
    [No. B007733.
    Second Dist., Div. Two.
    July 8, 1985.]
    MICHAEL McATEE et al., Plaintiffs and Appellants, v. NEWHALL LAND & FARMING CO., INC., et al., Defendants and Respondents.
    
      Counsel
    Robert S. Fink for Plaintiffs and Appellants.
    Childers & Dickinson, Lenore O. De Vita and Walter K. Childers for Defendants and Respondents.
   Opinion

ROTH, P. J.

Appellants Michael McAtee and Jed Seybold were injured while participating in a motorcycle, or “motocross,” race sponsored by respondent American Motocross Enterprises, and held on land owned by respondent Newhall Land & Farming Co., Inc. which had been rented to the sponsor for the purpose.

As a condition to entering the race appellants each signed a “Release and Waiver of Liability and Indemnity Agreement,” exact copies of which we attach as appendices to this opinion.

Based upon the injuries they suffered, appellants brought suit on the dual theories of general negligence and negligence associated with the ownership or possession of real property. After answering the complaint, respondents moved for summary judgment premised upon the respective release and waiver agreements. That motion was granted, the trial court expressing its reasoning as follows: “The Court: How could this be more clear, this release?

“If I were to agree with your position, Mr. Fink, then no releases would ever be good, and as a practical matter, this business would probably go out of business.
“These people are going to engage in a motocross operation. They signed releases which say that it’s dangerous, that there are all sorts of problems and you are likely to get hurt. And the release language is as clear as it could possibly be.
“Now, they try to say it’s not a valid release, because the fellow didn’t stand in a particular place and say, ‘Don’t go this way. Go that way.’
“That is your case, and I find that release language to be totally unassailable.
“The Court: You know, I have only one set of eyes to give to this job, and I routinely refuse to read print that is too small. For example, I almost always routinely refuse to read any Los Angeles City ordinance presented to me in a newspaper printout, because it’s too much—I mean, I could read it if I put my eyes to it, but it’s too much strain. And I don’t do it.
“But this print is in big—not big, but it’s in clear, black type that I can look at without any problem whatsoever. I had no problem reading this thing.
“Again, I am looking here to the nature of the activity involved. ...”

In urging the reasoning employed and the result reached by the trial court were erroneous appellants rely upon the rationales and decisions found in Conservatorship of Link (1984) 158 Cal.App.3d 138 [205 Cal.Rptr. 513], Ferrell v. Southern Nevada Off. Road Enthusiasts, Ltd. (1983) 147 Cal.App.3d 309 [195 Cal.Rptr. 90], and Celli v. Sports Car Club of America, Inc. (1972) 29 Cal.App.3d 511 [105 Cal.Rptr. 904]. We are of the opinion, however, that none of these cases is dispositive of the matter before us, since each turned on critical facts not present here.

So, in Link a purported release agreement required as a condition of entry to a racing event was held unenforceable because it was printed in type which could not easily be read by persons of ordinary vision and because it consisted of two documents with different terms, which at best were unclear, not explicit and so lengthy and convoluted as to be incomprehensible; in Ferrell there was lacking adequate, clear and explicit exculpatory language in that no words such as “release,” “remise,” “discharge,” “waiver” or the like appeared in the document in question; and in Celli there was missing from the release agreement any satisfactory indication that the defendants there were to be absolved from the consequences of their own negligence.

Such being the case, we are rather of the view that the trial court’s determination herein must be tested by those general principles enunciated in Tunkl v. Regents of University of California (1963) 60 Cal.2d 92 [32 Cal.Rptr. 33, 383 P.2d 441, 6 A.L.R.3d 693], in the following fashion: “The cases have consistently held that the exculpatory provision may stand only if its does not involve ‘the public interest. ’ . . ..

“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.” (Id., at pp. 96, 98-101, fns. omitted.)

At the same time: “[N]o public policy opposes private, voluntary transactions in which one party, for a consideration, agrees to shoulder a risk which the law would otherwise have placed upon the other party, . . .” (Ibid., at p. 101.)

As can be seen, by no means other than a most strained construction could the exculpatory instrument in issue involve the public interest in terms of the described components. This, taken together with the fact the remaining characteristics of the instrument are not at odds with those condemned in the cases previously cited, compels the conclusion the trial court’s ruling under the circumstances present was correct.

The order appealed from is affirmed.

Beach, J., and Gates, J., concurred.

Appellants’ petition for review by the Supreme Court was denied October 16, 1985.

Appendix ENTRY FORM / EL&/77 -i < —— ^ _U2_,_ .... Y&iA ( tr *ge r-} \ •v* v MOING NO..... _ -CITY.. )J1 jit?! ll/[ :m —j» .T -¿E XSCRlRTlON AND LOCATION OF EVENT . n r.i n 11 OT. law » yrt) MINI E u MINI n MINI EXP RELEASE AND WAIVER OF LIABILITY AND INDEMNITY AGREEMENT IN CONSIDERATION of being permitted to enter lor tny purpose eny RESTRICTED AREA (herein defined os including but no* limited to the racing surface, pit areas, infield, burn out area, approach area, shut down area, and all walkways, concessions ano other areas appurtenant to any area where any activity related to the event shall take place), or being per. n.ted to compele olliciate. observe, work for, or for any purpose participate In any way in the event, EACH OF THE UNDERSIGNED, for himself. Ms personal representatives, heirs, and next of km. acknowledges, agrees and represents that he has. or will Immediately upon entering any of such restricted areas, and will continuously thereafter, inspect auch restricted aréis and all portions thereof which he enters and'wllh which he comet In contact, and he does further warrant that his entry upon such restricted area or areas and Ms participation, if any. In the event constitutes an acknowledgement that he has Inspected such restricted area and that he linos 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, ha will immediately advise the officials o< such and will leave the restricted areas: 1. HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE American Motocross Enterprises. Inc. Jerry J. end Shirley J. Shore, the promoter, participants, racing association, sanctioning organization or any subdivision thereof, track operator, track owner, officials, car owners, drivers, pit crews, any persons in any restricted area, promoters, sponsors, advertisers, owners and lessees of premises used to conduct the event and each of them, their officers and employees, all for the purposes herein referred to as "releases", from all liability to the undersigned, his personal representatives, assigns, heirs, and next of km tui any and all loss or damage, and any claim or demands therefor on account of injury to the person or property or resulting m di-jth of the undersigned, whether caused by the negligence of the releasees or otherwise while the undersigned is in or upon th. restricted area, and/or, competing, officiating in, observing, working for, or for eny purpose participating in the event; 2. HEREBY AGREES TO INDEMNIFY AND SAVE AND HOLD HARMLESS the releasees and each of them from any loss liability, damage, or coet they may incur due to the presence of the undersigned in or upon the restricted area or ■> any »ar competing, officiating, observing, or working for, or for any purpose participating in the event and whether caus -d by me negligence of th# releasees or otherwise. 3. HEREBY ASSUMES FULL RESPONSIBILITY FOR AND RISK OF BODILY INJURY. DEATH OR PROPERTY DAMAGE due-to the negligence of releasees or otherwise while in or upon the restricted area and/or while competing officiating ob- owing or working for or tor any purpose participating In the event. 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 c*prc >iy agrees that the foregoing release, waiver, end Indemnity agreement Is Intended to be as broad and inclusive as is permitted i y tnc ia* of the Province or Slate In which the event Is conducted and that if any portion thereof is held invalid, it is agree : that me balance shall, notwithstanding, continue In full legal force and effect. THE UNDERSIGNED HAS READ AND VOLUNTARILY SIGNS THE RELEASE AND WAIVER OF LlABll TY AND INDEMNITY AGREEMENT, and further agrees that no oral representations, statements or inducements apart from tnc foregomg written agreement have been made. NOTE YOUR MEMBERSHIP DOES NOT IN ANY WAY INCLUDE OR GUARANTEE TO YOU ANY INSURANCE COVERAGE OF ANY KIND. INSURANCE. IF ANY PROVIDED BY THE AMERICAN MOTO CROSS ENTERPRISES. INC . IS WITHOUT COST TO YOU AND MAY BE INCREASED. DECREASED, CANCELLED IN ANY WAY CHANGED BY THE INCORPORATION AT ANY TIME AT ITS SOLE DISCRETION. IF UNDER 18 YEARS SIGNATURE OF ARRlICAl SIGNATURE OF PARENT OR GUARDIAN (if tppKAfll it Wider IS r*wi...... WITNESS IS OF AGE^*üT>WZEO BIpNATUFltíÓF F <AM V Ventura Counties #1 DEALER SIMI VALLEY CYCLE v R M n U R 1» BTriA 2902 E. LOS ANGELES AVI .M.E. MEMBERS I AMAnA/JVlnlLU SIMI VALLEY, CA 93065 cut discount w Husqvarna ^UZUKI (805) 522-3434 ^ eeme in einell see why were * il

Appendix AMERICAN MOf tOSS ENTERPRISES. P.O. »•> 1421, Bmda, Cellf 15 (213) WI-S77B [ÑYRY FORM Te.-4/V] KA CJE ... /Z-/5- f*. , “ 15' 7“ ...>n J<'*cVÚ A/ A / . L// ,V-a< /' ■■ V;-'v<sr ...f " , t SIZE _ ^_ _ ¿-TiKt J . a'C. : A-, • / > « y ,S * i v: - . —. CITY J\f - - .... A í—' PHOHF ^ // "•* V á y i • , < . ,h" n ’ o u; J«. IHT. PRO n 11 a.f* ot iewer 30 vrel n i: i; MINI MINI Mini JR »- nr: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY AGREEMENT tN CONSIDERATION of being permuted to enter for any purpose any RESTRICTED AREA (herein defined as including but not .•mid to the racing surface, pit areas. Infield, burn out area, approach area, shut down area, and ail walkways, concessions and «riff areas appurtenant to any area where any activity related to the event shall lake place), or being permitted to compete. y'<iite. observe, work for, or for any purpose participate In any way in the event, EACH OF THE UNDERSIGNED, for himseil. «i personal representatives, heirs, and navi of km. acknowledges, agri-n and represents that he has. or will Immediately upon rnng any of such restricted aress, and will continuously thereafter, Inspoct such restricted areas and all portions thereof which ■<« enters and with which he comes In contact, and he does further ws'rant that ms entry upon such restricted area or areas and m participation. If any, in the event constitutes an acknowledgement that he has Inspected such restricted area and that he finds r< accepts the same as being safe and reasonably suited lor the purposes ot his use, and he further agrees and warrants that it r«fly time, he is in or about restricted areas and ha feels anything to bo unsafe, he will immediately advise the officials of such rc will leeve the restricted areas: I. HEREBY RELEASES. WAIVES. DISCHARGES AND COVENANTS NOT TO SUE American Motocross Enterprises. Inc., i v J. and Shirley J. Shore, the promoter, participants, racing association, sanctioning organization or any subdivision thereof. 7rt:aerator, track owner, officials, car owners, drivers, pit crews, any persons in any restricted area, promoters, sponsors, advertí7t, Miners and lessees of premises used to conduct the event and each of them, their officers and employees, all for the purposes 7'nn referred to as "releases", from all liability to the undersigned, his personal representatives, assigns, heirs, and next ot km for n md all loss or damage, end any claim or demands therefor on account of injury to the person or property or resulting >n death t the undersigned, whether caused by the negligence of the releasees or otherwise while the undersigned is in or upon the u stneted and/or, competing, officiating in, observing, working for, or for Any purpose participating in the event; * HEREBY AGREES TO INDEMNIFY AND SAVE AND HOLD HARMLESS the releasees and each of them from a iy loss damage, or coat they may incur due to the presence of the undersigned In or upon the restricted area or m , ny way 3~P<”ne. officiating, observing, or working for, or for any purpose participating In the event .and whether caused by the Vince of the releasees or otherwise. 1 HEREBY ASSUMES FULL RESPONSIBILITY FOR AND RISK OF BODILY INJURY. DEATH OR PROPERTY DAMAGE due 1 "■* negligence of releesees or otherwise while In or upon the restricted arse and/or while competing, officiating, obsewmg or *>k*>g lor or for any purpose participating In the event. OF THE UNDERSIGNED expressly acknowledges end agrees that the activities ot the event ere very danger .us and *<,rt tM risk of serious Injury and/or death and/or property damage EACH OF THE UNDERSIGNED further express), agrees 4J*'foregoing release, waiver, and Indemnity agreement la Intended to be as broad and inclusive as is permitted by me law * Province or State In which the event is conducted and that if any portion thereof is held invalid, it is agreed mat me-144164 shall, notwithstanding, continue In full legal force and effect. «LJÍ!!?ERS,0NED HAS REA0 and VOLUNTARILY SIGNS THE RELEASE AND WAIVER OF LIABILIT - AND .. ynity AGREEMENT, and further agre— Uni no Of.I representations, statements or Inducements ep.ri Worn the h income _ * «g-wmim hive Mn m«do. L’OllR MEMBERSHIP DOES NOT IN ANY WAY INCLUDE OR GUARANTEE TO YOU ANY INSURANCE COVERAGE •• .AKIND- INSURANCE, if ANY PROVIDED BY THE AMERICAN MOTO CROSS ENTERPRISES. INC.. IS WITHOUT '.L.V0U AND MAY BE INCREASED, DECREASED. CANCELLED IN ANY WAY CHANGED BY THE INCORPORATION TIME AT ITS SOLE DISCRETION. t ’ -AIDER 1| YEARS OF AGE, NOTARIZED SIGffATVRE OF'PARENT.OR GUARDIAN is required? Of i KAA'Y/' nuxrt '■fs.iyaAA. Si'/ J? y »*"*.*! Oh ttüAimijui —J. •/.' Áj • ' -''V * #Wr *• iWI #1 SQt) Ventura Counties #1 DEALER SIMI VALLEY CYCLE *•* «embers • 41 discount 2902 E. LOS ANGELES AVENUE SIMI VALLEY. CA 93065 ™ YAMAttA^JVIAICO ..................... NT -Husqvarna ^UZUKI reos) 52¿-3 «4 . ceimugi ¡¡ini sed? wiñty wsif© # 
      
      Appellants also maintain triable issues of fact were created by their assertion a representation by respondents to the effect a “flagman” would be stationed at the place where appellants were injured was fraudulently made. Suffice it to say no allegations respecting fraud were contained in appellants’ complaint and that in any event the showing with respect to the purported issue was inadequate for its intended purpose.
     