Appeal by plaintiffs from an order entered 24 October 2006 by
Judge Anderson Cromer in Surry County Superior Court. Heard in the
Court of Appeals 20 September 2007.
Poyner and Spruill, LLP, by J. Nicholas Ellis, for plaintiff-
Carruthers & Bailey, P.A., by Joseph T. Carruthers, for
Miles E. Brown, Jr. and his wife, Michele Brown (plaintiffs)
appeal from an order entered 24 October 2006 granting summary
judgment in favor of Brad Robbins and his wife, Tonya Robbins
(defendants). For the reasons stated herein, we affirm the order
of the trial court.
Miles Brown worked as a NASCAR official at Bowman Gray Stadium
for about thirteen years prior to 2005. On 2 April 2005, Miles
Brown signed a 2005 NASCAR Membership and License Application
(See footnote 1)
Official and was granted a 2005 Official's license based on his
completed application. His license entitled him to work as an
official at Bowman Gray Stadium and to receive $50.00 in
compensation each night he officiated a race.
On 30 April 2005, Miles Brown went to Bowman Gray Stadium to
work as an official. In order to gain admittance to the pit area
(and as was customary), he executed two documents. The race night
release which contained a RELEASE AND WAIVER OF LIABILITY AND
INDEMNITY AGREEMENT. The key provisions of the race night release
THIS SECTION MUST BE CAREFULLY READ AND SIGNED
BY THE APPLICANT IN CONSIDERATION OF BEING
PERMITTED TO ENTER FOR ANY PURPOSE ANY
RESTRICTED AREA (herein defined as including
but not limited to the racing surface, pit
areas, . . . .)
[Undersigned] HEREBY RELEASES, WAIVES,
DISCHARGES AND COVENANTS NOT TO SUE . . .
PARTICIPANTS, . . . VEHICLE OWNERS, DRIVERS .
. . FROM ALL LIABILITY to the undersigned . .
. on account of injury to the person . . .
whether caused by the negligence or gross
negligence of the 'releasees', or otherwise
while the undersigned is in or upon the
restricted area, and/or officiating in,
observing, working for or for any purposes
participating in the event(s).
[Undersigned] HEREBY AGREES TO INDEMNIFY AND
SAVE AND HOLD HARMLESS THE 'RELEASEES' . . . .
[Undersigned] HEREBY ASSUMES FULL
RESPONSIBILITY FOR AND RISK OF BODILY INJURY
DUE TO THE NEGLIGENCE OR GROSS NEGLIGENCE OF
'RELEASEES' OR OTHERWISE while in or upon the
restricted area and/or while . . .
officiating, observing, or working for or for
any purpose participating in the event(s). THEUNDERSIGNED expressly acknowledges and agrees
that the activities of the EVENT(S) are very
dangerous and involve the risk of serious
injury . . . .
 THE UNDERSIGNED further expressly agrees
that the foregoing release, waiver, and
indemnity agreement is intended to be as broad
and inclusive as is permitted by law of the .
. . State in which the EVENT(S) is conducted
and that if any portion thereof is held
invalid, it is agreed that the balance shall,
notwithstanding, continue in full legal force
and effect. All rights and obligations of this
license, if granted, are specific to the
individual applicant executing this membership
and license application.
THE UNDERSIGNED HAS READ AND VOLUNTARILY SIGNS
THE RELEASE AND WAIVER OF LIABILITY AND
INDEMNITY AGREEMENT and further agrees that no
oral representations, statements or
inducements apart from the foregoing written
agreement have been made.
The second document plaintiff signed on 30 April 2005 was a pit
pass titled RELEASE OF LIABILITY and included:
I, the undersigned, hereby release . . .
participant(s) . . . and any others connected
with the race event for which the Pit Permit
has been issued from liability for any and all
losses, claims or demands resulting from . . .
injury to person . . . arising from the
negligence, gross negligence or from any other
cause(s) connected with the race event . . . .
The undersigned is subject to the terms and
conditions of this Release of Liability. . . .
THE UNDERSIGNED HAS CAREFULLY READ AND
UNDERSTANDS THIS RELEASE OF LIABILITY AND
AGREES TO ITS TERMS AND CONDITIONS.
(Emphasis added). On 30 April 2005, plaintiff sustained a broken
leg and other injuries when he walked across the pit road and was
hit by defendants' race car, which was exiting the track onto the
pit road to avoid a massive crash in the turn. On 13 April 2006,
plaintiffs initiated this lawsuit by filing a complaint againstdefendants. The complaint alleged defendants were negligent and
jointly and severally liable to plaintiffs for injuries sustained
by Miles Brown in the 30 April 2005 accident at Bowman Gray
Stadium. On 26 June 2006, in response to plaintiffs' complaint,
defendants filed an answer, counterclaim and a motion for summary
judgment. On 24 July 2006, the trial court considered defendants'
motion for summary judgment. On 24 October 2006, an order was
entered granting defendants' motion for summary judgment which
dismissed with prejudice plaintiffs' civil action. Plaintiffs
On appeal plaintiffs argue the trial court erred in granting
defendants' motion for summary judgment. Specifically, plaintiffs
argue: (I) defendants were not parties to the releases, nor
direct, nor intended third-party beneficiaries; (II) releases are
against public policy; (III) the releases were obtained by unequal
bargaining power; (IV) defendants waived any rights under the
releases by purchasing liability insurance; (V) the releases are
unenforceable as there was no consideration tendered; and (VI)
issues of material fact concerning the enforceability of the
Summary judgment is appropriate only when the materials before
the court reveal that there is no genuine controversy concerning
any factual issue material to the outcome of the action so that
resolution of the action involves only questions of law. Kessing
v. National Mortg. Corp.
, 278 N.C. 523, 180 S.E.2d 823 (1971). Themoving party has the burden of showing that there is no genuine
issue as to any material fact. Holley v. Burroughs Wellcome Co.
318 N.C. 352, 355, 348 S.E.2d 772, 774 (1986) (citation omitted).
When considering summary judgment motions, the record must be
viewed in a light most favorable to the non-movant. Caldwell v.
, 288 N.C. 375, 218 S.E.2d 379 (1975).
I & II
Plaintiffs argue the releases signed by Miles Brown did not
relieve defendants from liability where defendants were neither a
direct nor intended third-party beneficiary. Further, plaintiffs
argue such a release is void as a matter of public policy.
A release providing that plaintiff released all other
persons, firms, corporations, associations or partnerships of and
from any and all claims, actions, etc. is a valid general release
which by its terms unambiguously releases defendant from the
liability charged in plaintiff's complaint, constituting a bar to
plaintiff's claim against defendant[.] Sykes v. Keiltex Indus.
123 N.C. App. 482, 485, 473 S.E.2d 341, 344 (1996). [A]
comprehensively phrased 'general release', in the absence of proof
of contrary intent, is usually held to discharge all
claims . . .
between the parties. See Id.
at 487, 473 S.E.2d at 344 (rejecting
plaintiff's argument that defendants were not third-party
In this case, the NASCAR Membership and License Application,
the race night release, and the pit pass, each signed by Miles
Brown, released vehicle owners, drivers and others connected withthe race from claims of negligence by plaintiff. We hold these
unambiguous general releases are a bar to plaintiffs' recovery.
See Battle v. Clanton
, 27 N.C. App. 616, 618, 220 S.E.2d 97, 99
(1975) (affirming summary judgment in favor of second driver after
the plaintiff executed a settlement agreement with the first driver
and later attempted to sue the second driver who had given no
consideration for, and who was not specifically named in, the
release which stated all other persons, firms, or corporations who
are or might be liable from all claims of any kind). In the
instant case, it is clear defendants were direct intended third-
party beneficiaries of the releases.
As for plaintiffs' public policy argument, we note that the
case of Bertotti v. Charlotte Motor Speedway
, 893 F. Supp. 565
(W.D.N.C. 1995) stands for the proposition that exculpatory
contracts entered in connection with motor sports events do not
violate public policy because such contracts do not involve public
at 566. The public interest exception to the
enforceability of exculpatory contracts is applicable only to
heavily regulated activities. See Tatham v. Hoke
, 469 F. Supp.
914, 918 (W.D.N.C. 1979), aff'd
, 622 F.2d 587 (4th
(holding that exculpatory contracts between physician and patient
are unenforceable because medicine is heavily regulated by state
authorities who have demonstrated the public interest in the
activity); Alston v. Monk
, 92 N.C. App. 59, 64, 373 S.E.2d 463,
466-67 (1988) (holding exculpatory agreement with a cosmetology
school unenforceable because cosmetology is a licensed activityextensively regulated by the State), review denied
, 324 N.C. 246,
378 S.E.2d 420 (1989) . Therefore, where as here we have pre-race
releases applicable to activities that are not heavily regulated
and therefore do not involve a public interest, such releases are
enforceable. See Fortson v. McClellan
, 131 N.C. App. 635, 637, 508
S.E.2d 549, 551 (1998) (An activity falls within the public policy
exception when the activity is extensively regulated to protect the
public from danger[.])
. Moreover, federal caselaw strongly
implies that when a party has the opportunity to see and read a
pre-race exculpatory contract, the agreement is enforceable in
North Carolina. Bertotti
, 893 F. Supp. at 567
Court's holding in Johnson v. Dunlap
, 53 N.C. App. 312, 317, 280
S.E.2d 759, 763 (1981), cert. denied
, 305 N.C. 153, 289 S.E.2d 380
(1982)). These assignments of error are overruled.
As to plaintiffs' contention that plaintiff and the Winston-
Salem Speedway had unequal bargaining power when plaintiff signed
the release, the record shows: Miles Brown intended to work as a
racetrack official, he desired to be close to races and wanted to
earn fifty dollars. In turn, Winston-Salem Speedway needed a track
official to perform the races. We recognize the principle of
freedom to contract arises out of 'the broad policy of the law
which accords to contracting parties freedom to bind themselves as
they see fit . . . .' Sylva Shops, Ltd. P'ship v. Hibbard
N.C. App. 423, 428, 623 S.E.2d 785, 789 (2006) (quoting Hall v.
Sinclair Refining Co.
, 242 N.C. 707, 710, 89 S.E.2d 396, 397-98(1955)
). In this case, both parties mutually accepted what the
other was offering. See Hall
, 242 N.C. at 710, 89 S.E.2d at 398
(dismissing plaintiff's allegations of unequal bargaining power,
even though plaintiff clearly had to sign the documents to obtain
something of importance to him which for all practical purposes is
not obtainable elsewhere). This assignment of error is overruled.
Plaintiffs' assumption of risk also bars their negligence
claim and supports summary judgment in favor of defendants. The
NASCAR form and the race night document specifically provide that
Miles Brown assumed the risk of injury. Assumption of risk is
based on contract. McWilliams v. Parham
, 269 N.C. 162, 166, 152
S.E.2d 117, 120 (1967). Miles Brown executed two legal contracts
in which he assumed the risk of injury which extends to those
risks which are normally incident to the occupation in which the
plaintiff engages. Id.
Based on his deposition testimony, Miles
Brown was fully aware that racing was a dangerous sport, that the
pit area was dangerous, that cars could be moving at any time, and
that people in the pit area had to look out for themselves. The
terms of the release clearly indicated plaintiff assumed the risk
of injury. This assignment of error is overruled.
Plaintiffs contend the releases are not enforceable because
defendants purchased liability insurance. Plaintiffs base their
contention on the fact that Miles Brown executed a release with
Winston-Salem Speedway and argue that because Speedway leased theuse of Bowman Gray Stadium from the City of Winston-Salem (a
governmental entity), the release is waived to the extent of the
insurance coverage. However, the Johnson
case (the only case cited
in support of plaintiffs' argument) does not support plaintiffs'
argument of sovereign immunity. Johnson v. Dunlap
, 53 N.C. App.
312, 280 S.E.2d 759 (1981), cert. denied
, 305 N.C. 153, 289 S.E.2d
The lease agreement between the Speedway and the City
of Winston-Salem does not give defendants the right to assert
sovereign immunity as a waiver to contractual obligations unless
specifically provided for in the contract. Defendants are private
individuals and are not entitled to invoke the defense of sovereign
immunity. See Knighten v. Barnhill Contr. Co.
, 122 N.C. App. 109,
112, 468 S.E.2d 564, 566 (1996) (dismissing the appeal on the
grounds that there is no authority in this State which recognizes
a contractor's right to assert governmental immunity in a
negligence claim which arises out of the performance of a contract
with the State). This assignment of error is overruled.
Lastly, plaintiffs contend there was a genuine issue of
material fact as to the enforceability of the release. We
disagree. The record shows plaintiff signed two releases the
night he was injured. Plaintiff testified he was agreeing to the
terms and conditions of each when he signed them. Those two
documents release defendants from liability resulting from car
racing the night plaintiff was injured. In exchange for signing
the releases, plaintiff was allowed to officiate in the pit area. The releases are valid, enforceable and are not against public
policy. The releases are a bar to plaintiffs' claim of negligence.
The trial court properly granted summary judgment.
Judges STEELMAN and GEER concur.
Report per Rule 30(e).