                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                 November 19, 2002 Session

CHARLES LEATHERWOOD, ET AL. v. JOSEPH SCOTT WADLEY, ET AL.

                A Direct Appeal from the Circuit Court for Henderson County
                    No. 99046     The Honorable Donald H. Allen, Judge


                   No. W2002-01994-COA-R3-CV - Filed February 11, 2003


        Plaintiff spectator/invitee was struck and injured by wheel that broke and caromed from
defendant driver’s racing vehicle during a stock car race at defendant-owner’s motor speedway.
Plaintiff brought claims against defendants alleging negligence, gross negligence, and strict liability
for failure to exercise the required degree of care in the operation of, or participation in, an
ultrahazardous activity, and included an additional action against defendant-driver seeking recovery
on strict liability grounds under the Tennessee Products Liability Act. Wife of spectator joined in
suit against defendants, seeking recovery for loss of consortium. The circuit court granted
defendants’ individual summary judgment motions. We affirm.


      Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and DAVID R. FARMER , J., joined.

J. Houston Gordon and Kim E. Linville, Covington, For Plaintiffs-Appellants, Charles Leatherwood
and Shelby Leatherwood

Russell E. Reviere, Keely N. Wilson, Jackson, For Defendant-Appellee, Wayne Moore
Wesley A. Clayton, Andrew V. Sellers, Jackson, For Defendants-Appellees, Joseph Scott Wadley
and Garnertown Speedway

                                             OPINION

        Plaintiff, Charles Leatherwood and wife, Shelby Leatherwood, filed suit for personal injuries
and loss of consortium respectively against defendants, Joseph Scott Wadley, Garnertown Speedway,
and/or Joseph Scott Wadley d/b/a Garnertown Speedway, and Wayne Moore. The complaint seeks
compensatory and punitive damages for alleged serious and permanently disabling injuries suffered
by the plaintiff, Charles Leatherwood, when he was struck by a wheel from the racing vehicle of
defendant Moore during a race at Garnertown Speedway, a permanent dirt race track owned and
operated by the defendant, Wadley. The complaint is premised primarily on the theories of
negligence and gross negligence and alleges that defendants are strictly liable for injuries that
resulted from the operation of or participation in the asserted ultra-hazardous activity of stockcar
racing. The complaint alleges that Moore is strictly liable for the injuries suffered by plaintiff
pursuant to T.C.A. § 29-28-102 as the manufacturer of the racing vehicle which he was driving.

        On August 28, 1998, Charles Leatherwood visited Garnertown Speedway for the purpose of
watching stock car races. Leatherwood traveled to the Speedway as the guest of Joe Richardson
(“Richardson”), and the two men were accompanied by Richardson’s son Bart, a race participant that
night, and one other gentleman. Leatherwood payed a $15.00 entry fee at the gate leading to the
Speedway pit area, $8.00 of which plaintiff believed “was made for the purpose of procuring
insurance to protect him in the event of any incident and/or accident on the premises.”1 Plaintiff
Leatherwood initially maintained that the August 28 race marked the first time that he had ever
attended an automobile or motor vehicle race. In plaintiffs’ Second Amended Complaint,
Leatherwood clarified that August 28 was the first time that he had ever attended an automobile or
motor vehicle race at this particular Garnertown Speedway location. However, in his deposition
testimony, Leatherwood acknowledged that the August 28 trip was his second visit to Garnertown
Speedway in 1998,2 and further noted that he had visited several racetracks in his lifetime, had been
a fan of racing since childhood, and had even participated in stock car racing in West Memphis in
1959 and 1960.

       In their Second Amended Complaint,3 plaintiffs contend that Leatherwood sustained serious
and permanently disabling injuries4 while attending the August 28 races at Garnertown Speedway,
when he was struck in the head and torso by a wheel that “suddenly and without warning” broke
from a car raced by defendant Moore during the final heat of the night, and “catapulted” into the pit




         1
            According to the deposition testimony of Ozella W adley, the mother of defendant Wadley and the person
respo nsible for selling passes at the pit gate on the evening of August 28, 1998, no part of the $15.00 admission fee
charged to spectators entering the pit area was collected for the payment of insurance. Ms. Wa dley noted that the extra
price charged to spectators for pit passes, as compared to the price charged spectators for general admission, was
assessed solely for the privilege of being allowed to watch the races from the pit area.

         2
         Leatherwo od further ad mitted that he watched races from the pit area during his first visit to Garnertown
Speedway in 1998.

         3
            Plaintiffs’ initial complaint listed Joseph Scott Wadley, Ozella Wadley, Jeff Wadley, Garnertown Speedway
and/or Joseph Scott W adley d /b/a G arnertown S peedway, Donnie M oore, M oore Brothers Truck S ales, Inc., W ayne
Moo re, and Moore’s Auto Parts & Machine Shop as defendants. Plaintiffs’ Second Amended Complaint, filed December
13, 200 1, listed J osep h Sco tt Wadley, Garnertown Speedway, and/or Joseph Scott Wadley d/b/a Garnertown Sp eedway,
and W ayne M oore as the sole defend ants.

         4
          Leatherwood asserts that he “suffered a severe spinal cord injury, injury to his neck, partial paralysis, and other
perm anent and d isabling injuries to be proven at trial.”

                                                            -2-
area where plaintiff was standing.5 Leatherwood conceded that at the time of his injury he was
standing in the pit area with his back to the racetrack, watching Richardson and his son load their
racing vehicle into a trailer.

         Garnertown Speedway is an oval racetrack that was built in 1994 by defendant Wadley’s
father. The track consists of two primary spectator areas, the grandstands (general admission) and
the pit area. As stated, spectators are required to pay a higher admission price for entry into the pit
area. At least a portion of the pit area is protected from the racetrack by a fence and several concrete
barriers. Leatherwood testified in his deposition that he did not remember any warning or danger
signs posted around the racetrack on August 28, but expressed uncertainty as to whether any signs
were actually affixed, stating: “I have no idea if there is or not. They may be out there now, or they
may have been there then. I can’t say whether it was or not because I did not see them.” Wadley
testified that warning signs were posted at the ticket booth and the pit gate on August 28. According
to Wadley, the sign located at the general admission ticket booth warned spectators that racing is
dangerous, while the pit gate sign provided a second warning that racing is dangerous and included
a statement that Garnertown Speedway was “not responsible for accidents from parts flying off of
vehicles or mud.”

        As the basis for their negligence and gross negligence claims against defendant Wadley and
Garnertown Speedway, plaintiffs assert that as a spectator, Leatherwood was a business guest or
invitee of Wadley and Garnertown Speedway, and was therefore owed a duty of care. Plaintiffs
further averred that Wadley was operating Garnertown Speedway without a license, in violation of
T.C.A. § 55-22-101, a Class A Misdemeanor.6 The Leatherwood’s maintained that Wadley’s
operation of Garnertown Speedway without a license “amounts to negligence per se as a matter of



         5
             Plaintiffs describe the accident as follows:

                    During the last race, as he raced his car around the Garnertown track, a wheel from
                    Defendant Moore’s vehicle failed and part of the wheel and tire on it catapulted
                    from the track and through the pit area, bounced acro ss the area, and struck the
                    Plaintiff, Charles Leatherwood, in his back and head, knocking him to the ground.”

Defendant Mo ore offered sworn testimony regarding the events surrounding the accident, explaining: “As I was entering
the turn I felt the car give, lay down on the right side, the right rear. The car just came to a stop because I knowed
something was broke, so I stopped the car.” Once his car had been towed from the track, Moore discovered that the
center had broken out of his right rear wheel. Moore replaced the damaged wheel, but did not retain the damaged
portion, and testified that he do es not posse ss, or know the where abo uts of, the wheel.

         6
             As part of their Answer to plaintiffs’ Second Amended Complaint, defendants W adley and Garnertown
Speedway summarily denied allegations that they were illegally operating an unlicensed race track in violation of T.C.A.
§ 55-2 2-10 1, and further denied that their alleged illegal operation constituted negligence per se. Ho wever, in his
deposition testimony, defendant Wadley confirmed that Garnertown Speed way was not a licensed racetrack on August
28, 1998, but maintained that he wa s not aw are of the license requirement until a cease and desist order was issued by
the State of Ten nessee . Wadley affirmed that he obtained a license to operate Garnertown Speedway upon learning of
the statuto ry requ irement.

                                                            -3-
law.” In support of their negligence and gross negligence claims against Wadley and Garnertown
Speedway, plaintiffs rely upon the following factual assertions in the “Second Amended Complaint:”

                  Plaintiff avers that the injuries he suffered were the direct and
                  proximate result of negligence, gross negligence, violation of state
                  statute and reckless disregard for the safety of others on the part of the
                  Defendants, Joseph Scott Wadley, Garnertown Speedway, and Joseph
                  Scott Wadley d/b/a Garnertown Speedway in that said Defendants,
                  and each of them, participated in, conducted, and operated an illegal
                  race track and, in addition thereto, committed the following acts of
                  negligence and gross negligence:

                  (e) Failure to provide adequate warning, and/or barriers to protect the
                  public, such as Charles Leatherwood from injury;

                  (f) Failure to adequately warn patrons, such as Charles Leatherwood,
                  of the dangers inherent in being near to or adjacent to a track while
                  automobiles were being raced;

                  (g) Failure to adequately inspect, check, or otherwise assure that the
                  automobiles being raced on the Defendants’ race track were properly
                  constructed, maintained, and/or repaired prior to allowing the same
                  to participate in any race;7

                  (h) Failure to coordinate the timing, and separation of racing events
                  in such a way that those, such as Plaintiff, Charles Leatherwood, who
                  were in or adjacent to the pit area and/or adjacent to the race track
                  area would have proper protection from incidents such as that
                  occurring herein;

                  (I) Failure to adequately post warnings and/or barriers and/or other
                  safety devices to prevent the injury to individuals;




         7
           In their Answer, defendants W adley a nd G arnertown S peedway denied that they were negligent or gro ssly
negligent in their inspection of automobiles participating in races at Garnertown Speedway on August 28, 1998. Wadley
admitted on deposition that he did not inspect defendant Moo re’s car at any time during the night in question. Jeffrey
W adley, the speedway technician, also failed to inspect Moore’s vehicle prior to defendant’s heat race, and confirmed
that he never sa w the broken wheel after the accident.

          W ith regard to the inspec tion process followed at G arnertown S peedway, defendant W adley admitted in his
deposition testimony that Garnertown Speedway has a mandatory vehicle inspection procedure for first-time participants,
but doe s not require safety check s for vehicles that have raced at defend ant speedway on prio r occasions.

                                                         -4-
                  (j) Failure to fully, adequately and completely advise patrons, such as
                  Plaintiff, Charles Leatherwood, attending a racing event of the hidden
                  danger of being close to and/or adjacent to the racing area;

                  (k) Failure to warn, announce, flag or otherwise advise patrons, such
                  as Charles Leatherwood, of the start of the race and to escort or
                  otherwise protect him from the dangers created thereby;

                  (l) Failure to properly design and/or create a safe and secure pit area
                  and race track.

        As stated, plaintiffs also asserted claims of negligence, gross negligence, and strict liability
against defendant Moore, premised on the following factual allegations:

                  Plaintiffs aver that the Defendant, Wayne Moore, is the designer,
                  assembler, fabricator, builder, owner, driver, and person responsible
                  for a certain racing vehicle raced at the Garnertown Speedway on
                  August 28, 1998. Said Defendant had a nondelegable duty to assure
                  that said vehicle was safe for use on the track and for racing thereon.
                  In breach of said duty, a wheel on the said Defendant Wayne Moore’s
                  race car was improperly constructed, installed and/or defective and,
                  as a result of such condition, the wheel came loose, broke off and/or
                  was thrown off of the vehicle, striking Plaintiff, Charles
                  Leatherwood.

                  Plaintiffs aver that the Defendant, Wayne Moore, was negligent and
                  grossly negligent in operating a racing vehicle on a track in close
                  proximity to patrons such as Plaintiff, Charles Leatherwood, which
                  was unreasonably dangerous or defective, inadequately maintained,
                  checked, inspected and/or repaired and, as a direct result of such
                  negligence and gross negligence, the said Defendant, Wayne Moore,
                  participated in an inherently dangerous activity without providing the
                  necessary precautions and protections to the public, and as a result
                  thereof, are liable to the Plaintiff, Charles Leatherwood, for the
                  injuries suffered herein as a matter of law.

                  Plaintiffs aver that the Defendant, Wayne Moore, is the designer,
                  assembler, producer and fabricator of a certain racing vehicle which
                  he assembled by placing an engine8 and other component parts into


         8
           Mo ore testified on deposition that he purchased the 350 Chevrolet engine that was in his car for the August
28 race from J. Dickens Engine Performance, and personally modified it to meet the “specs” listed in the Garnertown
                                                                                                          (continued...)

                                                          -5-
                  and on a GRT chassis, including wheels and tires9 and other parts and
                  equipment on said racing vehicle and is, therefore, a “manufacturer”
                  as defined by the Tennessee Products Liability statute, T.C.A. § 29-
                  28-101.

                  At all times pertinent herein, the Moore vehicle was in a defective
                  condition or unreasonably dangerous condition at all times while it
                  was within the control and possession of the Defendant, Wayne
                  Moore, who was the owner, maintainer, and operator thereof, and said
                  product (vehicle) was not altered by any third person.

                  As a result, the Defendant, Wayne Moore, is strictly liable for any and
                  all injuries suffered by the Plaintiffs herein as a result of the
                  unreasonably dangerous or defective nature of the product placed on
                  the race track and used by the Defendant, Wayne Moore, at all times
                  pertinent herein.

(Emphasis in original.)

      In addition to the negligence and gross negligence claims raised against Wadley, Garnertown
Speedway, and Moore, plaintiffs also included a claim of strict liability, asserting:

                  Plaintiffs aver that all of the above Defendants, Joseph Scott Wadley,
                  Garnertown Speedway and/or Joseph Scott Wadley d/b/a Garnertown
                  Speedway, Wayne Moore, and each of them, were voluntarily
                  engaged in an ultra-hazardous and extraordinarily dangerous activity
                  which required of them the highest degree of care and that, in
                  violation of such high degree of care, that the said Defendants
                  violated their duty of the highest degree of care and as a direct and
                  proximate result of such breaches, the Plaintiff, Charles Leatherwood,
                  suffered the injuries alleged herein.

                  The Plaintiffs aver that the operation and activities of conducting the
                  business of promoting the racing of automobiles on a race track
                  where the public is invited to observe imposed upon the said
                  Defendants’ strict liability for the operation of an inherently


         8
        (...continued)
Speedway rule bo ok for G RT racing vehicles.

         9
            George “Donnie” Moore, the brother of W ayne M oore, testified o n dep osition that he person ally put all four
wheel packages (the tire and the wheel) on Wayne M oore’s car while at Garnertown Speedway on August 28. When
questioned, Donnie Moore could not give a certain answer as to who had assembled the tire on the wheel. Donnie M oore
further testified that he only makes a visual inspection of the wheels prior to a race.

                                                           -6-
              dangerous and ultra-hazardous activity and, as a result of the
              operation of such activity, the Defendants, Joseph Scott Wadley,
              Garnertown Speedway and/or Joseph Scott Wadley d/b/a Garnertown
              Speedway, had a nondelegable duty to protect the Plaintiff, Charles
              Leatherwood, and are strictly liable to the Plaintiff, Charles
              Leatherwood, for his injuries as a matter of law under the common
              law of Tennessee.

              Plaintiffs aver that the Defendant, Wayne Moore, was likewise
              engaged in an ultra-hazardous and inherently dangerous activity and
              was participating in the racing of automobiles at an unlicensed and
              illegally operated race track in close proximity to the public, and as
              a direct and proximate result thereof, the Plaintiff, Charles
              Leatherwood, was injured. Under the common law of Tennessee,
              said Defendant had a nondelegable duty to protect Plaintiff, Charles
              Leatherwood, and is strictly liable to the Plaintiff, Charles
              Leatherwood, for his injuries resulting from their participation therein
              under strict liability.

(Emphasis in original).

        Defendants Wadley d/b/a Garnertown Speedway, and Moore both filed individual answers
to plaintiffs’ Second Amended Complaint. In their Answer, Wadley and Garnertown Speedway
denied all allegations of negligence, disclaimed that they were involved in an ultrahazardous and
abnormally dangerous activity, and asserted that “Defendants exercised that degree of care which
an ordinary person or entity would exercise under the circumstances existing at the time and place
of the incident.” Defendants Wadley and Garnertown Speedway raised additional affirmative
defenses, as quoted directly from their Answer:

               24. In the event that the Plaintiffs have set forth a prima facie cause
               of action as against these Defendants, these Defendants would rely
               upon the Doctrine of Modified Comparative Fault and seek to have
               their fault, if any, compared to the fault of the Plaintiffs. The
               application of the Doctrine of Modified Comparative Fault to this
               cause must result in no liability as against these Defendants or, in the
               alternative, in a reduction in liability as against these Defendants.

               25. These Defendants would allege that the sole and proximate cause
               of the injuries sustained by the Plaintiffs were by the negligent acts of
               the Plaintiff, Charles Leatherwood, including but not limited to the
               following:




                                                 -7-
               (a) Plaintiff failed to heed the warning signs and regulations posted
               at Garnertown Speedway.

               (b) Plaintiff failed to keep a proper lookout toward the direction of
               the race.

               (c) Plaintiff failed to heed the apparent verbal warnings that were
               sounded at the time just prior to the incident that were intended to
               alert Plaintiff of a possible accident.

               (d) Plaintiff negligently failed to avoid an accident upon the
               appearance of danger.

               26. These Defendants would further allege that Plaintiff, Charles
               Leatherwood, was guilty of negligence per se. Therefore, the Plaintiff
               may not recover from these Defendants.

               ******************************************************

               28. These Defendants would further allege that Plaintiff, Charles
               Leatherwood, by voluntarily entering a restricted area, assumed full
               responsibility for any risk of bodily injury, death, or property damage
               arising out of or relating to the racing events.

               29. These Defendants would allege that the incident on August 28,
               1998 was an unavoidable accident.

       In his Answer, defendant Moore also denied all allegations of negligence and liability levied
against him by plaintiffs. Moore admitted to working on the GRT vehicle that he raced at
Garnertown Speedway on August 28, but denied that he is a “manufacturer” under the Tennessee
Products Liability Act. Like defendants Wadley and Garnertown Speedway, Moore also raised the
affirmative defense of comparative fault.

         On November 1, 2001, Moore filed a Motion for Summary Judgment, along with a
memorandum in support of this motion. In his memorandum, Moore rebuffed plaintiffs’ allegation
of negligence, asserting that “the center of the wheel breaking off was a latent defect and thus it was
not a foreseeable event and defendants cannot be liable for any damages arising therefrom.” Moore
further argued that “[n]othing the defendants could or should have done would have informed them
that the center of the wheel contained a latent defect and was going to break.” Addressing plaintiffs’
strict liability claim for participation in the allegedly ultrahazardous activity of automobile racing,
Moore asserted that automobile racing, applying the factors set forth in Restatement (Second) Torts
§ 520, does not constitute an ultrahazardous activity.



                                                 -8-
        On January 18, 2002, Moore filed a second Motion for Summary Judgment to address
plaintiffs’ claim of strict tort liability under the Tennessee Products Liability Act, raised in their
Second Amended Complaint. Moore challenged that plaintiffs were not entitled to recovery under
the Tennessee Products Liability Act for the following reasons: (1) Leatherwood was not a user or
consumer of the alleged defective product (racing vehicle), but rather merely a bystander; (2) Moore
did not qualify as a manufacturer under T.C.A. § 29-28-101, as required by T.C.A. § 29-28-105; and
(3) plaintiffs failed to establish that Moore’s car was in a defective or unreasonably dangerous
condition as mandated under T.C.A. § 29-28-105.
        Defendants Wadley and Garnertown Speedway filed a single Motion for Summary Judgment
on February 6, 2002, along with a supporting memorandum of law. In their supporting
memorandum, defendants asserted that plaintiffs should be precluded from recovering damages for
Leatherwood’s injuries, on the basis that flying debris is an inherent risk associated with dirt track
racing. Defendants, as summarized in the following passage, contend that race spectators at
Garnertown Speedway assume the risk of injury from flying debris, and that Charles Leatherwood,
as an experienced race fan, was well aware of this risk:

                [I]t is well established that the Plaintiff should have been aware of
                any possible danger and should have taken some precautions for his
                own safety; however, at the time of the incident, the Plaintiff admitted
                to having his back to the racetrack. The Defendants aver that any
                reasonable spectator in the pit area could foresee that debris can enter
                the pit area in the event of an accident or mechanical failure. This
                risk of being hit by a loose wheel or other debris when watching a
                race from the pit area is a risk incidental to the entertainment and one
                that should be assumed by the spectator. Any law to the contrary
                would place an unreasonable burden upon the operator of the
                racetrack.

         Defendants alternatively suggested that if the court finds that plaintiffs are not precluded from
recovery, recovery should be predicated on the principles of negligence rather than the doctrine of
strict liability. Arguing against strict liability on the basis that automobile racing is not an
ultrahazardous activity, defendants asserted that they had no duty to inspect the racing vehicle, and
no reason to know of this particular alleged defective condition.

        On April 23, 2002, the circuit court entered an Order granting the summary judgment motion
of defendants Wadley and Garnertown Speedway. Finding that no genuine issue of material fact
existed as to the negligence and liability of Wadley and Garnertown Speedway, the court stated its
holding as follows:

                The Court finds that the activity of dirt track stockcar racing is not an
                ultra-hazardous or abnormally dangerous activity, and therefore, the
                claims of strict liability are dismissed and the Defendants’, Joseph
                Scott Wadley and Garnertown Speedway, Motion for Summary


                                                   -9-
               Judgment is granted on the claim of strict liability. Further, the Court
               finds that the Plaintiffs have failed to show that anything other than
               a latent defect in the wheel rim was the proximate cause of the
               accident. The Court finds that adequate warning signs were posted
               at the pit gate entrance at Garnertown Raceway and that the Plaintiff
               was a knowledgeable spectator of stockcar racing and did not take
               due care for his own safety by turning his back to the racetrack.

        That same day, the court entered a second Order granting defendant Wayne Moore’s Motion
for Summary Judgment. The court relied upon its ruling set forth in a letter dated March 8, 2002,
attached to the Order as an exhibit and incorporated by reference therein, in finding that no genuine
issues of material fact existed as to the negligence and liability of defendant Moore. With regard to
plaintiffs’ claim of strict liability under the Tennessee Products Liability Act, the court stated:

               1) The Court finds that the plaintiff, Charles Leatherwood, is not a
               user or consumer of the alleged defective product, i.e., the racecar,
               and therefore he is not entitled to recovery under the Tennessee
               Products Liability Act. Additionally, the Court finds that the
               defendant, Wayne Moore, did not sell any product that was defective
               and/or unreasonably dangerous and which caused harm to a user or
               consumer.

               Obviously, in this case, the plaintiff was simply a bystander spectator
               in the pit area of the Garnertown racetrack at the time of his injury
               and in no way could he be considered in a class of persons for which
               the Tennessee Products Liability Statute is intended to protect.

               2) The Court finds that the defendant, Wayne Moore, is not a
               manufacturer of this product, i.e., the racecar. Although the Court
               recognizes that the definition of a “Manufacturer” includes the
               “assembler of any product or its component parts,” it is equally clear
               that his racecar product was not assembled by Mr. Moore for the
               purpose of selling such product....

               3) The Court finds that the racecar as “assembled” was not
               “unreasonably dangerous” due to the defendant, Wayne Moore’s,
               negligent assembly or due to his failure to properly inspect or test the
               wheel. It does appear that some visual safety inspection of the car
               and the wheels was done by Mr. Moore or by his brother, Donnie
               Moore, prior to the defendant driving the racecar. Obviously, the
               defendant, Wayne Moore, would be the one person most likely to be
               injured as a result of his supposed negligent “assembly” of the
               racecar. I doubt that Mr. Moore would want to put himself or anyone


                                                -10-
               else at risk by driving an “unreasonably dangerous” or defective
               product.

               Clearly, the defendant would want to take all reasonable steps and
               precautions to insure his safety prior to driving this race car.
               Furthermore, under either the prudent manufacturer test and/or the
               consumer expectation test, the plaintiff has not shown that the
               defendant ever marketed the product or that Mr. Leatherwood was a
               consumer of the product.

(Emphasis in original).

        Addressing plaintiffs’ claim that Moore was engaged in an ultrahazardous activity, the court
determined, applying the six factors set forth in §§ 519 and 520 of the Restatement (Second) Torts,
that the “activity of dirt track, stock car racing is not an ultra-hazardous or abnormally dangerous
activity.” Finally, the court ruled that Moore was entitled to judgment as a matter of law on the issue
of negligence. As support for this ruling, the court noted that plaintiffs “failed to produce any
evidence showing that anything other than a latent defect in the wheel rim was the immediate cause
of the accident,” and further concluded that the “evidence shows that the defendant, Wayne Moore,
did take all reasonable steps to assure himself and others that the vehicle he was about to race was
safe under the circumstances.” In addition to these findings, the court took specific note of the fact
that Leatherwood was an experienced race spectator, that plaintiff was standing with his back to the
racetrack at the time of the accident, and the undisputed facts of the case indicate that warning signs
were posted at the pit gate entrance.

         Plaintiffs appealed, presenting the following issues for review: (1) Whether the trial court
erred in granting summary judgment in favor of defendants Wadley and Garnertown Speedway as
to the issues of negligence and gross negligence; (2) Whether the trial court erred in granting
summary judgment in favor of defendant Moore on the issues of negligence and gross negligence;
(3) Whether the trial court erred in finding that defendants Wadley, Garnertown Speedway, and
Moore “were not involved in an ultrahazardous or inherently dangerous activity to which strict
liability should apply;” (4) Whether the “trial court erred in finding, as a matter of law, that
Defendant Wayne Moore was not liable under strict products liability as defined in T.C.A. § 29-28-
102;” and (5) Whether the “trial court erred in failing to find that Plaintiffs were entitled to all
reasonable and favorable inferences” by refusing to apply an adverse presumption against defendant
Moore when Moore was unable to produce the broken wheel.

        A motion for summary judgment should be granted when the movant demonstrates that there
are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter
of law. See Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the burden of
demonstrating that no genuine issue of material fact exists. See Bain v. Wells, 936 S.W.2d 618, 622
(Tenn. 1997). On a motion for summary judgment, the court must take the strongest legitimate view
of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that


                                                 -11-
party, and discard all countervailing evidence. See id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn.
1993), our Supreme Court stated:

               Once it is shown by the moving party that there is no genuine issue
               of material fact, the nonmoving party must then demonstrate, by
               affidavits or discovery materials, that there is a genuine, material fact
               dispute to warrant a trial. In this regard, Rule 56.05 provides that the
               nonmoving party cannot simply rely upon his pleadings but must set
               forth specific facts showing that there is a genuine issue of material
               fact for trial.

Id. at 210-11 (citations omitted) (emphasis in original).

         Summary judgment is only appropriate when the facts and the legal conclusions drawn from
the facts reasonably permit only one conclusion. See Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.
1995). Since only questions of law are involved, there is no presumption of correctness regarding
a trial court’s grant of summary judgment. See Bain, 936 S.W.2d at 622. Therefore, our review of
the trial court’s grant of summary judgment is de novo on the record before this Court. See Warren
v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).

                                                  I.

       The first issue presented by plaintiffs for review is whether the trial court erred in granting
summary judgment in favor of defendants Wadley and Garnertown Speedway on the issues of
negligence and gross negligence.

        Tennessee courts have recognized, as a general rule, that “negligence cases are not amenable
to disposition on summary judgment unless from all the facts taken together and with all the
inferences to be drawn and facts and inferences are so certain and uncontroverted that reasonable
minds would agree.” Burgess v. Tie Co. 1, LLC, 44 S.W.3d 922, 923 (Tenn. Ct. App. 2000) (citing
Keene v. Cracker Barrel Old Country Store, 853 S.W.2d 501 (Tenn. Ct. App. 1992)). In order to
bring a successful suit based on a claim of negligence, the plaintiff must establish:

               (1) a duty of care owed by the defendant to the plaintiff; (2) conduct
               falling below the applicable standard of care amounting to a breach
               of that duty; (3) an injury or loss; (4) causation in fact; and (5)
               proximate, or legal cause.

Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn. 1993) (citing McClenahan v. Cooley, 806 S.W.2d
767, 774 (Tenn. 1991); Lindsey v. Miami Dev. Corp., 689 S.W.2d 856, 858 (Tenn. 1985)).

      Gross negligence is a “negligent act done with utter unconcern for the safety of others, or one
done with such a reckless disregard for the rights of others that a conscious indifference to


                                                 -12-
consequences is implied in law.” Odum v. Haynes, 494 S.W.2d 795, 807 (Tenn. Ct. App. 1972)
(citations omitted). “To prevail on a claim of gross negligence in Tennessee, a plaintiff must
demonstrate ordinary negligence and must then prove that the defendant acted ‘with utter unconcern
for the safety of others, or ... with such a reckless disregard for the rights of others that a conscious
indifference to consequences is implied in law.... ” Menuskin v. Williams, 145 F.3d 755, 766 (6th
Cir. 1998) (citing Odum, 494 S.W.2d at 807).

        Duty, the first element of a negligence claim, is the legal obligation a defendant owes to a
plaintiff to conform to the reasonable person standard of care in order to protect against unreasonable
risks of harm. McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995). Whether a defendant owes
a duty to a plaintiff in any given situation is a question of law for the court. Bradshaw, 854 S.W.2d
at 869.
        The existence and scope of the duty of the defendant in a particular case rests on all the
relevant circumstances, including the foreseeability of harm to the plaintiff and other similarly
situated persons. Pittman v. Upjohn Co., 890 S.W.2d 425, 433 (Tenn. 1994). Once duty is
established, the question of breach of duty and proximate cause of the plaintiff’s injury are usually
treated as questions of fact. We review the trial court’s decision granting summary judgment in
favor of defendants on the issues of negligence and gross negligence to determine if a genuine issue
of material fact exists as to whether defendants breached the duty of care owed to plaintiff and, if
so, whether said breach was the actual and proximate cause of Leatherwood’s injuries.

        In challenging the trial court’s Order granting summary judgment in favor of defendants
Wadley and Garnertown Speedway, plaintiffs suggest that reasonable minds could differ as to
whether: (1) Wadley posted adequate warning signs alerting spectators to the danger of flying objects
and informing them of the “safety, inspection, or nature of the cars being raced” on the Garnertown
Speedway premises; (2) defendants were negligent and/or grossly negligent in their inspection of the
vehicles racing at Garnertown Speedway; and (3) defendants failed to construct adequate barriers
to separate spectators from the racetrack.

         Taking the strongest legitimate view of the evidence in favor of plaintiffs as the nonmoving
party, and allowing all reasonable inferences in favor of plaintiffs, we find that no genuine issue of
material fact exists as to whether defendants Wadley and Garnertown Speedway breached the
applicable duty of care by failing to post adequate signs warning spectators that automobile racing
is dangerous, alerting them to the hazards of flying objects, and informing spectators of the nature
and safety of the racing vehicles, by neglecting to impose sufficient safety inspection measures, or
failing to build acceptable barricades.

       With regard to the issue of whether adequate signs were displayed at Garnertown Speedway
on August 28, Leatherwood testified in his deposition that he did not remember seeing any warning
signs posted. When questioned, Leatherwood offered the following responses:

                Q: Do you remember at the racetrack any signs being posted around
                the racetrack?


                                                  -13-
               A: No.

               Q: Do you remember specifically seeing any signs posted around the
               racetrack about any warnings or danger signs at all?

               A: No.

               Q: Do you know whether or not in fact there were any signs like that
               out there?

               A: I have no idea if there is or not. They may be out there now, or
               they may have been there then. I can’t say whether it was or not
               because I did not see them.

       As further support for his assertion that defendants failed to post adequate warning signs
around the speedway, Leatherwood referenced statements from the deposition testimony of Donnie
Moore, in which Moore recited that he only remembered seeing a warning sign posted at the pit
entrance or pit gate warning individuals to enter at their own risk. We quote the following exchange
between Donnie Moore and plaintiff’s counsel:

               Q: Now, you told me about the signing in and the what you believe
               to be a release, and you told me about the sign there that says enter at
               own risk or words like that. Any other warning signs around there?

               A: Not that I can think of offhand. I ain’t saying that there wasn’t,
               you know.

               Q: But you didn’t see them if there were?

               A: I don’t remember seeing them.

        Defendant Wadley testified that warning signs were posted at both the general admission
ticket booth and the pit gate. Wadley testified as follows:

               Q: All right. Were there any other requirements that you recall that
               [the insurance company] required you to do for safety purposes?

               A: Put up signs, warning signs, racing is dangerous.

               Q: Where? I’m going to give you the green Magic Marker on the
               signs. Where did you put up warning signs?



                                                -14-
A: Warning signs here at the ticket booth.

Q: All right. Put an “X” there at the ticket booth, then.

A: Then there’s warning signs here at the pit gate here also stating
racing is dangerous, not responsible for flying objects from cars, dirt,
debris, such as that.

******************************************************

Q: (By Mr. Gordon) And describe those signs for me.

A: Just large signs, large letters. One of them is I know red with
white writing warning in big letters not responsible for wrecks and
accidents, and another sign, I believe it’s a white and black, warning
not responsible for accidents from parts flying off of vehicles or mud.

Q: Where is that sign located?

A: They’re located on the gate that you drive right beside when you
go in. When you come to the gate you’ve to sign a pit form.

Q: And we’re talking about the pit gate now?

A: Yes, sir, the pit gate.

Q: What about the one at the general admission?

A: Where you walk through your gates to get your tickets at.

Q: And what does it say?

A: Warning, racing is dangerous, and it has some more things under
it.

Q: All right. And then at the pit gate what does that sign say?

A: The same thing, a warning sign stating racing is dangerous and not
responsible for flying objects, and that’s where you go through the
gate to bring your car in to enter the pit.




                                 -15-
        Mr. Leatherwood acknowledges that warning signs could have been posted but that he did
not see them. In any event, Mr. Leatherwood was a sophisticated race spectator and as such had
knowledge of the usual warnings to such spectators.

       Additionally, plaintiffs present no evidence to support a finding that defendants negligently
breached a duty of care by failing to post signs informing spectators of the inspection measures
required by Garnertown Speedway, or the dangerous construction of the racing vehicles.

       For the above reasons, we conclude that no genuine issue of material fact exists as to whether
defendants posted adequate warning signs at Garnertown Speedway.

        In considering whether a genuine issue of material fact exists as to the sufficiency of the
vehicle safety inspections required and performed by defendants, we note that the parties are in
agreement as to the fact that no routine safety inspections are performed on all of the cars prior to
the beginning of a race at Garnertown Speedway.10 It is undisputed that safety inspections are only
required of, and performed on, first-time entrants. Plaintiffs further contend, and defendants
concede, that no one from Garnertown Speedway inspected defendant Moore’s vehicle immediately
before or after the August 28 race. Plaintiffs have not stated any statutory or regulatory authority
requiring such inspections. Plaintiffs further assert that defendants neglected to impose safety rules
or requirements upon the race participants, for the safety and protection of spectators from known
dangers associated with the sport of automobile racing. Again, plaintiffs offer no evidence to
support this assertion. In fact, the following testimony of defendant Wadley reveals that defendant
explained Garnertown Speedway safety rules to all drivers and pit crew members prior to the
beginning of the race schedule, and alerted them to specific dangers in the pit area:

                  A: When they get there we have a brief meeting, ten to 15 minutes.
                  I ask them – I thank them all for being there and ask if they have a
                  rule book. If not, they need to have a rule book. I provide them with
                  one, which usually they get one at the gate when they come through,
                  or Jeff will give them one. I’ll go over all the safety rules. They have
                  to follow safety rules at all times on the track. Then I discuss race
                  procedures.

                  ******************************************************

                  Q: All right. If you would, then, look at the safety rules contained on
                  five, six and seven, I believe that covers all the ones that are in here,
                  and tell me if there are any other safety things that you tell people that
                  night.



         10
            The parties also agree that returning drivers are not required to provide any proof rega rding previous safety
checks, inspection records, or any other information pertaining to the performance or safety of the racing vehicle.

                                                          -16-
               A: I tell them any new drivers, any new cars, come to the tech area;
               the tech man needs to see you. I tell them to be aware of what’s
               happening on the track at all times, to listen to the loudspeakers and
               watch where they’re going in the pits for objects flying, for cars
               coming through the pits too fast, to watch for kids, anybody parenting
               watch their kids that could get loose in the pits and get hit. Other
               than that, that’s all I say.

               Q: Now, the people who attend, that’s the driver and the pit crew,
               correct?

               A: The driver, yes, sir.

               Q: And do children come up and listen to those instructions, too?

               A: Yeah, quite often.

               Q: All right. Is it a requirement that everybody in the pit area come
               up?

               A: Just a requirement for the drivers and the pit crew, and everybody
               else is asked to come as well.

               Q: Are there any other safety precautions taken other than the reading
               of those rules and the two signs you’ve told me and the red line
               barrier or the cable that you put there that you’re aware of?

               A: I’m not a tech man, but I try to walk by and look at the vehicles,
               see if they appear safe to me, and also I’ve got a backhoe I ride
               around on. I try to look at the vehicles when I go by. You know,
               that’s just habit, check.

Despite the above quoted testimony, plaintiffs fail to introduce evidence to dispute the fact that
defendants advised participants of Garnertown Speedway safety rules prior to the races.

        Because plaintiffs have not introduced any case law, statute, or regulatory authority to support
a finding of negligence on behalf of defendants, we find that no genuine issue of material fact exists
as to whether defendants negligently breached their duty of care by failing to conduct sufficient
safety inspections of all vehicles prior to the races. We further find that no genuine issue of material
fact exists regarding defendants’ alleged negligence in failing to advise or instruct drivers and pit
crew members of Garnertown Speedway rules and regulations.

       With regard to plaintiffs’ assertion that reasonable minds could differ as to whether
defendants were negligent in failing to construct adequate barriers around Garnertown Speedway to

                                                 -17-
separate the racing vehicles from spectators, we note that plaintiffs have introduced no evidence to
suggest that defendants were in breach of any statutory or regulatory authority pertaining to race
track construction or safety standards. Moreover, plaintiffs fail to explain the precise shortcomings
of the pit area barricades, and further neglect to identify the exact standard defendants have allegedly
violated. Plaintiffs appear to rely upon the general assumption that if adequate safety barriers were
in place on the evening of August 28, Leatherwood would not have been injured, and therefore,
because he was injured, the barricades could not have been in sufficient compliance with acceptable
safety norms. This assumption, unsupported by statutory or regulatory authority, is insufficient to
create a genuine issue of material fact as to whether defendant constructed inadequate barriers and,
if so, whether this failure constitutes a breach of the duty of care owed by Wadley and Garnertown
Speedway.

        For the reasons stated above, plaintiffs’ first issue is without merit.

                                                  II.

       Plaintiffs’ next issue is whether the trial court erred in granting summary judgment in favor
of defendant Moore on the issues of negligence and gross negligence. Plaintiffs argue:

                [R]easonable minds could differ whether said Defendant was guilty
                of negligence and/or gross negligence in his construction and/or
                assembly of a race car from parts of unknown origin, quality, and/or
                safety, and racing of the same at speeds of 80 to 90 miles per hour on
                an unlicensed dirt track without any type of inspection and/or
                verification of the safety of the cars, the wheels or the track.

         Beginning first with plaintiffs’ assertion that reasonable minds could differ as to whether
Moore acted negligently (at the very least) in building and assembling his GRT racing vehicle of
parts of unknown origin, quality, and safety, we are persuaded by defendant’s argument that the
“defect” that caused the center of the wheel to break was latent in nature, and therefore undetectable
and unforeseeable. The evidence is undisputed that both defendant Moore and his brother, Donnie
Moore, testified that they had never seen a racing wheel break from the center. Despite this
testimony, plaintiffs present no evidence to indicate that defendant Moore should have anticipated
or been aware of the possibility that his wheel would break from the center, and further fail to prove
that the particular wheel used by defendant during the August 28 race was known to possess such
a defect. Aside from defendant Wadley’s acknowledgment that wheels have been known to fly off
of cars during races, there is absolutely no evidence to prove that defendant Moore, under the
circumstances of this case, should have been aware of the specific defect that caused his wheel to
break. We therefore find that Moore’s knowledge or lack of knowledge regarding the origin, quality,
or safety of the “defective” wheel is irrelevant, as plaintiffs have failed to demonstrate that an issue
of fact exists as to whether the defect in this case was latent in nature. Without such evidence, there
can be no genuine issue of material fact as to whether Moore breached his duty of care to
Leatherwood.


                                                 -18-
         Plaintiffs’ assertion that participation in an automobile race on an unlicensed track constitutes
negligence, appears to be premised on the notion that the track is operated in violation of state
statute, anyone racing on the track is thereby engaged in a negligent act that threatens inherent danger
to spectators who have unknowingly visited an unlicensed track. It is undisputed that Garnertown
Speedway was not licensed on August 28, 1998. According to the deposition testimony of defendant
Wadley, defendant has since obtained a license to operate Garnertown Speedway. Wadley testified
that no one from the State of Tennessee inspected Garnertown Speedway prior to issuing the license,
as apparently the only requirement defendant Wadley had yet to fulfill was the payment of a $100.00
operating fee. On the basis of this undisputed testimony, we find that the track was not unlicensed
as a result of inadequate safety measures, or because it created an illegal and inherent risk to
spectators, but only because the owner had neglected to pay a mandatory operating fee. We therefore
find that no genuine issue of material fact exists as to whether Moore was negligent in participating
in a dirt track race at an unlicensed speedway, where the only reason for Garnertown Speedway’s
noncompliance with the Tennessee licensing statute was defendant Wadley’s inadvertent failure to
pay the required operating fee.
         Finally, as noted, plaintiffs have introduced no evidence to refute the fact that the accident
of August 28 was caused by a latent defect, the type of which Moore could not have foreseen or
prevented. For this reason, the issue of whether Moore was negligent in his alleged failure to inspect
or verify the safety of his wheels is foreclosed. On this basis, we find that plaintiffs have not
demonstrated a genuine issue of material fact as to whether Moore’s failure to inspect or verify the
safety of his wheels constitutes a breach of the duty of care allegedly owed to Leatherwood.11

       As stated, in order to prevail on a gross negligence claim in Tennessee, a plaintiff must first
prove ordinary negligence. See Menuskin v. Williams, 145 F.3d 755, 766 (6th Cir. 1998).
Therefore, because plaintiffs have not introduced sufficient evidence to support a claim of ordinary
negligence against Moore, plaintiffs’ gross negligence claim must also fall.

         This issue is therefore without merit.

                                                            III.

         The next issue presented by plaintiffs for review is whether the trial court erred in granting
summary judgment in favor of defendants Wadley, Garnertown Speedway, and Moore on the issue
of strict liability for operation and promotion of, or participation in, the ultrahazardous activity of
automobile racing. As part of their Second Amended Complaint, plaintiffs specifically assert:

                   [T]hat the operation and activities of conducting the business of
                   promoting the racing of automobiles on a race track where the public


         11
             As for plaintiffs’ assertion that Moore’s failure to inspect or verify the safety of the racetrack and the other
participating vehicles constituted negligence or gross negligence, we note that plaintiffs have not cited to any case law
or statutory authority to support a finding that a race car driver has committed a breach of his duty of care to a spectator
by failing to engage in a safety inspection of the track or other competing vehicles. Plaintiffs’ argument is therefore
without merit.

                                                           -19-
               is invited to observe imposed upon the said Defendants’ strict liability
               for the operation of an inherently dangerous and ultra-hazardous
               activity and, as a result of the operation of such activity, the
               Defendants, Joseph Scott Wadley, Garnertown Speedway and/or
               Joseph Scott Wadley d/b/a Garnertown Speedway, had a
               nondelegable duty to protect Plaintiff, Charles Leatherwood, and are
               strictly liable to the Plaintiff, Charles Leatherwood, for his injuries as
               a matter of law under the common law of Tennessee.

               Plaintiffs aver that the Defendant, Wayne Moore was likewise
               engaged in an ultra-hazardous and inherently dangerous activity and
               was participating in the racing of automobiles at an unlicensed and
               illegally operated race track in close proximity to the public, and as
               a direct and proximate result thereof, the Plaintiff, Charles
               Leatherwood, was injured. Under the common law of Tennessee,
               said Defendant had a nondelegable duty to protect Plaintiff, Charles
               Leatherwood, and is strictly liable to the Plaintiff, Charles
               Leatherwood, for his injuries resulting from his participation therein
               under strict liability.

(Emphasis in original).

        In Tennessee, defendants engaged in ultrahazardous activities are held strictly liable for
injuries caused to the person or property of another by defendant’s participation in the activity. See
England v. Burns Stone Co., Inc., 874 S.W.2d 32, 37 (Tenn. Ct. App. 1993). The negligence or
care exercised by the defendant in carrying out said activity is irrelevant. See Miller v. Alman
Constr. Co., 666 S.W.2d 466, 468 (Tenn. Ct. App. 1983) (citations omitted).

        This is a case of first impression in the State of Tennessee. Courts in this state have
traditionally classified ultrahazardous activities as those presenting an abnormally dangerous risk
of injury to persons or their property, including the carrying out of blasting operations, the storage
of explosives or harmful chemicals, and the harboring of wild animals. Our Supreme Court has
determined that automobiles are not considered “dangerous instrument[s], so as to be classed with
locomotive engines, dangerous animals, explosives, and the like....” Goodman v. Wilson, 129 Tenn.
464, 166 S.W.2d 752, 753 (Tenn. 1914). From this statement, one can naturally infer that the
operation of an automobile is not an ultrahazardous activity.

       Plaintiffs cite to the Restatement (Second) of Torts § 520, Abnormally Dangerous Activities,
as authority for the argument that automobile racing is an ultrahazardous activity, whereby a
defendant is subject to strict liability for any harm resulting from defendant’s engagement in said




                                                 -20-
activity. Section 520 sets out the following factors12 for determining whether an activity is
abnormally dangerous:

                  (a) existence of a high degree of risk of some harm to the person, land
                  or chattels of others;
                  (b) likelihood that the harm that results from it will be great;
                  (c) inability to eliminate the risk by the exercise of reasonable care;
                  (d) extent to which the activity is not a matter of common usage;
                  (e) inappropriateness of the activity to the place where it is carried on;
                  and
                  (f) extent to which its value to the community is outweighed by its
                  dangerous attributes.

Restatement (Second) of Torts § 520 (1977).

        Applying these factors to the circumstances before us, we note that although automobile
racing, as with many other sporting activities, carries with it a potential risk of injury to participants
and spectators voluntarily situated among the cars, competitors, and action of the pit area, such risk
of injury is incomparable to the high degree of risk normally associated with such ultrahazardous
activities as blasting and the storage of highly toxic chemicals. The potential risks are not sufficient
to impose the operator or participants with the duty of an insurer.

       We note that the racing of automobiles on a track constructed specifically for this purpose
has become a matter of common usage in the State of Tennessee and throughout the nation.
Comment (I) is particularly relevant to this point:

                  Certain activities, notwithstanding their recognizable danger, are so
                  generally carried on as to be regarded as customary. Thus
                  automobiles have come into such general use that their operation is
                  a matter of common usage. This, notwithstanding the residue of
                  unavoidable risk of serious harm that may result even from their
                  careful operation, is sufficient to prevent their use from being
                  regarded as an abnormally dangerous activity. On the other hand, the
                  operation of a tank or any other motor vehicle of such size and weight
                  as to be unusually difficult to control safely, or to be likely to damage
                  the ground over which it is driven, is not yet a usual activity for many
                  people, and therefore the operation of such a vehicle may be
                  abnormally dangerous.

Restatement (Second) of Torts § 520, cmt. (I) (1977).


         12
           No single factor is dispositive of the question of whether an activity is abnormally dangerous. In determining
whether the danger is abnormal, a court must balance all relevant factors.

                                                         -21-
Although comment (I) does not specifically address the act of driving a motor vehicle in a
competitive context, we are persuaded that the operation of a racing vehicle on a surface or track
specifically engineered and constructed for said operation, is more logically equated with the normal,
everyday use of a consumer vehicle, as compared to the rare and often destructive operation of a
tank. Further, this court is not convinced that stock cars and racing vehicles such as the one built
and operated by defendant Moore, are “of such size and weight as to be unusually difficult to control
safely....” Therefore, factor (d), in light of comment (I), weighs against a holding that automobile
racing is an ultrahazardous activity.

         Recognizing that automobile racing is a matter of common usage in the State of Tennessee,
we further note that Garnertown Speedway was an appropriate venue for this activity. Despite
plaintiffs’ suggestion to the contrary, the fact that Garnertown Speedway was an unlicensed racetrack
at the time of Leatherwood’s injury is irrelevant to the question of whether Garnertown Speedway
was an appropriate venue for automobile racing. Although Garnertown Speedway was not licensed
as of August 28, it was specifically constructed and recognized as a racing speedway, and therefore
the hosting of races at this location could not be deemed to create an abnormal risk of danger –
especially considering the fact that Garnertown Speedway was unlicensed only because defendant
Wadley inadvertently neglected to pay the required $100.00 operating fee, and not for the reason that
Garnertown Speedway was constructed in an abnormally dangerous or unsafe manner. Factor (e)
therefore argues against a finding that automobile racing, in the context of this case, was an
ultrahazardous activity.

        Factor (f) requires a court to weigh the benefits of the activity to the community against the
dangerous attributes of the conduct. Plaintiffs suggest that the racing of automobiles on an
unlicensed track “where inadequate safety measures were taken,” holds “no social value whatsoever”
to the community. We are unpersuaded by plaintiffs’ argument for reasons already discussed. First,
plaintiffs have produced no evidence to demonstrate that a genuine issue of material fact exists as
to whether appropriate safety measures were implemented at Garnertown Speedway. Second,
Garnertown Speedway was an unlicensed racetrack on August 28 solely because of defendant
Wadley’s inadvertent failure to pay a statutorily mandated operating fee, and not because the
speedway contained inadequate safety barriers or warnings. Therefore, § 502 (f) does not necessitate
a finding that automobile racing is an ultrahazardous activity.

       Based on our analysis and weighing of the § 502 factors, we conclude that Wadley’s
operation and promotion of automobile racing at Garnertown Speedway, and Moore’s participation
in the August 28 race, do not constitute abnormally dangerous activities to which strict liability
attaches.

       Our decision is further buttressed by a 1953 decision of the Superior Court of Pennsylvania.
Blake v. Fried, 173 Pa. Super. 27, 95 A.2d 360 (Pa. 1953). In Blake, Pennsylvania’s high court
considered plaintiff-spectator’s action to recover damages based on defendant-stadium owner’s
alleged negligent installation of a timber guard rail. Id. at 361. The Court drew the following
comparison between ultrahazardous and non-ultrahazardous activities:


                                                -22-
                Blasting is properly within the category of ultrahazardous activities
                but the analogy to the present situation is imperfect. Blasting
                involves such high degree of danger that the law, while not enjoining
                the activity because of its social utility, will nevertheless hold the
                blaster liable without a showing of negligence. It cannot with reason
                be said that a person who watches a stock car race from his seat in the
                stadium is exposed to danger of the same almost certain degree as he
                would be if he were in similar proximity to an explosion of dynamite.
                In the final analysis, whether or not the courts should impose absolute
                liability in connection with the maintenance of a particular type of
                activity is a problem in social engineering.

Id. at 365.

       We are persuaded by the reasoning and rationale of the Superior Court of Pennsylvania, and
on the basis of the arguments above, we find that the trial court did not err in concluding that
automobile racing is not an ultrahazardous activity. Plaintiffs’ issue is therefore without merit.

                                                   IV.

         The next issue for review is whether the “[t]he trial court erred in finding, as a matter of law,
that Defendant Wayne Moore was not liable under strict products liability as defined in T.C.A. § 29-
28-102.” Plaintiffs’ claim under the Tennessee Products Liability Act is premised on the argument
that Moore, as the manufacturer/assembler of the race car involved in the August 28 accident, is
strictly liable for any injuries suffered by Leatherwood “as a result of the unreasonably dangerous
or defective nature of the product placed on the race track and used by the Defendant, Wayne
Moore....”

        Section 29-28-105(a) provides:

                A manufacturer or seller of a product shall not be liable for any injury
                to a person or property caused by the product unless the product is
                determined to be in a defective condition or unreasonably dangerous
                at the time it left the control of the manufacturer or seller.

T.C.A. § 29-28-105(a) (2000).

“Manufacturer” is defined in T.C.A. § 29-28-102(4) (2000) to mean “the designer, fabricator,
 producer, compounder, processor or assembler of any product or its component parts.”

       Taking the record as a whole, and giving every reasonable inference in favor of plaintiffs as
the nonmoving party, we nonetheless find that no genuine issue of material fact exists as to whether
Moore is a manufacturer as defined in T.C.A. § 29-28-102(4). It is undisputed that defendant Moore
separately purchased and personally installed the engine, chassis, and wheel components of the car

                                                  -23-
he raced on August 28 at Garnertown Speedway. Plaintiffs maintain that Moore’s “assembly” of
the GRT racing vehicle qualifies defendant as a manufacturer under T.C.A. § 29-28-102(4). We
disagree.

          First, there is absolutely no case law or statutory authority in Tennessee to suggest that an
individual who “assembles” a recreational vehicle for his personal use and enjoyment qualifies as
a manufacturer under the Tennessee Products Liability Act. To extend this “manufacturer”
classification to persons who assemble such “products” for their own use, with absolutely no
intention of selling, delivering, or leasing the vehicle to another individual, would unnecessarily and
unjustly impose strict liability on people engaged in an acceptable practice of self-help or personal
fulfillment. This is evidenced by the provisions of T.C.A. § 29-28-102(8) referring to “the ordinary
consumer who purchases it” and “would not be put on the market by a reasonably prudent
manufacturer.” We find it difficult to imagine that the legislature intended to include as a
manufacturer, under the guidelines of the Tennessee Products Liability Act, a homeowner who
decides to assemble a riding lawnmower from spare parts for use on his own lawn, or an ambitious
teenager who undertakes to build his dream car from the ground up, using parts purchased from
various manufacturers and retailers. All such individuals, if we were to accept plaintiffs’
interpretation, would qualify as manufacturers under T.C.A. § 29-28-102.
          Second, the language of T.C.A. § 29-28-105(a) dictates that strict liability applies when
injury results from a product that is in a “defective or unreasonably dangerous condition at the time
it left the control of the manufacturer.” (emphasis added). From the above quoted language, we
note that a product must actually leave the control of the manufacturer, and infer that a party must
possess at least some shred of intent to voluntarily relinquish control of a product in order to be held
strictly liable as a manufacturer under the statute. The facts in this case reveal that the GRT racing
vehicle “assembled” by Moore never left the control of defendant, and there is absolutely no
evidence that Moore constructed the vehicle with the intention of selling, leasing, trading, or loaning
the car to another individual.

       For these reasons, we find that no genuine issue of material fact exists as to whether Moore
is a manufacturer under T.C.A. § 29-28-102.

        Plaintiffs additionally argue that Leatherwood, as an innocent bystander, is nonetheless
“entitled to recovery under strict product liability.” Our finding that Moore is not a manufacturer
under T.C.A. § 29-28-105 forecloses consideration of this issue.

                                                    V.

        The final issue on appeal is whether the trial court “erred in failing to find that Plaintiffs were
entitled to all reasonable and favorable inferences.” Specifically, plaintiffs argue:

                        Despite the fact that Mr. Moore does not know where the
                wheel is nor what happened to the wheel after the wheel flew from
                his vehicle, the learned trial court determined that there was a latent
                defect in the wheel which caused injury to Mr. Leatherwood and that

                                                   -24-
               the defect could not have been discovered. By making this
               determination, the court failed to apply the adverse presumption due
               to the loss or destruction of evidence and failed to draw all reasonable
               and favorable inferences in favor of the opponent of the motion for
               summary judgment.

       Plaintiffs’ argument is premised on the doctrine of spoliation of evidence. This doctrine
permits a court to draw a negative inference against a party that has intentionally, and for an
improper purpose, destroyed, mutilated, lost, altered, or concealed evidence. See Foley v. St.
Thomas Hosp., 906 S.W.2d 448, 453-54 (Tenn. Ct. App. 1995) (cited in Eady v. Cigna Prop. &
Cas. Companies, No. M1998-00524-SC-WCMCV, 1999 WL 1253092, at *2 (Tenn. Dec. 27,
1999)). See also Thurman-Bryant Elec. Supply Co., Inc. v. Unisys Corp., Inc., No. 03A01-
CV00152, 1991 WL 222256, at *5 (Tenn. Ct. App. Nov. 4, 1991).

         This record is devoid of any facts or evidence to suggest that Moore intentionally destroyed,
lost, or concealed the “defective” wheel for the improper purpose of keeping crucial evidence from
the court. Plaintiffs, moreover, fail in their brief to allege improper intent on Moore’s behalf. While
Moore admits that he removed the wheel from his car after the accident, and has no recollection of
where or whether he disposed of the “defective” part, this testimony, alone, is insufficient to
demonstrate the necessary intent required under this doctrine. On this basis, we find plaintiffs’ final
issue without merit.

                                                 VI.

       In conclusion, we affirm the trial court’s Orders granting summary judgment to defendants
Joseph Scott Wadley, Garnertown Speedway, and/or Joseph Scott Wadley d/b/a Garnertown
Speedway, and Wayne Moore. Costs are assessed against plaintiffs, Charles Leatherwood and
Shelby Leatherwood, and their sureties.




                                               __________________________________________
                                               W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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