Winterstein v.Wilcom
Court of Special Appeals of Maryland,1972
16 Md.App.130,293 A.2d 821
[Plaintiff Roland Winterstein was seriously injured when his vehicle hit a 36”long,hundred-pound cylinder head that was lying on a drag racetrack owned by defendant.At the time plaintiff was participating in a speed contest.For this opportunity he paid defendant an entry fee.
Defendant’s employees were stationed in a tower to watch “for any hazards on the track,” but negligently failed to do so.Plaintiff Roland Winterstein brought a claim for his personal injuries and his wife,Barbara,brought a claim for loss of consortium.Prior to participating in the race,both plaintiffs signed releases drafted by defendant that stated in part:
“Request and Release.I,the undersigned,hereby request permission to enter the premises… and participate in auto timing and acceleration runs,tests,contests and exhibitions to be held this day.I have inspected the premises and I know the risks and dangers involved in the said activities,and that unanticipated and unexpected dangers may arise during such activities and I assume all risks of injury to my person and property that may be sustained in connection with the stated and associated activities,in and about the premises.In consideration of the permission granted to me to enter the premises and participate in the stated activities,and in further consideration of the provisions of an insurance medical plan,I do hereby,for myself,my heirs,administrators and assigns,release,remise and discharge the owners,operators,and sponsors of the said premises,of the activities,of the vehicles,and of the equipment therein,and their respective servants,agents,officers,and officials,and all other participants in the stated activities of and from all claims,demands,actions,and causes of action of any sort,for injuries sustained by my person and/or property during my presence in said premises and participation in the stated activities due to negligence or any other fault.”
Plaintiffs conceded that the risk that injured Roland fell within the terms of the release,but they contended that the release should be invalidated as a matter of “public policy.” The trial court did not accept this argument and dismissed both claims.Plaintiffs appealed.]
ORTH,J.… In the absence of legislation to the contrary,the law,by the great weight of authority,is that there is ordinarily no public policy which prevents the parties from contracting as they see fit,as to whether the plaintiff will undertake the responsibility of looking out for himself.“It is quite possible for the parties expressly to agree in advance that the defendant is under no obligation of care for the benefit of the plaintiff,and shall not be liable for the consequences of conduct which would otherwise be negligent.” Prosser,LAW OF TORTS,3rd Ed.(1964) § 67,p.456.In other words,the parties may agree that there shall be no obligation to take precautions and hence no liability for negligence….
There is a proviso to the general rule.The relationship of the parties must be such that their bargaining be free and open.When one party is at such an obvious disadvantage in bargaining power that the effect of the contract is to put him at the mercy of the other’s negligence,the agreement is void as against public policy.The proviso is applicable on this basis between employer and employee.
It is also against public policy to permit exculpatory agreements as to transactions involving the public interest,as for example with regard to public utilities,common carriers,innkeepers and public warehousemen.Prosser feels that there has been a definite tendency to expand the exception raised by the proviso to other professional bailees who are under no public duty but deal with the public,such as garagemen,owners of parking lots,and parcel checkrooms,because the indispensable need for their services deprives the customer of all real equal bargaining power.He finds decisions divided as to other private bailees for hire,the decision likely to turn upon the extent to which it is considered that the public interest is involved.
Generally,exculpatory agreements otherwise valid are not construed to cover the more extreme forms of negligence – willful,wanton,reckless or gross.Nor do they encompass any conduct which constitutes an intentional tort.And,of course,it is fundamental that if an agreement exempting a defendant from liability for his negligence is to be sustained,it must appear that its terms were known to the plaintiff,and “if he did not know of the provision in his contract and a reasonable person in his position would not have known of it,it is not binding upon him,and the agreement fails for want of mutual consent.”(https://www.daowen.com)
Because an exculpatory provision may not stand if it involves the public interest,see 175 A.L.R.8 (1948),our inquiry turns to what transactions are affected with a public interest.In Tunkl v.Regents of the University of California,60 Cal.2d 29 383 P.2d 441 (1963) the Supreme Court of California,in bank,found that in placing particular contracts within or without the category of those affected with a public interest,the courts have revealed a rough outline of that type of transaction in which exculpatory provisions will be held invalid.“Thus the attempted but invalid exemption involves a transaction which exhibits some or all of the following characteristics.It concerns a business of a type generally thought suitable for public regulation.The party seeking exculpation is engaged in performing a service of great importance to the public,which is often a matter of practical necessity for some members of the public.The party holds himself out as willing to perform this service for any member of the public who seeks it,or at least for any member coming within certain established standards.As a result of the essential nature of the service,in the economic setting of the transaction,the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation,and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.Finally,as a result of the transaction,the person or property of the purchaser is placed under the control of the seller,subject to the risk of carelessness by the seller or his agents.”
We note a further refinement.Although the traditional view has been that where the defendant’s negligence consists of the violation of a statute,the plaintiff may still assume the risk,there is a growing tendency to the contrary where a safety statute enacted for the protection of the public is violated.The rationale is that the obligation and the right so created are public ones which it is not within the power of any private individual to waive.
It is clear that the exculpatory provisions involved in the case before us whereby Winterstein expressly agreed in advance that Wilcom would not be liable for the consequences of conduct which would otherwise be negligent were under the general rule recognizing the validity of such provisions.There was not the slightest disadvantage in bargaining power between the parties.Winterstein was under no compulsion,economic or otherwise,to race his car.He obviously participated in the speed runs simply because he wanted to do so,perhaps to demonstrate the superiority of his car and probably with the hope of winning a prize.This put him in no bargaining disadvantage.
The business operated by Wilcom had none of the characteristics of one affected with the public interest.The legislature has not thought it suitable for public regulation for it has not sought to regulate it.Wilcom is not engaged in performing a service of great importance to the public which is a matter of practical necessity for any member of the public.Wilcom does not hold himself out as willing to perform the service for any member of the public coming within certain established standards;we see nothing to indicate that he may not arbitrarily refuse to permit any person to participate in the speed runs.Since the service is not of an essen-tial nature Wilcom had no decisive advantage of bargaining strength against any member of the public seeking to participate.Nor was Winterstein so placed under the control of Wilcom that he was subject to the risk of carelessness by Wilcom or his agents;Winterstein was under no obligation whatsoever to race his car.
We do not believe that any safety statute of this State,enacted for the protection of the public,was involved.Our attention has not been called to,nor are we aware of,such a statute dealing with activities of the nature conducted by Wilcom.
We observe that Winterstein did not allege that negligence he attributed to Wilcom was other than simple negligence;he characterized Wilcom’s omissions and commissions as careless,not willful,wanton,reckless or gross;he does not say that he was wronged by an intentional tort.
The short of it is that as to the releases here the effect of the exemptive clauses upon the public interest was nil.We find that each release was merely an agreement between persons relating entirely to their private affairs.In the absence of a legislative declaration,we hold that they were not void as against public policy….
Judgment affirmed with costs.