First District restores drag racer's suit against car manufacturer over 2010 accident; affirms dismissal of others

By Kenneth Lowe | Sep 3, 2014


Two national car associations, as well as one of its owners and employees, cannot be held liable for the injuries drag racer Barbara Nesbitt sustained during a 2010 competition, but the maker of her racecar might be, an Illinois appeals panel held late last month.

In its Aug. 26 unpublished order, the First District Appellate Court affirmed a Cook County Circuit Judge William Gomolinksi's dismissal of Nesbitt's claims against the National Muscle Car Association (NMCA), Promedia LLC, the National Hot Rod Association (NHRA) and NHRA employee Ted Peters.

The panel, however, reversed the lower court's dismissal of Skinny Kid Race Cars LLC, saying it’s not clear whether the race car manufacturer should be released from liability based on the language of a waiver Nesbitt had signed and absolved the other defendants.

Justice John B. Simon wrote the panel's order, with Justices Laura C. Liu and Daniel J. Pierce concurring.

The ruling stems from a July 2012 lawsuit Nesbitt filed after she sustained injuries in August 2010, when her car crashed during a competition in Charlotte, North Carolina.

Nesbitt claimed the race car's drivetrain - the mechanical components that deliver power to the wheels of a car - failed during the competition and parts of it flew upward into the cockpit, causing her severe injuries.

The panel's order does not list her specific injuries, but published reports say the incident left Nesbitt with a shattered elbow, broken ribs and fingers, a bruised lung and full body contusions.

She sued the NMCA and Promedia as they sponsored and organized the event and the NHRA, which organizes and manages various races, because it required all vehicles to undergo an inspection and certification in order to participate in the competition.

Nesbitt accused Peters, an employee of NHRA, of negligently inspecting her vehicle and certifying as race-worthy even though it didn't have a metal shield and claimed "Skinny Kid negligently failed to design or install a metal shield to guard the drive train and that the racecar was defective and unreasonably dangerous," the order states.

The NMCA, NHRA,  Promedia and Peters sought dismissal of the suit based on a waiver Nesbitt had signed prior to the event that they asserted absolved them of liability for her injuries.

The waiver, according to the panel's order, stated, “[Nesbitt] hereby assumes full responsibility for any risk of bodily injury, death or property damage arising out of or related to the event whether caused by the negligence of the releasees or otherwise."

Skinny Kid likewise argued it was not responsible for the car’s failure on the track.

"Due to the hazards involved with racing, Skinny Kid Race Cars accepts no liability for failure of racing components or accessories manufactured or sold by Skinny Kid Race Cars and the Customer accepts all risks involved with racing and hazards thereof,” Simon wrote for the panel, citing an invoice Skinny Kid attached to all of its vehicles.

Gomolinksi, the trial judge, ruled in the defendants’ favor, dismissing the claims against them based on the waiver.

In her appeal, Nesbitt argued that the release and waiver of liability didn’t exculpate any of the defendants from liability for her injuries because none of the defendants were specifically named as parties to the release agreement.

“The beneficiaries of an exculpatory clause do not need to be specifically named in the agreement and the release need only designate a class of beneficiaries covered by the agreement,” Simon wrote.

Pointing to ambiguity in a clause that exculpates manufacturers and suppliers, the panel, however, said it doesn't think Skinny Kid is not covered under the release and as such, reversed its dismissal from the suit and remanded the matter for further proceedings.

“It is unclear whether the term ‘equipment and parts manufacturers and suppliers’ applies to Skinny Kid because Skinny Kid is alleged to have manufactured and supplied plaintiff's entire racecar, rather than merely a component part of the vehicle,” Simon wrote.

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