
contracts. Plaintiff's interpretation, that defendants impliedly
agreed to provide Maness with medical care and to be responsible for
the failure to do so, is directly contrary to the express terms of the
written releases, which indicate defendants' intention to be free from
all responsibility for any harm that might come to Maness in
connection with the race. Allowing this cause of action to stand
would enable plaintiff to sue for damages on an implied duty when that
very duty had been expressly waived by Maness. Plaintiff cannot
resort to quasi-contractual theories to shift Maness' contractually
assumed risk of injury or death resulting from defendants' negligence
or gross negligence. Industrial Lift Truck Service Corp. v.
Mitsubishi International Corp., 104 Ill. App. 3d 357, 432 N.E.2d 999
(1982).
Plaintiff makes three arguments as to why defendants should not
be able to rely on the releases signed by Maness. We reject all
three. Plaintiff first argues that defendants cannot avail themselves
of the benefit of the releases because they did not perform their
obligations under the contract. This argument is not supported by the
record. Maness released defendants from all liability for injury or
death resulting from defendants' negligence or otherwise in exchange
for defendants' permission to enter the restricted areas and
participate in the stock car races. Defendants fulfilled their
contractual obligations by allowing Maness to enter the restricted
areas and participate in the July 10, 1993, race and therefore are
entitled to enforce Maness' release.
Plaintiff's second argument is that the foreseeability rule
espoused in Simpson v. Byron Dragway, Inc., 210 Ill. App. 3d 639, 569 N.E.2d 579 (1991), prevents defendants from using the releases as a
defense. We have already rejected this argument above.
Plaintiff's third argument is that the doctrine of equitable
estoppel bars defendants use of the releases. Estoppel must be pled
to be available (Estes Co. of Bettendorf v. Employers Mutual Casualty
Co., 79 Ill. 2d 228, 402 N.E.2d 613 (1980); Meier v. Aetna Life &
Casualty Standard Fire Insurance Co., 149 Ill. App. 3d 932, 500 N.E.2d 1096 (1986); Chicago Budget Rent-A-Car Corp. v. Maj, 5 Ill. App. 3d
265, 282 N.E.2d 155 (1972)) and cannot be raised for the first time an
appeal (People ex rel. Skinner v. Graham, 170 Ill. App. 3d 417, 524 N.E.2d 642 (1988)). Plaintiff did not plead estoppel below. Indeed,
plaintiff relies on several facts that were never pled, such as
"defendants knew that they would not send assistance to decedent
that"; "defendants knew decedent would rely on them to provide
emergency medical assistance in the event of injury or illness"; and
"decedent signed the releases because he believed the defendants would
send emergency medical assistance," to support her claim of equitable
estoppel. A required element of equitable estoppel is that the party
against whom the estoppel is alleged must have had knowledge at the
time the representations were made that the representations were
untrue. Vaughn v. Speaker, 126 Ill. 2d 150, 162, 533 N.E.2d 885, 890
(1988). Yet, there is no allegation in the second amended complaint
that defendants knew that they would not send aid to Maness that
night.
We find that the trial court correctly dismissed count III as the
three express written contracts entered into between Maness and
defendants negate the existence of any implied contract and release
defendants from any liability to plaintiff.
Finally, plaintiff contends that the trial court erred in
dismissing count IV, which pled a cause of action for intentionally
withholding medical assistance. We disagree.
Count IV is little more than a restatement of plaintiff's
previously dismissed negligence count with the addition of the word
"intentionally." The mere addition of the words "intentionally" or
"wilfully and wantonly" to the factual allegations used in plaintiff's
negligence claim is insufficient to support a cause of action for
intentional tort. Harkcom v. East Texas Motor Freight Lines, Inc.,
104 Ill. App. 3d 780, 433 N.E.2d 291 (1982); Holtz v. Amax Zinc Co.,
165 Ill. App. 3d 578, 519 N.E.2d 54 (1988). Conclusory allegations or
mere characterizations of alleged acts as intentional or wilful and
wanton are insufficient. Dowd & Dowd, Ltd. v. Gleason, 284 Ill. App.
3d 915, 672 N.E.2d 854 (1996); Winfrey v. Chicago Park District, 274
Ill. App. 3d 939, 654 N.E.2d 508 (1995).
Furthermore, in order to state a claim for intentional misconduct
the plaintiff must allege that the defendant committed the act with
the intent to cause harm or with "substantial certainty" that harm
would result. Wells v. I F R Engineering Co., 247 Ill. App. 3d 43,
617 N.E.2d 204 (1993). Plaintiff failed to allege either that
defendants intended to harm Maness or that defendants acted with
"substantial certainty" that harm would result. The only intentional
act alleged is the intentional withholding of medical care. It is
simply not enough to allege that defendants intentionally failed to
stop the race and dispatch emergency medical personnel and
intentionally failed to send a tow truck. Wells, 247 Ill. App. 3d at
45-46, 617 N.E.2d at 205. Plaintiff must also allege defendants'
intention to harm Maness. She did not.
The two cases relied on by plaintiff, Siemieniec v. Lutheran
General Hospital, 117 Ill. 2d 230, 512 N.E.2d 691 (1987) and Sutton v.
Overcash, 251 Ill. App. 3d 737, 623 N.E.2d 820 (1993), are inapposite
as they address the proper measure of damages in a tort action, not
the intent element required to state a cause of action for intentional
tort. We find that the trial court did not err in dismissing count IV
for failure to state a cause of action.
Accordingly for the reasons set forth above, the judgment of the
circuit court of Cook County is affirmed.
Affirmed.
CERDA, P.J., and SOUTH, J., concur.
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