MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                               FILED
this Memorandum Decision shall not be                                         Mar 29 2016, 9:02 am

regarded as precedent or cited before any                                            CLERK
court except for the purpose of establishing                                   Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                 ATTORNEY FOR APPELLEE
David M. Mattingly                                      Stephen W. Thompson
Angela Pease Krahulik                                   Stewart & Stewart Attorneys
Olga Voinarevich                                        Carmel, Indiana
Ice Miller LLP
Indianapolis, Indiana
John D. Cox
Lynch, Cox Gilman, & Mahan, P.S.C.
Louisville, Kentucky



                                          IN THE
    COURT OF APPEALS OF INDIANA

Sportsdrome Speedway, Inc.,                             March 29, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        10A01-1505-CT-341
        v.                                              Interlocutory Appeal from the
                                                        Clark Circuit Court
Jason Clark,                                            The Honorable
Appellee-Plaintiff.                                     Andrew Adams, Judge
                                                        Trial Court Cause No.
                                                        10C01-1307-CT-122



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016             Page 1 of 21
[1]   In this interlocutory appeal, Sportsdrome Speedway, Inc. (“Sportsdrome”)

      appeals the trial court’s denial of its motion for summary judgment in a case

      brought by Jason Clark (“Clark”) for injuries he sustained when a racecar hit

      him as he volunteered1 on the track for one of Sportsdrome’s races, held on

      June 18, 2011. On appeal, we address the following consolidated and restated

      issue: whether the trial court erred in denying Sportsdrome’s motion for

      summary judgment on Clark’s claim that Sportsdrome and its employees were

      grossly negligent and acted in a willful and wanton manner with regard to

      Clark’s safety.


[2]   We reverse and remand.




      1
        The parties disagree as to whether Clark was acting as an employee or a volunteer at the time of the
      incident. Clark recognized that he was filling in for one of Sportsdrome’s employees, yet claims that he was
      acting as a volunteer on June 18, 2011. Sportsdrome, however, maintains that Clark was in fact acting as its
      employee at the time he sustained his injuries. In interrogatories, Clark asked Sportsdrome what documents
      it had completed to support its position that Clark was an employee. In its answer to Interrogatory 20,
      Sportsdrome responded that: (1) it “had reported [Clark’s] injuries to its Worker’s Compensation carrier who
      paid out the sum of $30,999.00 for medical expenses”; (2) “[Clark] was told that he would be paid for that
      evening’s work on the date the accident happened”; and (3) “[Clark’s] duties were specifically explained to
      him by [Mike] Gibson and [Clark] agreed to the employment.” Appellant’s App. at 176. Sportsdrome
      maintains that if Clark was acting as Sportsdrome’s employee, Clark’s only remedy against Sportsdrome is
      under the Worker’s Compensation Act (“Act”). Id. (citing Ind. Code § 22-3-2-6) (rights and remedies granted
      to employee under Act on account of personal injury, exclude employee’s other rights and remedies against
      employer). This issue was not briefed by the parties, and its resolution has no bearing on the instant dispute.
      Accordingly, while we treat Clark as a volunteer for purposes of this memorandum decision, we do not
      decide or weigh in on any future determination of whether Clark acted as an employee or a volunteer on the
      night in question.

      Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016                Page 2 of 21
                                 Facts and Procedural History2
[3]   Between June 2009 through June 18, 2011, Clark volunteered at least sixty

      times at Sportsdrome’s racetrack. Sportsdrome provided Clark with free

      admission when he helped out during races. Clark was familiar with

      Sportsdrome’s racing events and the layout of the track, which was surrounded

      by a crash barrier and catch fence and could be used either as an oval track to

      run races clockwise or counter-clockwise, or in a figure-eight configuration.

      Some of Clark’s duties included helping Sportsdrome employees to monitor

      races, break up fights, keep spectators clear from the pit road entrance/exit gate

      (“pit gate”), and clean up accidents that occurred during races. This work

      required Clark to enter dangerous areas of the track that were off-limits to the

      general public. Therefore, at the start of each evening that Clark worked,

      Sportsdrome required him to sign a “Release and Waiver of Liability and

      Indemnity Agreement” (“the Release”). It was only after Clark executed the

      Release that Sportsdrome allowed him to work in restricted areas of the

      racetrack.




      2
       We heard oral argument on this case on January 21, 2016, in Indianapolis. We commend counsel on the
      quality of their written and oral advocacy.

      Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016         Page 3 of 21
[4]   The Release was created to indemnify Sportsdrome and waive any liability it

      might incur due to injuries or damages related to Sportsdrome’s own negligence

      or gross negligence.3 The Release 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, approach 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 . . ., acknowledges, agrees and
               represents that he has, or will immediately upon entering any of such
               restricted areas, 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 acknowledgement 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:
               1. HEREBY RELEASES, WAIVES, DISCHARGES AND
               COVENANTS NOT TO SUE THE . . . TRACK OPERATOR,




      3
        Sportsdrome contends that gross negligence does not exist under Indiana law, i.e., Indiana courts do not
      recognize gross negligence as being subject to any separate standard of care from that of negligence. See
      Wohlwend v. Edwards, 796 N.E.2d 781, 785, n.2 (Ind. Ct. App. 2003) (“Use of the term ‘gross negligence’ is
      inappropriate in Indiana because [Indiana’s] common law does not recognize degrees of negligence.”)
      (internal citations omitted). Sportsdrome maintains that mere negligence, simple negligence, significant
      negligence, or gross negligence are all simply negligence and any person can voluntarily agree to release
      another as to his or her negligent conduct. Our Supreme Court has noted, however, that negligence and
      gross negligence may be different in the context of what constitutes a breach and has defined gross negligence
      as: “‘A conscious, voluntary act or omission in reckless disregard of . . . the consequences to another party.’”
      N. Ind. Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 465 (Ind. 2003) (quoting Black’s Law Dictionary 1057 (7th ed.
      1999)). Here, we make no determination whether gross negligence exists in Indiana; instead, since both
      parties focus on the question of whether Sportsdrome acted in a willful and wanton manner, we do the same.

      Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016                 Page 4 of 21
        TRACK OWNER, . . . OWNERS AND LESSEES OF PREMISES
        USED TO CONDUCT THE EVENT(S), . . . AND THE
        DIRECTORS, OFFICERS, AGENTS AND EMPLOYERS, OF
        EACH OF THEM, ALL FOR THE PURPOSES HEREIN
        REFERRED TO AS THE “RELEASEES”, FROM ALL LIABILITY
        to the undersigned . . . for any and all loss or damage, and any claim
        or demands therefore on account of injury to the person or property or
        resulting in death of the undersigned, whether caused by the
        negligence or gross negligence of the “RELEASEES” or otherwise
        while the undersigned is in or upon the restricted area, and/or
        competing, officiating in, observing, working for, or for any purposes
        participating in the EVENT(S).
        2. HEREBY AGREES TO INDEMNIFY AND SAVE AND HOLD
        HARMLESS THE “RELEASEES” and their insurance carriers 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 . . . observing, or working for, or for any purpose
        participating at any time in the EVENT(S) and whether caused by the
        negligence or gross negligence of the “RELEASEES” or otherwise.
        3. HEREBY ASSUMES FULL RESPONSIBILITY FOR AND RISK
        OF BODILY INJURY, DEATH OR PROPERTY DAMAGE DUE
        TO THE NEGLIGENCE OR GROSS NEGLIGENCE OF
        "RELEASEES" OR OTHERWISE while in or upon the restricted
        areas and/or while. . . observing, or working for, or for any purpose
        participating in the EVENT(S). . . . 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.
        THE UNDERSIGNED HAS READ AND VOLUNTARILY SIGNS
        THE RELEASE AND WAIVER OF LIABILITY AND
        INDEMNITY AGREEMENT . . . .
Appellant’s App. at 156.

Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016   Page 5 of 21
[5]   Prior to June 18, 2011, Clark was usually stationed with Leondal Vincent

      (“Vincent”), a friend at the track who mostly worked in the pit at Turn 1. Clark

      acted as an extra set of hands under Vincent’s specific direction and primarily

      helped clean the track after wrecks. The bulk of the remaining responsibilities

      fell to Vincent. On a few occasions, Clark was positioned at the Turn 4 pit gate,

      once with a track employee and a few other times with Vincent. Clark’s

      experiences working in Turn 4 were substantially similar to his experiences

      working in Turn 1; Clark was supervised by an employee who would instruct

      him when things needed to be done, but most of the time, Clark could just sit,

      watch the race, and chat with others in the pit area.


[6]   On the evening of June 18, 2011, Clark was running late and arrived at the

      track just as the races for the evening were about to begin. He signed the

      Release and was assigned to work at the Turn 4 pit gate as a stand-in for an

      employee who had not shown up for work. Clark retrieved a radio headset4

      and proceeded to Turn 4. Prior to that evening, Clark had never been stationed

      alone or unsupervised at Turn 4, but that night Clark was working alone at the

      Turn 4 pit gate. On the night of the accident, the races at the track were being

      filmed and monitored by Sportsdrome employee Greg Gibson from the position

      of an elevated scissor lift positioned in the main stretch of the racetrack.




      4
        Clark explained that the headset was used to listen to track officials, who would inform workers if a car
      needed to come off the track because of a safety issue or if there was something happening on pit road that
      the workers or volunteers needed to know about. Appellant’s App. at 145.

      Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016                Page 6 of 21
[7]   Although the track was almost entirely surrounded by a crash barrier, Clark’s

      assigned location at the Turn 4 pit gate had an opening through which cars

      entered and exited the racing surface. A number of races concluded that

      evening without incident; however, while Clark was still at the Turn 4 pit gate,

      an accident occurred on the racetrack that “caus[ed] a car to be propelled onto

      the crash barrier.” Id. at 61. “As that car continued down the crash barrier, it

      reached the area near which [Clark] was stationed, crossed the gap in the

      barrier, struck the barrier where it begins again on the other side of the opening,

      pivoted outward and landed on [Clark].” Id. at 61, 67. Clark sustained

      physical injuries, including a broken pelvis and tailbone, broken ribs, and cuts

      on his leg, one of which required stitches. Id. at 110-11.


[8]   Clark filed suit against Sportsdrome on May 31, 2013. In his complaint, Clark

      alleged that Sportsdrome was grossly negligent and acted in a willful and

      wanton manner because it knew of the risks to Clark, yet did not provide

      adequate assistance in the form of workers and volunteers, did not adequately

      train Clark, and stationed him alone and unsupervised in a dangerous area with

      which Clark was unfamiliar. Clark also alleged that Sportsdrome was grossly

      negligent and acted in a willful and wanton manner because it knew that the

      design and layout of its track was unreasonably dangerous, yet failed to take

      action to avoid the risk. Id. at 68-69.


[9]   About a year and a half later, Sportsdrome filed a motion for summary

      judgment and a brief in support thereof, arguing that it was entitled to summary

      judgment on the negligence claim because Clark signed the Release

      Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016   Page 7 of 21
       acknowledging that he was knowingly and willingly assuming risk of injury

       while working at the track. Id. at 16, 18-20. Sportsdrome also argued that

       Clark’s evidence, at best, supported a claim of negligence regarding training and

       track design—not willful and wanton misconduct—because there was no

       “proof of any actual knowledge by Sportsdrome or evidence that it consciously

       disregarded the natural consequences of its actions.” Id. at 16-17. Sportsdrome

       designated portions of Clark’s deposition in support of its position.


[10]   In his response in opposition to Sportsdrome’s motion for summary judgment,

       Clark conceded “that absent the allegation of willful and wanton conduct on

       behalf of [Sportsdrome], the [R]elease executed in this matter would dispose of

       [Clark]’s negligence claim.”5 Id. at 54. Clark, however, maintained that

       Sportsdrome had committed willful and wanton misconduct by failing to act in

       the face of actual knowledge of the natural and probable consequences of injury

       to Clark and its opportunity to avoid said risk. Id. at 54-55. In its answer to

       interrogatories, Sportsdrome stated that it had told Clark to stand “to the side of

       the exit gate from which cars were coming,” a location Sportsdrome claimed

       would have allowed Clark to avoid injury. Id. at 56; 174-75. Clark disagreed,

       arguing that he had been “instructed to stand on the opposite side of where the




       5
         Although the signature area of the Release contained the words, “I HAVE READ THIS RELEASE,”
       printed in red ink, Clark denied he had read the Release. Appellant’s App. at 140. Clark, however,
       acknowledged that he was familiar with the Release and knew that it “[p]rotect[ed] the track’s investments.”
       Appellant’s App. at 141. In other words, Clark knew that he was “releasing the track from liability if anything
       happened.” Id. He also knew that his ability to enter the restricted areas at the track was contingent on
       signing the Release. Id.

       Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016                 Page 8 of 21
       cars were coming from.” Id. at 55; 143. Further, Clark maintained that,

       because he was alone and unsupervised in an area that Sportsdrome knew was

       clearly dangerous, Sportsdrome should have explained Clark’s duties to him.

       Id. at 55. Accordingly, Clark asserts that his positioning near the track relative

       to the traffic flow and his lack of experience created a genuine issue of material

       fact as to whether Sportsdrome acted in a willful and wanton manner when,

       knowing of the probability that Clark would be injured, it did not instruct him

       to move.6


[11]   Sportsdrome filed its reply in support of its motion for summary judgment,

       reasserting that summary judgment was proper on Clark’s claim of negligence

       and on his claim of willful and wanton misconduct. Id. at 247-50. Sportsdrome

       noted that Clark had already conceded any claim of negligence against

       Sportsdrome and argued that his failure to meet his burden of providing the trial

       court with a factual or legal basis to support his willful and wanton misconduct

       allegations warranted the entry of summary judgment in Sportsdrome’s favor as

       to both claims. Id.


[12]   During the hearing on the motion for summary judgment, Sportsdrome argued

       that summary judgment in its favor was appropriate on the negligence claim

       because Clark had signed a Release on the day of, and prior to, the accident.




       6
         During the hearing on summary judgment, Clark made no argument regarding willful and wanton conduct
       as to the track design. Further, during oral argument, Clark’s counsel, responding to Judge Brown’s inquiry,
       stated that it had designated no evidence regarding the design of the track. It appears that Clark has dropped
       this claim.

       Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016                Page 9 of 21
       Tr. at 6. Sportsdrome maintained that Clark understood: (1) the restricted

       areas into which he was placed provided less protection, and therefore, were

       more dangerous; (2) the significance of the Release, having signed one on sixty

       prior occasions in exchange for free admission to the track; and (3) that the

       Release barred Clark from bringing any claims of negligence against

       Sportsdrome in connection with the June 18, 2011 accident. Id. Sportsdrome

       characterized Clark’s claim of willful and wanton misconduct as merely an

       attempt to avoid the constraints of the Release. Id. at 6-7. In response, Clark

       conceded, “If [the claim] was based solely on plain old negligence, we believe

       the Indiana Law bars recovery because of the [R]elease,” but asserted that, in

       the present case, Sportsdrome’s conduct was willful and wanton and the

       Release did not protect it. Id. at 19. Specifically, Clark argued that on June 18

       he was standing in for an absent racetrack employee at the Turn 4 pit gate—a

       place “where cars can come onto the track and exit the track to go to the pits”—

       and that Sportsdrome’s instructions to Clark and failure to supervise him placed

       him in harm’s way. Clark maintained that Sportsdrome knew that injury to

       Clark was probable, and therefore, its conduct was willful and wanton. Id. at

       11-13.


[13]   The trial court denied Sportsdrome’s motion for summary judgment without

       accompanying findings of fact or conclusions of law, “neither of which are

       required nor prohibited in ruling on summary judgment motions.” Smith v.

       Delta Tau Delta, Inc., 9 N.E.3d 154, 157 (Ind. 2014) (citing City of Gary v. Ind.

       Bell Tel. Co., 732 N.E.2d 149, 153 (Ind. 2000)). Its sole finding was, “[T]here is


       Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016   Page 10 of 21
       a genuine issue of material fact regarding the ‘wanton and willful’ misconduct

       or actions of [Sportsdrome] and/or its employees.” Appellant’s App. at 8.

       Sportsdrome filed its Motion for Reconsideration or, in the Alternative, to

       Certify for Interlocutory Appeal. The trial court certified the order, and our

       court accepted jurisdiction. Sportsdrome now appeals.


                                        Discussion and Decision
[14]   Challenging the denial of summary judgment, Sportsdrome asserts two

       principal claims: (1) the trial court erred in not granting Sportsdrome’s motion

       for summary judgment on Clark’s negligence claims; and (2) the trial court

       erred in denying Sportsdrome’s motion for summary judgment on Clark’s

       claims of willful and wanton misconduct.7 We review summary judgment de

       novo, applying the same standard as the trial court: “Drawing all reasonable

       inferences in favor of . . . the non-moving parties, summary judgment is

       appropriate ‘if the designated evidentiary matter shows that there is no genuine

       issue as to any material fact and that the moving party is entitled to judgment as

       a matter of law.’” Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (quoting

       Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009)). “A fact is ‘material’ if its

       resolution would affect the outcome of the case, and an issue is ‘genuine’ if a

       trier of fact is required to resolve the parties’ differing accounts of the truth, or if




       7
         We note that the trial court generally denied Sportsdrome’s motion for summary judgment, stating,
       “[T]here is a genuine issue of material fact regarding the ‘wanton and willful’ misconduct or actions of
       [Sportsdrome] and/or its employees.” Appellant’s App. at 8. Thus, it neither granted nor denied
       Sportsdrome’s motion with regard to Clark’s claims of negligence.

       Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016               Page 11 of 21
       the undisputed material facts support conflicting reasonable inferences.” Id.

       (quoting Williams, 914 N.E.2d at 761) (internal citations omitted)). If there is

       any doubt as to what conclusion a jury could reach, then summary judgment is

       improper. VanDam Estate v. Mid-Am. Sound, 25 N.E.3d 165, 168 (Ind. Ct. App.

       2015), trans. denied.


[15]   “Even though Indiana Trial Rule 56 is nearly identical to Federal Rule of Civil

       Procedure 56, we have long recognized that ‘Indiana’s summary judgment

       procedure . . . diverges from federal summary judgment practice.’” Hughley, 15

       N.E.3d at 1003 (quoting Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644

       N.E.2d 118, 123 (Ind. 1994)). “In particular, while federal practice permits the

       moving party to show that the party carrying the burden of proof lacks evidence

       on a necessary element, [Indiana] impose[s] a more onerous burden: to

       affirmatively negate an opponent’s claim.” Id. (quotation marks omitted). In

       other words, “In Indiana, the party moving for summary judgment has the

       burden of establishing that no genuine issue of material fact exists.” Dennis v.

       Greyhound Lines, Inc., 831 N.E.2d 171, 173 (Ind. Ct. App. 2005) (citing Jarboe,

       644 N.E.2d at 123), trans. denied. Only when the moving party has met this

       burden, does the burden shift to the non-movant to set forth specific facts

       demonstrating a genuine issue for trial. Pfenning v. Lineman, 947 N.E.2d 392,

       396-97 (Ind. 2011). The party appealing from summary judgment has the

       burden of persuading us that the grant or denial of summary judgment was

       erroneous. VanDam Estate, 25 N.E.3d at 168.




       Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016   Page 12 of 21
[16]   As a general rule, the law allows competent adults the utmost liberty in entering

       into contracts that, when entered into freely and voluntarily, will be enforced by

       the courts. Zollman v. Geneva Leasing Assocs., Inc., 780 N.E.2d 387, 392 (Ind. Ct.

       App. 2002). “A separate release agreement is a species of contract that

       surrenders a claimant’s right to prosecute a cause of action.” Id. “‘Our

       [S]upreme [C]ourt has stated that upholding releases serves an important public

       policy because it facilitates the orderly settlement of disputes.’” Id. (citation

       omitted). “The purpose of a release is to foreclose further claims.” Id. Here,

       Clark makes no claim that the Release was invalid. In fact, he concedes that

       the Release barred him from bringing a negligence claim against Sportsdrome.

       Appellee’s Br. at 1. To the extent that the trial court made no specific

       determination as to Clark’s negligence claims, it erred in failing to grant

       summary judgment in favor of Sportsdrome as to any claim of negligence

       brought by Clark due to the fact he had signed the Release.


[17]   Notwithstanding the protection provided by a release, “Indiana courts have

       recognized that the waiver of liability protection cannot provide a party the

       right to intentionally hurt someone, including by misconduct that is “willful

       and wanton.” See U.S. Auto Club, Inc. v. Smith, 717 N.E.2d 919, 924-25 (Ind. Ct.

       App. 1999) (upholding release as to such conduct is against public policy), trans.

       denied. See also State Grp. Indus. (USA) Ltd. v. Murphy & Assocs. Indus. Servs., Inc.,

       878 N.E.2d 475, 479 (Ind. Ct. App. 2007) (“Although we have found no

       Indiana decision indicating that a party may not contract against liability for

       intentional tortious acts, this rule has a general consensus among our sister

       Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016   Page 13 of 21
       states.”) (citations omitted). That being said, a contractual release cannot be

       avoided by “merely alleging intentional or near intentional conduct.”

       Appellant’s Br. at 12 (citing U.S. Auto Club, 717 N.E.2d at 925).


[18]   Sportsdrome maintains that Clark’s willful and wanton conduct claims should

       be resolved as a matter of law because there is no genuine issue of material fact

       regarding Sportsdrome having actual knowledge of a probable injury. Willful

       or wanton misconduct consists of either: “1) an intentional act done with

       reckless disregard of the natural and probable consequence of injury to a known

       person under the circumstances known to the actor at the time; or 2) an

       omission or failure to act when the actor has actual knowledge of the natural and

       probable consequence of injury and his opportunity to avoid the risk.” Ellis v. City

       of Martinsville, 940 N.E.2d 1197, 1204-05 (Ind. Ct. App. 2011) (citing U.S. Auto

       Club, 717 N.E.2d at 924) (emphasis added). “Whether the party has acted or

       failed to act, willful and wanton misconduct has ‘two elements: 1) the

       defendant must have knowledge of an impending danger or consciousness of a

       course of misconduct calculated to result in probable injury; and 2) the actor’s conduct

       must have exhibited an indifference to the consequences of his own conduct.’”

       Miner v. Sw. Sch. Corp., 755 N.E.2d 1110, 1113 (Ind. Ct. App. 2001) (quoting

       Witham v. Norfolk & W. Ry. Co., 561 N.E.2d 484, 486 (Ind. 1990)). Our

       Supreme Court has accepted that “‘wanton and willful’ and ‘reckless’ seem to

       imply the same disregard for the safety of others.” Obremski v. Henderson, 497

       N.E.2d 909, 911 (Ind. 1986). Willful or wanton misconduct is “so grossly

       deviant from everyday standards that the licensee or trespasser cannot be

       Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016   Page 14 of 21
       expected to anticipate it.” Mohr v. Virginia B. Smith Revocable Trust, 2 N.E.3d

       50, 57 (Ind. Ct. App. 2014) (quoting Harper v. Kampschaefer, 549 N.E.2d 1067,

       1070 (Ind. Ct. App. 1990), trans. denied), trans. denied. “Willfulness cannot exist

       without purpose or design.” Id.


[19]   Clark contends that Sportsdrome’s willful and wanton conduct was its omission

       or failure to act when Sportsdrome had actual knowledge of the natural and

       probable consequence of injury to Clark and an opportunity to avoid the risk.

       In its motion for summary judgment, Sportsdrome claimed that Clark’s willful

       and wanton conduct claims should be resolved as a matter of law. Sportsdrome

       offered that Clark “failed to provide even an iota of evidence” to demonstrate

       that Sportsdrome or its employees engaged in a conscious act that they knew

       would probably result in injury to Clark. Appellant’s Br. at 15. Sportsdrome’s

       statement of insufficient evidence, standing alone, would not meet Indiana’s

       first burden for summary judgment because “[m]erely alleging that the plaintiff

       has failed to produce evidence on each element . . . is insufficient to entitle the

       defendant to summary judgment.” Dennis, 831 N.E.2d at 173 (citing Jarboe, 644

       N.E.2d at 123). In support of its claim, however, Sportsdrome designated

       portions of Clark’s deposition. That designated material revealed that Clark

       had volunteered at the track on sixty prior occasions over a two-year period,

       had seen frequent wrecks, yet had never seen or heard about a “racing car going

       over the crash barrier.” Appellant’s App. at 36-37. Additionally, Clark had seen

       only one car go into the pit and had heard about only one person being

       injured—an official who was stationed at a “flag stand” that was “right on the


       Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016   Page 15 of 21
       track pretty much.” Id. at 35. Sportsdrome’s showing of the relative absence of

       wrecked cars being propelled into the pit and the absence of injuries was

       enough to show that Sportsdrome lacked actual knowledge that injury to Clark

       was probable on June 18. The burden, therefore, shifted to Clark to show that a

       genuine issue of material fact existed.


[20]   Clark offers that there is a genuine issue of material fact regarding the exact

       position where he was told to stand. Id. at 55. In its answer to interrogatories,

       Sportsdrome stated that it told Clark to stand “to the side of the exit gate from

       which cars were coming,” a location Sportsdrome claimed would have allowed

       Clark to avoid injury. Id. at 56. In his deposition, Clark maintained that he

       had been “instructed to stand on the opposite side of where the cars were

       coming from.” Id. at 55 (citing Clark’s Dep. at 73-74). Further, Clark

       maintained that because he was alone and unsupervised, in an area that

       Sportsdrome knew was clearly dangerous, Sportsdrome should have explained

       Clark’s duties to him. Id. at 55-56. Accordingly, Clark asserts that his position

       near the track relative to the traffic flow and his lack of experience created a

       genuine issue of material fact as to whether Sportsdrome acted in a willful and

       wanton manner because Sportsdrome knew of the probability that Clark would

       be injured by standing on the wrong side of the pit gate, and it did not instruct

       him to move.8 We disagree.




       8
        Clark contends that Sportsdrome’s willful and wanton misconduct could be inferred from Sportsdrome’s
       procurement of liability insurance, as well as its mandatory requirement that participants each sign a Release.

       Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016               Page 16 of 21
[21]   Sportsdrome claims that this court’s decision in U.S. Auto Club v. Smith, with

       “substantially similar” issues, is dispositive and mandates that we reverse the

       trial court’s decision and grant summary judgment in favor of Sportsdrome.

       Appellant’s Br. at 16 (citing U.S. Auto Club, 717 N.E.2d at 924-25). In that case,

       Smith, a widow, filed a wrongful death action against the defendants (“USAC”)

       “for negligence, alleging that the design of the track and crowd control

       measures in the infield pits were inadequate.” U.S. Auto Club, 717 N.E.2d at

       921. Smith also alleged willful and wanton conduct as well as gross negligence,

       asserting that USAC was liable for her husband’s (“Larry”) injuries “because it

       knew or should have known of the dangerous conditions in the pit area and that

       injuries were likely to result.” Id. Smith asserted that USAC was liable because

       it breached a duty in failing to take even minimal steps to make the pits

       reasonably safe for those individuals who chose to remain in that area during

       the race. Id.


[22]   Prior to entering the pit area, Larry had signed a waiver agreeing to release

       USAC from all liability. Id. at 921. USAC raised the waiver as an affirmative

       defense to Smith’s negligence claims. Id. Smith responded that the release was

       not sufficient to bar her claims as a matter of law, and in the alternative, that

       even if the release was valid, USAC’s acts rose to the level of willful and




       Id. at 55-56. Assuming without deciding that inferences can be made from these documents, these
       documents provide no insight into what Sportsdrome knew about Clark’s probable injury on June 18. The
       only inference that could be drawn from these documents is that being in a restricted area of the Sportsdrome
       racetrack can be dangerous, a fact about which both parties agree.

       Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016              Page 17 of 21
       wanton misconduct. Id. at 922. To substantiate her willful and wanton

       allegations, Smith offered affidavits of various racing experts, who unanimously

       concluded that the safety design of the racetrack was in fact “reprehensible” and

       “grossly inadequate.” Id. at 924. USAC moved for summary judgment on

       both claims, but the trial court denied the motion, stating in part that “genuine

       issues of material fact remained as to whether USAC’s omission of safety

       devices in the infield as well as the purported defective design of the track

       amounted to willful or wanton misconduct.” Id. at 922.


[23]   On appeal, our court reversed the trial court’s decision, finding that the

       negligence claims were barred by the waiver and that “the designated evidence

       failed to demonstrate that USAC engaged in willful or wanton misconduct.”

       Id. at 925. In its decision, this court announced the legal standard for willful

       and wanton claims and noted that to establish that a defendant’s conduct is

       “willful and wanton[,]” a plaintiff must show “an omission or failure to act

       when the actor has actual knowledge of the natural and probable consequence

       of injury and his opportunity to avoid the risk.” Id. at 924 (citing Witham, 561

       N.E.2d at 486). Applying that standard to the facts, the court concluded that

       even the experts’ affidavits were insufficient to prove willful and wanton

       misconduct because nothing in the record suggested that USAC committed an

       act or omission that it knew was improper, and the allegation in the expert’s

       affidavits “fail[ed] to identify any specific factual evidence or foundation to

       support their conclusions about USAC’s actions.” Id. Stated differently, our

       court found, “[T]here is simply no evidence to support an inference that USAC


       Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016   Page 18 of 21
       believed the accident was imminent, likely or probable, much less that they

       willingly subjected themselves and their racing colleagues to such risks.” Id. at

       925. Finding no evidence in the record to support Smith’s claim that USAC

       acted in a willful or wanton manner, we reversed the trial court’s denial of

       summary judgment, remanded to the trial court, and ordered that judgment be

       ordered in USAC’s favor. Id.


[24]   Here, unlike Smith, Clark did not designate affidavits of testimony procured

       from well-known racing experts to support his willful and wanton claim.

       Instead, he argues that construing the record in the light most favorable to him

       it is clear that he was never given training or instruction on the proper way to

       monitor race traffic, he was told to stand on the wrong side of the Turn 4 pit

       gate—one of the most dangerous turns because it is not fully protected by crash

       barriers—and he volunteered alone in Turn 4. Appellee’s Br. at 10. Clark

       maintains that Sportsdrome knew that he was on the wrong side of the pit gate

       because, on the night of the accident, Sportsdrome employee Greg Gibson was

       filming the races from the position of an elevated scissor lift positioned in the

       main stretch of the racetrack. Clark contends that it can be inferred that Gibson

       knew Clark was in the wrong place, yet failed to alert Clark over the headset.

       Clark argues that these factors bear on the issue of whether Sportsdrome

       committed a willful or wanton omission. Id. Under the facts of this case, we

       disagree.


[25]   While some of these factors are admittedly in dispute, they do not constitute

       genuine issues of material fact. None of these allegations sheds light on the

       Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016   Page 19 of 21
       pivotal question—did Sportsdrome have actual knowledge that any of these

       events would result in probable injury to Clark. Here, it is not important

       whether Clark had training, was placed in an improper position in Turn 4, was

       stationed alone, or was not contacted through the headset. These factors do not

       speak to the issue of whether Sportsdrome knew that injury to Clark was

       probable. Clark had volunteered at the racetrack on sixty prior occasions and

       each time had been required to sign the Release. The Release revealed both

       parties’ understanding that the restricted areas of the racetrack were more

       dangerous than the areas open to the general public. Clark understood that

       accidents were frequent and even admitted that the “main reason” he started

       going to the track “was to watch the wrecks.” Appellant’s App. at 152. Even so,

       Clark had never seen a car go over a crash barrier, had only heard about one

       person being injured in the two years that he had volunteered at the track, and

       had only seen one car breach the entry to the pit.


[26]   On the night in question, a number of races concluded without incident;

       however, while Clark was still at the Turn 4 pit gate, an accident occurred on

       the racetrack that “caus[ed] a car to be propelled onto the crash barrier.”

       Appellant’s App. at 61. The car did not simply shoot into the Turn 4 pit gate;

       instead, “[a]s that car continued down the crash barrier, it reached the area near

       which [Clark] was stationed, crossed the gap in the barrier, struck the barrier

       where it begins again on the other side of the opening, pivoted outward and

       landed on [Clark].” Id. at 61, 67. The fact that a racecar entered the pit gate

       was unusual, and even more unusual was the fact that the car hit Clark. The


       Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016   Page 20 of 21
       record does not show that Sportsdrome had actual knowledge that an accident

       was probable, let alone that an injury to Clark was probable. Constructive

       knowledge is not sufficient, and where a plaintiff fails to provide adequate

       evidence for his allegations, Indiana courts do not hesitate to dispose of such

       claims as matter of law. Westray v. Wright, 834 N.E.2d 173, 181 (Ind. Ct. App.

       2005). In the absence of any genuine issue of material fact, the trial court erred

       when it denied Sportsdrome’s motion for summary judgment.


[27]   For the foregoing reasons, we reverse the trial court’s denial of Sportsdrome’s

       motion for summary judgment and remand with instructions to enter summary

       judgment in favor of Sportsdrome on Clark’s claims.


[28]   Reversed and remanded.


[29]   Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016   Page 21 of 21
