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PLEASE TAKE NOTICE, that Plaintiffs, by and through their counsel, The Lanier Law
Firm, shall move the Court before the Honorable David Hurd, United States Judge for the United
States District Court, Northern District of New York, Alexander Pirnie Federal Building, 10
Broad Street, Utica, New York 13501 on April 28, 2017 at 10:00 a.m., pursuant to Federal rule
of Civil Procedure 56 and Local Rules 56.1, 7.1(a)(3), and 7.1(c), and respectfully request that
the Court deny Defendants Motion for Partial Summary Judgment [Doc. No. 67] and grant
Several reasons require the Court to deny Defendants Motion. First, Defendants
reliance on the Empire Super Sprint membership form (ESS Release) and the Canandaigua
Motorsports Park form (CMP Release) (collectively Releases) fails because New York
General Obligations Law 5-326 renders these Releases wholly unenforceable; the Releases
did not unambiguously identify Defendant as a released party; Defendant was never a member
Case 7:15-cv-01023-DNH-TWD Document 71 Filed 04/11/17 Page 2 of 4
entitled to enforce the ESS Release; and the CMP Release lacked mutuality between decedent
Second, Defendant claims that indemnity language in the Releases bars the Wards
negligence and gross negligence claims and requires the Wards to indemnify Defendant.
However, Defendants Motion must be denied on this point because 5-326 renders these
indemnity provisions unenforceable; New York law precludes Defendant from using the
indemnity clauses as exemptions from liability for his gross negligence; the Wards first-party
claim against Defendant did not trigger the indemnity clauses; Defendant was not
unambiguously identified as an indemnitor under the Releases; and Defendant was never an ESS
member permitted to enforce the ESS Releases indemnity clause. Additionally, if the indemnity
clauses are enforceable, the Wards are likewise entitled to indemnity from Defendant for all
damages relating to his participation in the August 9, 2014 sprint car race.
Third, Defendant argues that the Wards lack sufficient evidence of Ward Jr.s conscious
pain and suffering. However, the summary judgment record shows that Ward Jr. consciously
suffered following initial impact with Defendants race car. And the only evidence proffered by
Defendant that could support summary judgment is that of Defendants expert pathologist.
Defendant has failed to demonstrate that his pathologist is qualified to ascertain whether Ward
Jr. died instantly, and the affidavit testimony is conclusory and unreliable.
Fourth, Defendant argues that the Wards lack sufficient evidence of Ward Jr.s pre-
impact terror. However, video evidence and eyewitness testimony easily demonstrate that Ward
Jr. braced himself for the severe impact and even made a desperateyet futileattempt to
scramble out of the path of Defendants car. This evidence defeats Defendants Motion on that
point.
Case 7:15-cv-01023-DNH-TWD Document 71 Filed 04/11/17 Page 3 of 4
Finally, all of Defendants claims or defenses that rely on any language in the Releases
fail as a matter of law. Thus, as a matter of law, the Releases do not bar claims for simple
Memorandum of Law and summary judgment evidence, Plaintiffs respectfully request that the
Court deny Defendants Motion for Partial Summary Judgment [Doc. No. 67] and grant
Respectfully submitted,
CERTIFICATE OF SERVICE
I state under penalty of perjury that a copy of the foregoing Plaintiffs Cross-Motion for
Partial Summary Judgment and Response to Defendants Motion for Partial Summary Judgment
Brian D. Gwitt
Woods Oviatt Gilman LLP
1900 Main Place Tower
Buffalo, NY 14202
Richard Smikle
Angela Krahulik
Eric McKeown
Ice Miller LLP
One American Square, Suite 2900
Indianapolis, IN 46282