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Kimberly Anne Potrzebowski v. Redline Raceway

May 25, 2011

KIMBERLY ANNE POTRZEBOWSKI, PLAINTIFF,
v.
REDLINE RACEWAY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Mannion, M.J.

(RAMBO, D.J.)

MEMORANDUM AND ORDER *fn1

Pending before the court is defendants' motion for leave to file a third-party complaint. (Doc. No. 18). For the reasons set forth below, the defendants' motion is DENIED.

I. BACKGROUND

On May 23, 2008, plaintiff Kimberly Potrzebowski attended a motor vehicle race that her husband, AjayPotrzebowski, was competing in, at defendant Redline Raceway. Prior to competing in the race, Ajay Potrzebowski signed a Release and Waiver of Liability and Indemnity Agreement ("Indemnity Agreement") that provided:

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, infield, burn out area, shut down area, and all walkways, concessions and other areas appurtenant to any area where any activity related to the event shall take place), or being permitted to compete, officiate, observe, work for, or for any purpose participate in any way in the event, EACH OF THE UNDERSIGNED, for himself, his personal representatives, heirs, and next of kin, acknowledges, agrees and represents that he has or will immediately upon entering any of such restricted area, and will continuously thereafter, inspect such restricted areas and all portions thereof which he enters and with which he comes in contact, and he does further warrant that his entry upon such restricted area or areas and his participation, if any, in the event constitutes an acknowledgment that he has inspected such restricted area and that he finds and accepts the same as being safe and reasonably suited for the purposes of his use, and he further agrees and warrants that if, at any time, he is in or about restricted areas and he feels anything to be unsafe, he will immediately advise the officials of such and will leave the restricted areas: . . . .

2. HEREBY AGREES TO INDEMNIFY AND SAVE AND HOLD HARMLESS the releasees and each of them from any loss, liability, damage or cost they may incur due to the presence of the undersigned in or upon the restricted area or in any way competing, officiating, observing or working for, or for any purpose participating in the event and whether caused by the negligence of the releasees or otherwise. . . .

EACH OF THE UNDERSIGNED expressly acknowledges and agrees that the activities of the event are very dangerous and involve the risk of serious injury and/or death and/or property damage. EACH OF 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 the law of the Province or State in which the event 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. (Doc. No. 18-2 at 2). During the race, the plaintiff sat in the elevated spectator area in order to watch her husband compete. After the plaintiff's husband successfully completed the race, the plaintiff was invited to come down and join her husband who was in the lower pit area. In order to join her husband in the lower pit area, the plaintiff needed to use a staircase that went, from the elevated spectator area, down into the lower pit area. While walking down that staircase, the plaintiff allegedly fell and sustained injuries.*fn2

On April 5, 2010, the plaintiff commenced this action by filing a complaint, sounding in negligence, against defendants Redline Raceway; Barry Matthews, Sr., individually; and Barry Matthews, Sr. d/b/a Matthews Trucking; Brock Matthews and Barry Matthews, Jr. (Doc. No. 1). The parties subsequently entered into a stipulation agreeing to dismiss defendants Barry Matthews Jr., Brock Matthews and Matthews Trucking from this action. (Doc. No. 38). As such, the remaining defendants in this action are Redline Raceway and Barry Matthews Sr. Id.

On September 17, 2010, the defendants filed a motion for leave to file a third-party complaint that was accompanied by a brief in support. (Doc. No. 18), (Doc. No. 19). The gravamen of the defendants' motion is that the Indemnity Agreement requires AjayPotrzebowski to indemnify the defendants for any liability or damages they may incur due to the plaintiff's injuries, and, as such, he should be joined as a third-party defendant in this action. On September 28, 2010, the plaintiff filed a brief in opposition, as well as a response to the defendants' motion. (Doc. No. 21), (Doc. No. 22). On October 12, 2010, the defendants filed a reply brief. (Doc. No. 25).

On October 20, 2010, the undersigned held oral argument on defendants' motion for leave to file a third-party complaint. (Doc. No. 26). Following oral argument, the court ordered additional briefing with respect to the relevant language in the Indemnity Agreement. Id. As such, on November 12, 2010, the defendants filed a supplemental brief in support, (Doc. No. 31), and, on December 9, 2010, the plaintiff filed a supplemental brief in opposition, (Doc. No. 34). Thus, this motion is ripe for our consideration.

II. LEGAL STANDARD

Defendants' motion for leave to file a third-party complaint is brought pursuant to Rule 14(a). Rule 14(a) provides that "a defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it." Fed. R. Civ. P. 14(a)(1). Moreover, Local Rule 14.1 provides that:

A motion by a defendant for leave to join a third-party defendant under Fed. R. Civ. P. 14(a) shall be made within three (3) months after an order has been entered setting the case for trial, or within six (6) months after the date of service of the moving ...


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