dissenting. In reaching its decision, the majority opinion relies on the Eighth Circuit Court of Appeals case, Haines v. St. Charles Speedway, Inc., 874 F.2d 572 (8th Cir. 1989). The Haineses brought action against the promoter of an automobile race and a racetrack owner to recover damages for injuries sustained when Mr. Haines, the race car owner, was struck by his own car while attempting to have it started. The Haineses sought to defeat a summary judgment order primarily by arguing that, under controlling Missouri law, the release and waiver constituted a contract of adhesion.1 The federal court agreed that the release was a contract of adhesion, but determined the release was unambiguous, not overbroad, and the facts surrounding the case were essentially undisputed. In so finding, the Haines court held it must apply a “total transaction” analysis in determining the intent of the parties to an exculpatory agreement.
The Haines case is far different from the one now before our court. First, as expressed in Haines, the federal court looked to Missouri law to decide that case, and in doing so, pointed out that, under Missouri law, an agreement to exempt one from the consequence of negligence is not against public policy. To the contrary, our court has very clearly decided that agreements exculpating parties from liability for their own negligence is against Arkansas’s strong public policy. Farmers Bank v. Perry, 301 Ark. 547, 787 S.W.2d 645 (1990). Rather than adopting another state’s law on adhesion contracts in reviewing this case, our court would be better served by adhering to its own well-settled law on the review of orders granting summary judgment, and the analysis of exculpatory agreements set out in Perry.
Second, I would further add that, unlike in Haines, the instant case involves disputed material facts that need to be tried. In Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d 712 (1998), this court held that “we only approve the granting of the [summary judgment] motion when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admission on file is such that the nonmoving party is not entitled to a day in court, i.e., when there is not any genuine remaining issue of fact and the moving party is entitled to judgment as a matter of law.” Unlike the federal courts’ interpretation of Fed. R. Civ. P. 56, under our rule the court will not engage in a “sufficiency of the evidence” determination. Id. The object of summary-judgment proceedings is not to try the issues, but to determine if there are any issues to be tried, and if there is any doubt whatsoever, the motion should be denied. Id. (quoting Thomas v. Sessions, 307 Ark. 203, 818 S.W.2d 940 (1991)). Viewing the evidence here in a light most favorable to Mr. Plant, the party against whom the motion was filed, and resolving all doubts and inferences against the Wilburs, the evidentiary items presented by the Wilburs in support of their motion leave questions of material fact unanswered.
Here, factual disputes remain concerning several material issues: (1) whether the disclosure of the types of negligence addressed in the waiver and release form were clear and specific enough to render a valid exculpatory agreement; (2) whether Mr. Plant was a spectator or a participant in the race at the time of his injury and how that might affect the exculpatory agreement; (3) whether Plant was injured while he was in a “restricted area,” covered by the terms of the agreement; and (4) whether Plant knowingly waived all right to hold the Wilburs liable for the specific negligent acts that he alleged in his complaint.
As the majority notes, this court has stated that it is not impossible to avoid liability for negligence through contract if the exculpatory agreement clearly and specifically sets out exactly what negligent acts-are covered. Perry, 301 Ark. at 550-51, 787 S.W.2d at 646-47 (citing Middleton & Sons v. Frozen Food Lockers, 251 Ark. 745, 474 S.W.2d 895 (1972)). Such contracts are strictly construed against the party relying on them. Id.
First, I note here that the generic waiver and release form signed by Plant does not specify the types of negligence that it covers. Plant alleged that the Wilburs failed to provide and maintain adequate safety barriers, and failed to warn of the dangers of flying debris. Plant’s expert testified that the safety barriers between the track and the pit area, specifically the “wheel fence,” had been improperly constructed and that the Wilburs had failed to construct any barrier to keep the spectators away from the wheel fence. The case should be remanded so that a fact-finder may determine whether the agreement clearly set out what negligent liability was to be avoided. See Middleton & Sons v. Frozen Food Lockers, 251 Ark. 745, 474 S.W.2d 895 (1972) (citing Arkansas Power & Light Co. v. Kerr, 204 Ark. 238, 161 S.W.2d 403 (1942)).
Secondly, I point out that a fact question exists as to whether Mr. Plant was a spectator or a participant member of the race crew at the time he was injured. As the majority notes, Sheldon England, the insurance broker, testified that the release applied to “participant legal coverage.” Plant testified that he was admitted as a member of the race crew; however, he was admitted by paying the same entry fee and signing the same release form as an ordinary spectator. Plant’s testimony reflected that at the time he was injured he was not working as a crew member, but instead was watching the race with other spectators in an area away from the pit area where his race crew was located. In sum, a genuine issue remains as to whether Plant was a spectator or a participant, and whether the exculpatory agreement applied the same, to spectators as it did to participants, or not at all. See, e.g., Eder v. Lake Geneva Raceway, 523 N.W.2d 429 (Wis. Ct. App. 1994).
Thirdly, I submit that it is equally unclear whether the area in which Plant was located, when injured, qualified as a “restricted area” under the terms of the exculpatory agreement. See, e.g, Arnold v. Shawano County, 317 N.W.2d 161 (Wis. Ct. App. 1982) overruled on other grounds by Green Spring Farms v. Kersten, 401 N.W.2d 816 (Wis. 1987); Eder v. Lake Geneva Raceway, 523 N.W.2d 429 (Wis. Ct. App. 1994). Although the Wilburs and the trial court presumed that Plant was observing the race from the pit area because that is where he had entered the race track, Plant’s deposition reflects, and the Wilburs fail to dispute, that Plant was injured behind a fence near the race course, where he stood with other spectators.
Finally, the record reflects that the broad terms of the exculpatory agreement fail to give a reasonable person signing the release notice that he or she is waiving any right to hold the Wilburs accountable for premises liability. See, e.g., Yauger v. Skiing Enters., Inc., 557 N.W.2d 60 (Wis. Ct. App. 1996) (court must examine whether “overbroad, general terms of exculpatory agreement create ambiguity and uncertainty as to what the signer was releasing”); see also AMI Civ. 4th 3012 (Supp. 2000-2001). Here, a disputed factual issue exists as to whether Plant knew or should have known, even upon the inspection required by the release and waiver agreement, that the safety barriers constructed to protect restricted areas were inadequate to prevent the type of injury that he incurred. Similarly, there is a factual issue as to whether Plant was given a reasonable opportunity to read and comprehend that he was signing a complete waiver of liability, especially in light of Plant’s undisputed allegations about his signing of the agreement through a truck window while waiting in line for entrance. See, e.g., Eder v. Lake Geneva Raceway, 523 N.W.2d 429 (Wis. Ct. App. 1994); Sexton v. Southwestern Auto Racing Assoc., 394 N.E.2d 49 (Ill. App. Ct. 1979).
As noted, this court has never upheld an agreement purporting to release a party from liability for his own negligence before it occurred. Perry, 301 Ark. at 550, 787 S.W.2d at 646 (citing Williams v. U.S., 660n F. Supp. 699 (E.D. Ark. 1987)). The rationale behind the numerous decisions invalidating so-called releases given before liability arises is based upon the strong public policy of encouraging the exercising of care. Id. Why should we carve out an exception to our rule and public policy disfavoring exculpatory contracts merely because the contractual release covers a dangerous recreational activity? Surely the person charging an admission price to view a car race (or hockey game or wrestling match for that matter) should be held to some duty to use ordinary care for the spectators’ safety. We should not, in my opinion, allow parties who promote dangerous sports activities to be effectively immunized from liability when a spectator is injured by a flying wheel (or puck, or folding chair) because the party promoting the dangerous sport failed to afford the spectator, as an invitee, a reasonably safe environment. Although there may be some exception made to allow racing facility proprietors like the Wilburs to place reasonable conditions on the terms of admission, the owners of such facilities should also be charged with taking reasonable steps to insure the safety of the public at such events.
In my view, Mr. Plant is entitled to have a fact-finder resolve the foregoing disputed material issues, and, therefore, I dissent.
Imber, J., joins this dissent.Missouri law defined a contract of adhesion as a form of contract submitted by one party and accepted by the other on the basis of this or nothing. Id.